State v. Witt

*97 Dwell, J. The defendant, William Witt, and Ms son Lawrence F. Witt •were jointly indicted for the crime of arson in the second degree. On a separate trial the defendant was convicted of arson in the tMrd degree and appeals from the order denying his motion for a new trial. There are two questions: (1) Whether the evidence sustains the verdict. (2) • Whether there was error in denying the defendant’s motion for a new trial based upon the ground of newly discovered evidence. The defendant lived with his family in Dodge Center, in Dodge county. His son Lawrence conducted a pool room in the village and in connection with it sold soft drinks ,cigars, candies, and at times lunches. On the morning of the third day of October, 1922, the building was burned by a fire starting inside. For setting the fire the defendant and his son were indicted, and the defendant was convicted at the April, 1923, term of the court. The poolroom business had been failing for some time. The stock was depleted. Shortly before the fire some, not much, of the stock had been shipped away. No stock apparently had been added recently. There had been unavailing efforts, in which the defendant participated, to sell the property, and some talk of closing the business. There was over-insurance. Some was taken out on the stock a few days before the fire. Lawrence purchased the pool room in 1920. To make the purchase he borrowed $1,600 from a bank. The defendant paid the loan in September, 1921, and Lawrence gave him a note. On July 22, 1922, he gave him a mortgage on the pool room fixtures as security. In the evening of October 2, 1922, the defendant purchased four gallons of high grade kerosene at a store near the pool-room which he did not usually patronize. There is evidence that the 5-gallon can was in the pool room shortly before, though the defendant claims he took it from his home. He claims that he took the kerosene to his home in his automobile and put it in the woodshed. *98 After the fire the can was found in the back part of the pool room with a small part of the four gallons left. His explanation is that members of his family told him in the morning of October 2 that they needed some kerosene at the house. Ordinarily the members of the family bought the kerosene at a place just across the street from their home. Low grade oil was used. It was not usual for the defendant himself to get it. He claims that he forgot to buy it in the morning and at night bought it at a place near the pool hall, took it home, and returned to the pool hall. The can ordinarily used was a 3-gallon can. The theory of the state is that the 5-gallon can which was purchased on the evening of the second was never taken to the defendant’s home, or, if taken, was returned. Kerosene was not used in the pool room. There is no satisfactory explanation of the innocent presence of the 5-gallon can. Members of his family who might corroborate the defendant were not called. Lawrence, though about the streets as late as one in the morning, did not testify. All concerned in the commission of a crime are principals. G. S. 1913, § 8477. To sustain the defendant’s conviction, proof that he set the fire is not essential. It .is enough that he counseled or planned or abetted or participated in its setting. It was not necessary that he be about when it was set. The fire started suddenly. The glass front of the pool room was blown out. The building was a mass of flames inside from end to end. Everything was scorched. The back door was unlocked when the volunteer fire department came. There is no evidence of the odor of kerosene about the place. There is a suggestion that the fire may have been occasioned by defective electric wiring. There is evidence that the wiring was old and not good. This was a circumstance. The defendant kept a few cows and sold milk in the village. He owned a 200-acre farm a few miles out. It may be inferred that he was a man of some property. When not engaged in his milk business he stayed at the pool room and helped or himself conducted the business. He was 54 years old. There was evidence in support of his good character and none opposed to it. He was *99 under no pressing need. It is well enough argued that such a man under such circumstances would not participate in the commission of such a crime. It is well enough argued that he would not buy-kerosene openly as he did and participate in using it in burning the property with so great a chance of detection. Each argument was for the jury. Like arguments could have been made in State v. O’Hagan, 124 Minn. 58, 144 N. W. 410. The evidence is meager. It may be that all the pertinent facts' have not been disclosed. Quite likely the whole story has not been told. The case was tried entirely fairly to the defendant. The charge of the court covered the questions at issue. It was not unfavorable to the defendant. It is not claimed- that there was error, or that the defendant was not accorded fair treatment. The memorandum attached to the order denying a new trial expresses the trial court’s approval of the'verdict. It could have granted a new trial, as a matter of discretion, and should have done so if it thought that in the interests of justice another jury should review the evidence. The members of the court feel that if they were trying the case, with the record as it comes to them in print, they would, with nothing else to aid or guide, in the exercise of their discretion, grant a new trial. This does not mean that 'the trial judge was in error. He had more than the printed record brings to us. He saw the witnesses and participated in the conduct of the trial and is in a far better situation than this court to determine the justice of the result. When the jury returned a verdict of guilty the responsibility was upon the trial judge, and we do not criticize the conclusion he reached. The evidence sustains a finding of the corpus delicti and of the defendant’s connection with the commission of the crime. One ground of the motion for a new trial is newly discovered evidence. It is proposed to offer an additional witness upon the question of value. There was no diligence and the character of the evidence proposed is not such as to require a new trial. Another claim of newly discovered evidence is based on the affidavits of the 12 jurors who tried and acquitted Lawrence F. Witt at *100 the October, 1923, term, and of 16 others on the jury panel who were spectators at the trial and heard the evidence, each to the effect “that from the evidence offered and received at said trial affiant was of the opinion that there was serious doubt as to whether the fire was of incendiary origin and that there was grave probability that it might have accidentally started from defective electric wiring.” Another affidavit states that Lawrence was acquitted on the first ballot. If a new trial were granted no one of these 28 affiants could testify to the fact to which he deposes in Ms affidavit, nor could the affiant who deposes to an acquittal on the first ballot testify to the fact. The only effect of the affidavits is to get before the court the fact that Lawrence, jointly indicted with his father whose conviction is for review, was subsequently acquitted on the first ballot; and the fact that 12 jurors and 16 spectators have grave doubt of the sufficient proof of the corpus delicti — facts which should not influence the trial court nor this court in determining the sufficiency of the evidence. See State v. Schomaker, 149 Minn. 141, 182 N. W. 957. Order affirmed.