 CASE SUMMARY Buchanan, J. — Louis Lynch appeals his conviction of First Degree Arson,1 claiming that the trial court erred in instructing as to “reasonable doubt” and that the evidence was insufficient to support a burning. We affirm. FACTS The evidence most favorable to the State reveals that in the early morning hours of June 18, 1975, a man identified as Lynch was seen throwing a burning object at the residence of Mr. and Mrs. Estel Barnett (Barnett). Immediately after the object struck the house flames engulfed the side of the residence. The flames lasted for several minutes-and then died out. The fire department was not called. *112The Barnetts, who were awakened by a passing neighbor, investigated and discovered a bottle containing flammable liquid with a cotton or cloth wick protruding from the opening. A “burn trail” extended from the lawn approximately ten feet to the house. Damage to the building’s aluminum siding consisted of blistering and discoloration of the paint. The amount of the damage was Ninety-one 29/100 ($91.29) Dollars. No other part of the house was damaged. Lynch was subsequently charged by information with the crime of First Degree Arson.2 At trial, Lynch objected to the court’s Instruction 3P regarding “reasonable doubt”. The objection was overruled and this instruction was given (in pertinent part): A reasonable doubt is not a fanciful doubt. It is a doubt which arises from the evidence, the lack of evidence, or conflict in the evidence. It is a doubt which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society. Lynch objected to the instruction because of its omission of a statement that “a juror must be convinced in those matters of highest importance to him where he has the option to act or not act”. The matter went to the jury and Lynch was convicted. This appeal followed. ISSUES Two issues are presented for our disposition: (1) Did the trial court err in overruling Lynch’s objection to Court’s Instruction 3P? (2) Is the phrase “sets fire to” synonymous with “burn”, so that an actual consumption of a residence by fire is required before the “burning” element of the statute is satisfied? *113PARTIES’ CONTENTIONS-Lynch contends that the trial court’s overruling of his objection to the court’s instruction was reversible error as the instruction given by the court did not contain all the elements of the law of reasonable doubt, particularly as to the degree of certainty required. Lynch further argues that the verdict is not sustained by sufficient evidence of a “burning” of the house as no part of the house was actually consumed by fire. The State responds that there was no error in refusing Lynch’s tendered instruction and overruling his objection to the court’s instruction; if error there was, such error was harmless. The State further argues that the evidence was sufficient to sustain the “burning” element of the crime as there was ample evidence of damage to the Barnett residence. DECISION ISSUE ONE CONCLUSION —The trial court did not err in overruling Lynch’s objection to the court’s instruction on reasonable doubt and in refusing Lynch’s tendered instruction. The trial court’s Instruction 3P, dealing with reasonable doubt, was given to the jury, in part, as follows: A reasonable doubt is not a fanciful doubt. It is a doubt which arises from the evidence, the lack of evidence or conflict in the evidence. It is a doubt which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society. Our Supreme Court in Brown v. State,3 recently considered and approved an identical instruction, holding that the statement that reasonable doubt is a doubt “which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society”, was adequate. See also Lash v. State (1977), 174 Ind. App. 217, 367 N.E.2d 10; Randolph v. State (1977), 266 Ind. 179, 361 N.E.2d 900, 902. *114ISSUE TWO CONCLUSION —The phrase “sets fire to” in the First Degree Arson statute means something less than an actual burning and therefore is not synonymous with the word “burn”. The gist of Lynch’s position is that he is not guilty of arson because “sets fire to” and “burns” as used in the First Degree Arson statute are synonymous, and no “burning” took place, i.e., the house was not consumed. The statute, Ind. Code § 35-16-1-1 [10-301], provides: Arson in the First Degree. —Any person who willfully and maliciously sets fire to or burns, or causes the setting of fire to or the burning or who aids, counsels or procures the setting of fire to or the burning of any dwelling house, rooming house, apartment house or hotel, finished or unfinished, occupied or unoccupied; or any kitchen, shop, barn, stable, garage or other outhouse, or other building that is part or parcel of any dwelling house, rooming house, apartment house or hotel, or belonging to or adjoining thereto, finished or unfinished, occupied or unoccupied, such being the property of another; or being unsured against loss or damage by fire and such setting of fire to or burning, or such causing, aiding, counselling or procuring such setting of fire to or such burning, being with intent to prejudice or fraud the insuror; or such setting of fire to or burning or such causing, aiding, counselling or procuring such setting of fire to or such burning being with intent to defeat, prejudice or fraud the present or prospective property rights of his or her spouse, or co-owner, shall be guilty of arson in the first degree, and, upon conviction thereof, shall be imprisoned in the State Prison not less than five [5] years nor more than twenty [20] years, to which may be added a fine not to exceed two thousand dollars [2,000]. (Emphasis added) Observe that the drafter used the disjunctive word “or” in separating the phrase “sets fire to” from the word “burns.” In the science of semantics, “or” is defined by Webster in its primary sense as a “function word to indicate ... an alternate between different or unlike things .. ." Also see 82 C.J.S. Statutes, § 335, at 673; Sekerez v. Youngstown Sheet and Tube Co. (1975), *115166 Ind. App. 563, 337 N.E.2d 521, 524. Sutherland puts it this way: “When “or” is used, it is presumed to be in the disjunctive sense” unless contrary legislative intent is clearly shown. Sutherland Stat. Construction § 21.14. Heckathorn v. Heckathorn (1938), 284 Mich. 677, 280 N.W. 79. If we construe “or” in its “plain and ordinary and usual sense” as we are bound to do, Ind. Code § 1-1-4-1; State v. Bress (1976), 169 Ind. App. 397, 349 N.E.2d 229; Jenkins v. Stotts (1976), 169 Ind. App. 273, 348 N.E.2d 57, it separates two different things. “Sets fire to” and “burns” are not synonymous in this context. Thus the legislative intent is trumpeted in the first lines of the statute as heralding the assertion of different concepts strung out by a series of “ors” describing alternative (different) acts (“causes”, “who aids”, etc.). Our search discloses no Indiana cases defining the two terms. Other jurisdictions have reached differing conclusions. Traditionally the common law rigidly required an actual burning. The fire must be actually communicated to the object to such an extent as to have taken effect upon it. State v. Schwartz (Del., 1932), 166 A. 666; Crow v. State (1916), 136 Tenn. 333, 189 S.W. 687; Graham v. State (1867), 40 Ala. 659. Other jurisdictions have recognized the distinction between “sets fire to” and “burns” as two different concepts. To “set fire to” a structure is to “place fire upon”, or “against” or to “put fire in connection with” it. It is possible to set fire to a structure which, by reason of the sudden extinction of the fire, will fail to change the characteristics of the structure. Nevertheless, it has been “set fire to”. State v. Dennin (1859), 32 Vt. 158; State v. Hall & Savage (1885), 93 N.C. 571; Borza v. State (1975), 25 Md.App. 391, 335 A.2d 142. In Borza v. State, supra, the distinction was emphasized. Quoting from a Virginia case, Howel v. Commonwealth, 5 Graton 664, this language was used: We are not satisfied that setting fire to and burning have been established by any legal authority to be synonyms ... and *116“that it was not necessary the stack should be burned, the words of the act being ‘set fire to’. This authority seems clearly to decide that setting fire to and burning are not legal synonyms. If they were there would be no reason for that redundancy of language . . .” Unlike Lynch, then, we cannot conclude that he is not guilty of first degree arson because there was no burning of the house. He set fire to the house by causing a flammable substance to burn thereon causing a scorching or blistering of the paint which was an integral part of the structure. The composition of the structure was changed. No more was necessary. Thus the modern construction of statutory terms we are interpreting is that they are not synonymous, each having a separate, independent meaning, thereby eliminating any ambiguity. The judgment is affirmed. Staton, P.J. (by designation) concurs; White, J. dissents with opinion. . Ind. Code § 35-16-1-1. . Supra, n.1. . (1977), 266 Ind. 82, 360 N.E.2d 830. 
Buchanan, White
Lynch v. State
Louis Lynch v. State of Indiana
<parties id="b151-4">
    Louis Lynch
    <em>
     v.
    </em>
    State of Indiana
   </parties><br><docketnumber id="b151-5">
    [No. 2-376A105.
   </docketnumber><decisiondate id="AF5">
    Filed December 13, 1977.
   </decisiondate><otherdate id="AOY">
    Rehearing denied February 2, 1978]
   </otherdate><br><attorneys id="b151-11">
<em>
     Timothy J. Burns,
    </em>
    of Indianapolis, for appellant.
   </attorneys><br><attorneys id="b151-12">
<em>
     Theodore L. Sendak,
    </em>
    Attorney General,
    <em>
     James N. Shumacker,
    </em>
    Deputy Attorney General, for appellee.
   </attorneys>
Indiana Court of Appeals
Indiana Court of Appeals