Appeal from the Circuit Court of Lake County, the Hon. John
Hughes, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Gary Johnson, the defendant, was charged by information in the circuit court of Lake County with aggravated arson in that he, on July 30, 1985, by means of fire, knowingly partially damaged a building of another, having reason to know that a person or persons were present therein, in violation of section 20-1.1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1(a)(1)). On motion of the defendant, the circuit court of Lake County dismissed the aggravated-arson charge against the defendant, holding that the section of the statute under which the information had been filed was unconstitutional. The State appealed to this court as a matter of right pursuant to Rule 603 (87 Ill.2d R. 603).
Section 20-1.1 of the Criminal Code of 1961, at the time of the judgment of the trial court, provided:
(a) A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and (1) he knows or reasonably should know that one or more persons are present therein or (2) any person suffers great bodily harm, or permanent disability or disfigurement as a result of the fire or explosion or (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion.
(b) Sentence. Aggravated arson is a Class X felony." Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1.
In People v. Wick (1985), 107 Ill.2d 62, this court held unconstitutional subsection (3) of section 20-1.1(a), which provided that the offense of aggravated arson is committed when a person knowingly damages a building by fire or explosive and a fireman or policeman is injured at the scene as a result of the fire. Our rationale was that because aggravated arson, as defined by the statute, does not require an unlawful purpose in setting a fire, the statute sweeps too broadly by punishing innocent as well as culpable conduct. In Wick we noted that, by way of contrast with the aggravated-arson statute, the statute defining simple arson, a Class 2 felony, required a higher degree of malice or unlawful conduct than aggravated arson, a Class X felony. Section 20-1 defines arson as follows:
A person commits arson when, by means of fire or explosive, he knowingly:
(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or
(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.
Property `of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.
Arson is a Class 2 felony." (Ill. Rev. Stat. 1983, ch. ...