
    Attempts to Commit Arson
    February 27, 1940.
   Rutter, Deputy Attorney General,

—You request to be advised concerning what interpretation is to be placed upon section 908 of The Penal Code of June 24,1939, P. L. 872,18 PS §4908. This section is as follows:

“Section 908. Attempt To Commit Arson. — Whoever wilfully and maliciously, attempts to set fire to, or attempts to burn, or to aid, counsel or procure the burning of any of the buildings or property attached thereto, or in furtherance thereof, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to imprisonment for not more than two (2) years, or to pay a fine not to exceed one thousand dollars ($1,000), or both.

“The placing or distributing of any flammable, explosive or combustible material or substance, or any device, in any building or property in an arrangement or preparation, with intent to eventually, wilfully and maliciously, set fire to, burn the same, or to procure the setting fire to or burning of the same, constitutes an attempt to burn such building or property.”

Your communication inquires: What “buildings or property attached thereto”, mentioned in the first paragraph of section 908, quoted in toto, supra, are meant?

The Penal Code, supra, is, as the title thereof recites, “An act to consolidate, amend and revise the penal laws of the Commonwealth.”

Section 908 of The Penal Code, whereof you inquire, was derived from section 5 of the Act of April 25, 1929, P. L. 767, an act defining the crime of arson and of attempted arson, et cetera, as amended by the Act of June 12, 1931, P. L. 541. The said Acts of April 25, 1929, and June 12,1931, were repealed by article XII, sec. 1201, of The Penal Code, supra, 18 PS §5201. The provisions of The Penal Code relating to arson and analogous crimes are sections 905 to 909, inclusive, of article IX, 18 PS § §4905 to 4909, inclusive. The Act of 1929, supra, was in turn derived from the Criminal Code of March 31, 1860, P. L. 382.

The Act of March 31, 1860, supra, provided, in section 137, that the burning, or attempt to set fire to, any of enumerated buildings, should be arson. Section 138 of said act provided that anyone burning, or attempting to set fire to, any of certain designated buildings and property was guilty of a misdemeanor.

The Act of 1929, supra, defines arson in section 1; prescribes as a felony the burning of certain designated buildings and structures in section 2; penalizes as a felony the burning of certain personalty in section 3; and in section 4 deals with burning certain property with intent to defraud the insurer thereof. Section 5 of the act provides:

“Section 5. Any person who, wilfully and maliciously, attempts to set fire to, or attempts to burn, or to aid, counsel or procure the burning of, any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of a misdemeanor, and, upon conviction thereof, be sentenced to imprisonment for not less than one nor more than two years, or fined not to exceed one thousand dollars.
“The placing or distributing of any flammable explosive, or combustible material or substance, or any device, in any building or property mentioned in the foregoing sections, in an arrangement or preparation, with intent to eventually, wilfully and maliciously, set fire to or burn same, or to procure the setting fire to or burning of the same, shall, for the purposes of this act, constitute an attempt to burn such building or property.”

It will be noted that, in section 5 of the Act of 1929, quoted in full immediately above, the buildings and property are not enumerated specifically, but are referred to and incorporated by reference, by using the words: “mentioned in the foregoing sections”. (Italics supplied.)

The Penal Code, supra, in sections 905 to 908, inclusive, substantially reenacts the Act of April 25, 1929, supra. Section 908 of The Penal Code must be read, not alone, but together and along with the other sections thereof relating to arson and kindred crimes, to wit, sections 905 to 907, inclusive, and section 909.

The Statutory Construction Act of May 28,1937, P. L. 1019, 46 PS §501 et seq., provides, inter alia:

“. . . Every law shall be construed, if possible, to give effect to all its provisions. . . .
“When the words of a law are not explicit, the intention of the Legislature may be ascertained by considering, among other matters — (1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular interpretation . . .”: art. IY, sec. 51.
“In ascertaining the intention of the Legislature in the enactment of a law, the courts may be guided by the following presumptions among others:
“(1) That the Legislature does not intend a result that is absurd, impossible of execution or unreasonable;
“(2) That the Legislature intends the entire statute to be effective and certain . . : art. IV, sec. 52.
“Words and phrases which may be necessary to the proper interpretation of a law and which do not conflict with its obvious purpose and intent, nor in any way affect its scope and operation, may be added in the construction thereof”: art. IV, sec. 53.
“The title and preamble of a law may be considered in the construction thereof. . . . The headings prefixed to . . . sections ... of a law shall not be considered to control . . .”: art. IV, see. 54.

In view of the facts that: (1) The Penal Code is for the purpose of consolidating, amending, and revising the penal laws of the'Commonwealth; (2) sections 905 to 908, inclusive, of The Penal Code, were derived from the Act of April 25,1929, P. L. 767, as amended by the Act of June 12, 1931, P. L. 541; (3) section 5 of the Act of April 25,1929, P. L. 767, defined an attempt to set fire to, or burn, any of the buildings or property “mentioned in the foregoing sections”; (4) The Penal Code substantially reenacts the Act of April 25, 1929, P. L. 767, and was intended so to do; and (5) in view of the provisions of the Statutory Construction Act, supra, it is our opinion, and you are accordingly advised, that the first paragraph of section 908 of The Penal Code, supra, should be construed to read as follows:

“Section 908. Attempt To Commit Arson. — Whoever wilfully and maliciously, attempts to set fire to, or attempts to burn, or to aid, counsel or procure the burning of any of the buildings or property attached thereto, or in furtherance thereof, [mentioned in the foregoing sections 905, 906, and 907] is guilty of a misdemeanor, and • upon conviction thereof, shall be sentenced to imprisonment for not more than two (2) years, or to pay a fine not to exceed one thousand dollars ($1,000), or both.” (Words within brackets supplied.)  