CHAPTER 17.-OFFENSES AGAINST PROPERTY

There are seven broad categories of offenses against property covered in this chapter. Arson and other property destruction offenses are covered in subchapter A; burglary and other criminal intrusion offenses in subchapter B; robbery, extortion, and blackmail in subchapter C; theft and related offenses in subchapter D; counterfeiting, forgery, and related offenses in subchapter É; commercial bribery offenses in subchapter F; and investment and monetary offenses in subchapter G.

SUBCHAPTER A.-ARSON AND OTHER PROPERTY DESTRUCTION OFFENSES

(Sections 1701-1704)

At common law, arson was the willful and malicious burning of the dwelling place of another, although the concept of dwelling house was gradually extended to include outbuildings within the curtilage and to barns. The gravamen of the offense was not conceived to be the destruction of property, but rather the endangerment of human life.2 No specific intent to destroy was necessary at common law, only an intent to burn, and as an element of the offense an actual burning or charring of the property was required. Because the emphasis was on security of another person in his dwelling, it was not an offense at common law to burn one's own habitation, whether as owner or tenant. This was the rule regardless of whether the purpose was to injure or defraud another.

3

The principal statutory modification of the common law arson doctrine in this country has been the shift in emphasis from protection of life to protection of property. Moreover, many other types of property besides dwellings have been included in statutory formulations of the offense. These statutes are usually keyed to a dollar amount relative either to the damage or the value of the property which is the subject of the offense. Finally, many State statutes have made it a crime for a property owner to burn his own property, provided it was done with an intent to defraud an insurance company or other person.

In order to encompass these various acts, the typical statute currently in effect contains a hybrid of crimes all grouped under the appellation of "arson." Although the common link of many State

1 See 2 Wharton, Criminal Law, section 388 (1951); 3 Coke Inst. 67.

2 See United States v. Cardish, 143 Fed. 640, 643 (E.D. Wis. 1906); Curtis, The Law of Arson, section 3 (1936).

3 See Curtis. supra note 2, at section 63.

See Annotation, Burning as an Element of the Offense of Arson, 1 A.L.R. 1163 (1919). 5 See 2 Wharton, supra note 1, section 400.

See Ill. Rev. Stat., Ch. 38, section 21-1; Proposed Crim. Code Mass., Ch. 266, section 1 (5).

7 See 2 Wharton, supra note 1, section 402.

See. e.g., the laws of Hawaii (H.R.S. §§ 723-1-723-10) and New Jersey (N.J.S.A. 2A: 89-1-89-6), both of which include in the same series crimes of property destruction, danger to life, and theft by fraud.

provisions in this area is the notion of burning as an instrument of destruction, the approach of S.1, as reported, is to define the crimes in series according to the nature of the harm done or contemplated. Thus, only property destruction is treated here in subchapter A of chapter 17. Where the purpose of the destruction is to endanger human life, the offense is covered also in chapter 16 (Offenses Against the Person), and where property is destroyed to defraud another, the offense is treated in subchapter D of chapter 17 (Theft and Related Offenses). Where the danger involves two or more kinds of harm other provisions of the proposed Code may be applied to reach all of the harmful results.

The scope of subchapter A of chapter 17 of S. 1, as reported, is essentially the same as that which exists under present law insofar as property destruction is concerned. The chief virtues of the subject bill are (1) the elimination of the extensive overlap of existing statutes and a substantial reduction in the number of separate provisions in Federal law; (2) the harmonization of the multiple and seemingly arbitrary standards of culpability and penalty levels that exist throughout the current statutes; (3) the clarification of the offense; and (4) the systemization of grading by treating property destruction distinctly without regard to such other offenses as fraud or the endangerment of life.10

Existing Federal law covers a wide variety of situations, with the jurisdictional base of most statutes fixed according to the particular type of property protected. It is, nevertheless, possible to group the statutes according to the principal interest they are intended to protect. The following discussion briefly describes those existing statutes which would be replaced in whole or in part by enactment of sections 1701-1704 of S.1, as reported.

The Mails or Interstate or Foreign Commerce

18 U.S.C. 844 (i) proscribes the attempted or actual malicious damage or destruction of property used in or affecting interstate or foreign commerce. The penalty is fixed at up to ten years' imprisonment; enhanced penalties may be imposed if injury or death results. Insofar as the statute is aimed at damage to property, it is largely duplicative of other provisions in existing law.

18 U.S.C. 1364 prohibits the damage or destruction of goods by fire or explosion, with intent to interfere with their exportation. The penalty is up to twenty years' imprisonment.

15 U.S.C. 1281 is a similar, though broader, statute which punishes the willful destruction or injury to any property moving in interstate or foreign commerce in the possession of a contract or common carrier. The penalty is fixed at up to ten years in prison.

18 U.S.C. 1703 and 1705 both proscribe the destruction of mail. Section 1703 (a) deals with mail other than newspapers and covers

The offense of reckless endangerment in Chapter 16, which encompasses a wide variety of conduct directed against human life. is also broad enough to embrace the type of conduct, separately embraced in S. 1 as originally introduced in the 93d Congress, of failure to control or report a dangerous fire. Under the definitions in section 111, conduct includes omissions as well as commissions. Thus, where a failure to perform a legal duty to report or control a fire creates a risk to human life or health, the reckless endangerment section may properly be invoked.

10 With respect to this latter aspect, as will be seen, many existing arson or property destruction statutes contain an enhanced penalty where serious bodily injury or death results. Under S. 1. as reported, this conduct can be separatey punished as homicide where, for instance, a death results from arson. See section 1601 (d) (4).

only postal employees. It carries a penalty of five years in prison. Section 1703 (b) covers postal employees destroying newspapers and other persons destroying any kind of mail. The penalty is up to one year in jail. Section 1705, on the other hand, prohibits the destruction of mail deposited in a letter box. The penalty is up to three years? imprisonment.

18 U.S.C. 1951, commonly referred to as the Hobbs Act, punishes, among other things, physical injury to property affecting commerce in furtherance of a plan to commit robbery or extortion. The statute carries a maximum penalty of twenty years in prison.11

Facilities of Commerce and Transportation

Three provisions of existing law deal with offenses committed against vehicles or facilities of commerce and transportation.

18 U.S.C. 32, is confined to aircraft, their parts, supplies, and facili ties. A general culpability level of "willful" applies to all of the designated offenses except for the actual damaging of an aircraft which requires a specific intent to "damage, destroy, disable, or wreck. Also included within the provision is the willful incapacitation of any crew member.

18 U.S.C. 33 provides similar coverage for motor vehicles engaged in interstate or foreign commerce as well as for terminals, garages, and other facilities for such vehicles. The section requires a specific intent to endanger the safety of a passenger or an act in reckless disregard of human life. Paralleling section 32 of current title 18 is a provision dealing with incapacitation of drivers and maintenance personnel. The general penalty in both statutes is a maximum of twenty years in prison.12

18 U.S.C. 1992 deals with train wrecking and includes the damaging of trains themselves as well as tracks, bridges, tunnels, and the like. Another part of the section prohibits tampering with signals, bridges, etc., with the intent to damage a train, track, bridge, tunnel, etc. The culpability, as in the previous two sections, is set at "willful" and the penalty is the same as under 18 U.S.C. 33.

18 U.S.C. 844 (i), discussed supra, provides parallel coverage for all of these interests where the damage is caused by an explosive. Special Maritime and Territorial Jurisdiction

Two groups of statutes in the present United States Code proscribe property destruction within the special maritime and territorial jurisdiction of the United States defined by 18 U.S.C. 7.

11 In addition several statutes punish related offenses not directly reached by sections 1701-1704 of the subject bill. Thus 18 U.S.C. 844 (d) covers transportation and receipt in interstate or foreign commerce of explosives with the intent to damage property or persons. Such conduct is largely covered under section 1821 of S. 1, as reported, but, under the proper circumstances, might constitute an attempt under this subchapter.

18 U.S.C. 1716 proscribes the mailing of enumerated types of materials, including flammables and explosives, that may injure life or property. If the mailing is done with intent to kill or injure another or to damage the mails or other property the maximum penalty is twenty years' imprisonment; if death results, the sentence is increased to life Imprisonment or death. It is also conceivable that conduct violating this provision would in some circumstances amount to an attempt to commit one of the crimes in sections 1701-1704 of S. 1. as reported.

18 U.S.C. 1952 punishes those who use the channels or facilities of interstate or foreign commerce, or the mails, to facilitate the commission of certain crimes in violation of State or Federal law, including arson. The penalty is a maximum of five years' imprisonment. Such acts with respect to arson would be treated in the Code as aiding or abetting offenses under section 401 (Liability of an Accomplice).

12 An enhanced penalty provision, where death occurs, is included in 18 U.S.C. 34 and involves a discretionary application of the death penalty.

18 U.S.C. 81 and 1363 are of general applicability within this jurisdiction. Of the two, section 81 is the narrower, being confined to actual arson; that is, it requires burning or attempted burning. Section 1363, on the other hand, prohibits destruction or injury by any means. Both sections use the same standard of culpability, i.e., "willfully and maliciously" and both use the same words to describe the type of property covered: "any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping ." The penalty provisions are likewise identical. Each carries a maximum sentence of five years in prison with an enhanced penalty, of twenty years' imprisonment, where a dwelling is involved or life is otherwise placed in jeopardy.

The second group focuses on vessels and their goods.

18 U.S.C. 2196 covers crew members who destroy property as the result of drunkeness or neglect. A maximum penalty of one year in jail is provided.

18 U.S.C. 2272-2276 cover damage to or destruction of vessels themselves. 13 Section 2272 punishes (with a maximum sentence of life imprisonment) any owner of a vessel who destroys his vessel for the purpose of defrauding an insurance company or injuring a merchant or coowner. Section 2273 punishes "willful" or "corrupt" destruction by a co-owner with a maximum sentence of ten years in prison. Section 2274 makes it a crime for the person in charge of a vessel to cause or permit its destruction or injury. A maximum penalty of ten years in prison may be assessed. Section 2275 covers the burning of vessels and their cargo as well as tampering with steering or power facilities and placing bombs or explosives on board. The section has been construed to cover acts tantamount to sabotage1 and carries with it a maximum penalty of twenty years in prison. Section 2276 is basically a burglary statute but also has provisions covering vandalism to vessels. The maximum penalty is five years' imprisonment.

Property of the United States

Several statutes cover the general area of damaging property of the United States.

18 U.S.C. 844 (f) is of the most recent vintage and is broadest in its coverage. It prohibits the malicious damage to or destruction of any property owned, possessed, used, or leased by any branch or agency of the United States and any property of any institution or organization receiving Federal financial assistance. The statute has a threetiered penalty provision providing for ten years in prison if the property is damaged, twenty years' imprisonment if personal injury results, and life imprisonment or the death penalty if death results. 18 U.S.C. 1361 covers willful damage to any property of the United States or to property "which has been or is being manufactured or constructed for the United States. . . ." The sentence varies according

13 In addition, other statutes in the series, 18 U.S.C. 2277 and 2278, deal with carrying explosives and dangerous weapons on board a vessel. To the same general effect is 46 U.S.C. 170. 18 U.S.C. 2271 provides coverage limited to conspiracies to destroy coupled with a fraudulent intent. None of these sections is directly covered by sections 1701-1704, altho nduct in violation of the former set of provisions might constitute an attempt of the section 1700 series of crimes.

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States v. Martini, 42 F. Supp. 502 (S.D. Ala. 1941).