N.C.P.I.—Crim. 215.11A

NOTE WELL: G.S. 14-58 divides common law arson into two

degrees: first degree arson for the burning of an “occupied”

dwelling and second-degree arson for the burning of an

“unoccupied” dwelling. Use this instruction when there is

evidence that the defendant burned a house that was used as a

home by someone, and in which someone was present at the

time of the burning.

The defendant has been charged with first degree arson.

Under the law and evidence in this case it is your duty to return one of

the following verdicts:

1. guilty of first degree arson;

2. guilty of second degree arson;1

3. guilty of burning an uninhabited house;1

4. not guilty.

For you to find the defendant guilty of first-degree arson the State

must prove five things beyond a reasonable doubt.

First, that the defendant burned 2 (describe structure).

Second, that this (describe structure) was an outbuilding within the

curtilage of a dwelling house. (A dwelling house is a house that is inhabited,

that is, a house that is the permanent, temporary, or seasonal residence of

some person.) 3 Curtilage means a piece of ground, either enclosed or not,

that is commonly used with a dwelling house. The curtilage of a house

includes the yard around the house.

Third, that this (describe structure) was an outbuilding within the

curtilage of a dwelling house of someone other than the defendant. 4

Fourth, that the dwelling house was occupied when the defendant

burned the (describe structure), that is, that some person was physically

present in the dwelling house at that time.

And Fifth, that the defendant did so maliciously, that is, that he

intentionally and without justification or excuse

a. [burned the (describe structure)]

b. [burned another structure, and that as a proximate result of his act,

the fire spread to the (describe structure)]. 5

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant burned (describe structure), and that

this (describe structure) was an outbuilding within the curtilage of a dwelling

house, and that it was the dwelling house of some person other than the

defendant, and that someone was physically present in the dwelling house

when the defendant burned the (describe structure), and that the defendant

burned

a. [(describe structure) maliciously]

b. [(describe other structure or place) maliciously, and that as a

proximate result of his act the fire spread to the (describe

structure)]

it would be your duty to return a verdict of guilty of first-degree arson.

If you do not so find, or have a reasonable doubt as to one or more of

these things, you would not return a verdict of guilty of first-degree arson

but you must determine whether the defendant is guilty of second-degree

arson. Second-degree arson differs from first-degree arson only in that the

State need not prove that the dwelling house was occupied at the time

(describe structure) was burned.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant burned (describe structure) and that

this (describe structure) was an outbuilding within the curtilage of a dwelling

house, and that it was the dwelling house of some person other than the

defendant and that the defendant burned

a. [(describe structure) maliciously]

b. [(describe other structure or place) maliciously, and that as a

proximate result of his act, the fire spread to the (describe

structure)]

it would be your duty to return a verdict of guilty of second-degree arson. If

you do not so find, or have a reasonable doubt as to one or more of these

things, you would not return a verdict of guilty of second degree arson 6 but

you must determine whether the defendant is guilty of burning an

uninhabited house. 7

For you to find the defendant guilty of burning an uninhabited house

the State must prove three things beyond a reasonable doubt:

First, that the defendant burned (describe structure).

Second, that this (describe structure) was within the curtilage of an

uninhabited house. (An uninhabited house is one that is fit to live in, but is

not being lived in.) 8

And Third, that the defendant did so wantonly and willfully, that is

deliberately and without justification or excuse. 9

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant burned (describe structure) and that

this (describe structure) was within the curtilage of an uninhabited house,

and that the defendant did so wantonly and willfully, it would be your duty

to return a verdict of guilty of burning an uninhabited house. If you do not

so find, or have a reasonable doubt as to one or more of these things, it

would be your duty to return a verdict of not guilty.