Appeal from Circuit Court, Multnomah County. Jean L. Lewis, Judge. No. 40,860C.
Richard C. Goss, Portland, argued the cause for appellant. With him on the briefs was Legal Aid Service-Multnomah Bar Association, Inc., Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Fort, Judge.
This is an appeal from a finding that Cary Anderson, a minor, is within the jurisdiction of the juvenile court. We reverse.
On August 21, 1972, the juvenile involved in this proceeding, Cary Anderson, 13 years old, and Donald Madsen, 12 years old, were playing with Donald's motorcycle in the vicinity of the General Sheet Metal Works in Portland. It is undisputed that the boys entered an open area in the rear of the sheet metal shop to look for gasoline for the motorcycle. The area, which was open and unfenced, was used by the company as a loading dock, for painting, and for insulating duct work. There were several large cans of paint thinner under or near a work bench.
Donald poured some of the paint thinner onto the concrete floor, making a puddle six to eight inches in diameter. Donald testified that it did not smell like gasoline, but both thought that they could determine whether it was gasoline by seeing whether it would light. Both boys tossed a couple of matches onto the puddle, but the liquid extinguished the matches. Finally, Donald succeeded in lighting the puddle and it
began to burn out of control. He stamped on it to put it out but caught his shoe on fire. When the boys saw that the fire was growing large, they ran from the building. Just what happened next is not clear. The boys either ran or rode their bicycles to Donald's house, but it was locked. Then either Donald or his sister pulled a fire alarm at a street box. Meanwhile, the fire had spread to the work bench and some of the cans of paint thinner exploded.
Cary Anderson was found to be within the jurisdiction of the court for commission of acts which, if committed by an adult, would constitute arson in the second degree. ORS 164.315.*fn1 He contends on appeal, and the state concedes, that arson was not proven. We agree, since there is no evidence of intent to damage the building.
The state contends, however, that the evidence shows that Cary Anderson did commit reckless burning, a lesser included offense, and that we should affirm a conviction conforming to that offense. ORS 164.335 (1) states:
"A person commits the crime of reckless burning if he recklessly damages property of another by fire or explosion."
Both parties to this appeal have attempted to define the term "recklessly," but we choose to use the statutory definition ...