# People v. Fanshawe > New York Supreme Court · July 7, 1892 · 19 N.Y.S. 865 URL: https://www.frixlaw.com/law-library/cases/5503123 ## Case - **Full name:** People v. Fanshawe - **Court:** New York Supreme Court - **Decided:** July 7, 1892 - **Citations:** 19 N.Y.S. 865; 8 N.Y. Crim. 326; 72 N.Y. Sup. Ct. 77; 47 N.Y. St. Rep. 331; 65 Hun 77 - **Precedential status:** Published - **Opinion:** Concurrence by Brunt - **Judges:** Brien, Brunt - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5503123 ## Opinion text Van Brunt, P. J. While concurring in the opinion of Mr. Justice O’Brien, it may not tie inappropriate to add a few words upon the point raised as to the construction to be given to section 490 of the Penal Code. The only difficulty which exists in reference to the legislation as contained in the Penal Code arises from the fact that the codifiers were not content with codifying the law as they found it, and as it had been expounded for over 50 years, but attempted to make plain that which was entirely clear before, and with the result usually attending such efforts of producing confusion and uncertainty. A person who willfully burns or sets on fire a building, structure, erection, vessel, car, or other vehicle is guilty of arson as such crime is defined by the Penal Code. Upon the part of the defendant it is claimed that because of section 490, which is as follows: “The burning of a building under circumstances which show beyond a reasonable doubt that there was no intent to destroy it is not arson,”—the defendant therefore was not guilty of arson. It may very well be claimed that this section has no application to the case at bar because the building in question was not burned. It was merely set on fire, but not destroyed. But it is not necessary to resort to any such special construction. If the claim advanced by the defendant is true, then the definitions of arson as contained in sections 486, 487, and 488 of the Penal Code are expressly repealed by section 490; and as to what is called a fireproof building the crime of arson has been abolished. A person may with impunity set on fire a portion of a building which is fireproof, and not be guilty of the crime of arson. We do not think that the legislature defined arson with so great particularity, and then intended to repeal absolutely the definition. The definition is particular; “A person who willfully burns or *877 sets on fire.” “Willfully burns” would seem to imply a destruction of the building; a simple setting on fire would imply that the building was not destroyed. Therefore, so far as the definition of arson is concerned, the question as to whether the building is destroyed or not is entirely immaterial. If it is willfully set on fire it is just as much arson as though the building was burned and destroyed. This being the definition of arson at the time of the codification, the codifiers seem to have been needlessly apprehensive lest some injustice might be done because of the breadth of the definition of arson; in other words,' that, in ease where a fire was started intentionally, but innocently, and for an innocent purpose, the person should not be guilty of arson, although the building might be destroyed, and such action might possibly come within the rigid definition of willfully burning or setting on fire. This apprehension was entirely groundless in view of the fact that it had been well settled that the intent with which the fire was started must be malicious in order to constitute the crime of arson. It was only for the purpose of preventing this forced construction of the previous definitions of arson that this section was inserted, and which was entirely new in the criminal law. Therefore the learned recorder was entirely correct in the charge which he gave in respect to the section in question. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5503123. Public record. Not legal advice.