State v. Director

McCOURT, J. This is a criminal action. Defendant, by the indictment, was charged with the crime of arson, committed as follows: “The said defendant on the 24th of July, A. D. 1921, in the County of Clackamas and State of Oregon, then and there being, did then and there willfully, maliciously, unlawfully and feloniously set fire to a store building owned by Jacob Peters at Wilson-ville, Oregon, by the burning whereof, the dwelling house of A. D. Aden was burned in the night time; said store building having been so set fire in the night time by defendant contrary to the statute, etc.” A trial resulted in a verdict of guilty and judgment of conviction. Defendant appeals. At the close of the evidence introduced by the state in its case in chief, defendant interposed a motion to dismiss the action and discharge the defendant, and advanced as grounds for his motion: First, a fatal variance between the allegation in the indictment and the testimony adduced by the state as to the ownership of the dwelling, alleged in the indictment to have been burned by the defendant; and second, insufficiency of the evidence to justify the case going to the jury. Defendant assigns as — 78 — error the action of the court in overruling the above mentioned motion. The indictment described A. D. Aden as the owner of the dwelling that was destroyed by the fire mentioned therein, while the proof showed that the dwelling referred to was owned by H. D. Aden, who, with his wife and two children, resided therein at the time of the fire. Defendant contends that - the discrepancy between the allegation and proof respecting the first initial of the name of the owner constituted a material variance. The indictment against the defendant charges an offense defined by Section 1931, Oregon Laws. That section reads as follows: ‘ ‘ § 1931. Arson by Burning Dwelling in Night-time. If any person shall willfully and maliciously burn in the night-time any dwelling house of another, or shall in the night-time willfully and maliciously set fire to any building owned by himself or another, by the burning whereof any dwelling house of another shall be burned in the night-time, such person shall be deemed guilty of arson, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than ten nor more than twenty years.” The statute describes two offenses. The first arises where any person willfully and maliciously burns in the night-time the dwelling-house of another. The second is committed'where any person willfully or maliciously sets fire to any building owned by himself or another, by the burning whereof any dwelling-house of another is burned in the night-time. In the one offense the criminal act involved is setting fire to the dwelling-house that is burned, and in the other, .the criminal act consists of setting fire to a building owned by the accused or another. In either case, before the prohibited act constitutes the crime of — 79 — arson, a dwelling-house of another must he burned as a consequence of the particular act. Defendant is accused of the commission of an act constituting the second offense above mentioned. The allegation of ownership in an indictment charging arson is part of the description of the offense (State v. Moyer, 76 Or. 396, 149 Pac. 84), and is essential in order to show that' the property burned did not belong to defendant: Bishop’s New Criminal Procedure, vol. 2, §36; State v. Chapin, 74 Or. 346, 352 (144 Pac. 1187); People v. Handley, 100 Cal. 371 (34 Pac. 853). It need not be proved with the same degree of fullness required in actions involving title or right of possession to real property: 5 C. J. 582; State v. Watson, 47 Or. 543 (85 Pac. 336). But generally such an averment must be proved as laid. However, a variance between the allegation of ownership and the proof thereof, arising out of an erroneous allegation as to the person injured, may be made immaterial by statute, where the crime is described with sufficient certainty in other respects to identify the act’ charged to have been committed: 25 Cyc. 89, and cases cited in note 92; State v. Adler, 71 Or. 73 (142 Pac. 344); State v. Chapin, 74 Or. 351, 352 (144 Pac. 1187); People v. Mills B. Sing, 42 Cal. App. 385 (183 Pac. 865, 869); People v. Hughes, 29 Cal. 257. Section 1444, Or. L., reads as follows: “When a crime involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material.” Arson is a crime involving the commission of a private injury. The indictment identifies the act — 80 — that defendant is accused of committing by the following description: “The said defendant on the 24th day of July, A. D. 1921, in the County of Clackamas and State of Oregon, then and there being, .did then and there willfully, maliciously, unlawfully and feloniously set fire to a .store building owned by Jacob Peters at Wilson-ville, Oregon, * * said store building having been so set fire in the night time by defendant.” The foregoing description of the act charged to have been committed by the defendant identifies that act with all the particularity required in criminal pleadings. The indictment supplemented the description of the overt act set forth therein by the charge that in consequence thereof the dwelling-house of A. D. Aden was burned in the night-time. The authorities above cited declare that the office of this latter averment is to show that the property burned did not belong to defendant. Manifestly, the indictment contains all the ingredients of the crime, and the overt act involved therein is specifically and completely identified, irrespective of the name of the owner of the dwelling-house that was burned by the fire which originated in the store building. In this situation, Section 1444 of Oregon Laws declares that an erroneous allegation as to the person injured is not material. It was conceded at the trial that as a consequence of the burning of the store building of Jacob Peters, the dwelling in question was burned in the night-time and the proof established beyond any question that the dwelling so burned did not belong to defendant. The latter was not misled in any way by the error appearing in the indictment in respect to the first initial of the owner’s name. As said by the court in State v. Chapin, supra: — 81 — “ * * there can be no question but that the crime is described with sufficient certainty to identify the act charged to have been committed, and the conviction would be a complete bar to another prosecution for the offense. There was no fatal variance.” Shortly after 10 p. m. on the night of July 24, 1921, fire was discovered inside of a one-story frame store building occupied by defendant, and in which he conducted a merchandise business at "Wilsonville, Oregon. The building mentioned was 85 feet wide and 100 feet in length, and the front thereof was equipped with plate-glass windows. The building was owned by Jacob Peters, who for several years prior to June 20, 1920, conducted a hardware store therein. On the date last mentioned, Peters sold what then remained of his hardware stock and also a quantity of paints and oils to defendant, for the consideration of $7,500, and thereafter until the time of the fire, defendant occupied the building as a tenant, and carried on therein the business mentioned. Defendant added to the stock of hardware, implements, paints and oils, which he purchased from Peters, a quantity of workingmen’s clothing, consisting of overalls, gloves, socks, slickers, mackinaws, rubbers and the like, also some furniture and a small stock of groceries, the unsold portion of which was in the building at the time of the fire. A large part of the goods embraced in the stock of merchandise owned by defendant was kept in drawers and upon shelves attached to the walls of the front part of the building. Lighter articles, such as clothing, were placed upon the counters and in showcases; while the heavier articles, such as stoves and furniture, were placed upon the floor. The oils which defendant had in stock, including kerosene, were — 82 — stored in an oil-room, 20 by 38 or 40 feet, which had been provided for that purpose in the northeast corner at the rear end of the store building. In that room there was a 100-gallon kerosene tank, in which there was, immediately prior to the fire, 50 or 60 gallons of kerosene. The state’s witnesses estimated the value of defendant’s stock of merchandise, at the time of the fire, at approximately $7,500, two thirds or more of which represented hardware and implements. He carried fire insurance upon that stock to the amount of $10,000. He was indebted to most of the wholesale houses from whom he had made purchases during the previous year, and had dishonored their claims for several months, upon the plea, in each instance, that he was unable to meet their demands. Defendant resided with his family in Portland but had a bed in his store at Wilsonville, where he slept nights when he did not go home. On the night of the fire, and at the time the same was discovered, defendant was in the store. The kerosene lamp which defendant used for illumination had been extinguished for some time. There had not been any fire in the heating stove or elsewhere during the day or evening, from which fire might have been communicated to the building or the goods therein. When the fire was first discovered, there appeared to be a small blaze in the center of the store about 30 feet from the front, but in less than five minutes, the fire had spread over the entire interior of the building, and the stock of merchandise kept therein, including the hardware, and caused the plate-glass windows in the front of the store to break and blow out. The flames emerging from the windows gave off a strong odor of coal-oil. In a very short time the fire came through the roof and wall upon the — 83 — north side of the building, and was communicated to the dwelling-house of H. D. Aden, located a short distance to the north, and wholly destroyed the same. About the time the flames caused the front windows to explode and break, defendant came from the rear of the burning building, partly clad and shouted, “Fire!” At that time defendant stated that he was awakened by the smoke hurting his eyes; that he got up and looked and saw the fire in the oil-room, and that he grabbed his clothing and rushed out the front door. The front portion of the building was consumed first, and the fire appeared to be more intense and to spread more rapidly there than in the rear portion thereof. It spread over hardware and like merchandise with the same rapidity as over clothing and other inflammable articles. After the fire, the kerosene tank in the oil-room was found to be intact, but empty. It had not exploded, nor had its ■seams separated. Fred W. Roberts, a captain in the Portland Fire Department, was called as a witness for the state, and testified as an expert concerning the effect of fire upon a kerosene tank of 100 gallons’ capacity, half filled with kerosene, and the action and spread of fire in and upon a stock of merchandise such as that owned by defendant, under the conditions and circumstances shown by the state’s evidence. Captain Roberts testified, in substance, that he had been a member of the Portland Fire Department for 23 years, and had acted in the capacity of an investigator of fire causes for almost seven years; that he attended about four fires a day; that all grocery stores and places of that kind have a tank of kerosene; that in the discharge of his duties, he had investigated in the neighborhood of 100 such places in which fires had occurred; that where a kerosene tank, partly — 84 — filled with kerosene, was upon a shelf or upon a solid foundation in a building that was completely destroyed by fire, ordinarily the seams of the tank would open and the oil would run out and burn; that quite often they extinguished fires in a building and find intact a partly filled tank of kerosene; that such a tank located in an inclosed room 50 feet from the fire would not affect the fire in any way; that ordinarily a fire would not in four minutes spread a distance of 30 feet in a store and over a stock of merchandise such as defendant had, and cause plate-glass windows to break; that the fire would be spreading very fast, if it spread that far in that time; that it could happen with any string of inflammable goods like “a bunch of celluloid or hangers—festoons”; that any row or line of inflammable oil or something of that nature would carry a fire like that, but without such inflammable material or oil, witness thought that a fire would not travel that fast. Defendant contends that the evidence of the state above summarized fails to constitute any proof that the fire was caused by the willful act of some person criminally responsible, and also fails to connect defendant in any manner with the fire. Both the criminal agency in the origin of the fire and the identification of the accused as the one who committed the crime charged may be established by circumstantial evidence: First Nat. Bank. v. Fire Assn., 33 Or. 172 (50 Pac. 568, 53 Pac. 8); State v. Rogoway, 45 Or. 601 (78 Pac. 987, 81 Pac. 234, 12 Ann. Cas. 431); 5 C. J. 572. We are clearly of the opinion that the evidence introduced by the state was sufficient to require the .defendant to enter upon his defense and to introduce evidence. It was then the province of- the jury' to .weigh the evidence and to pass upon the credibility — 85 — of the witnesses. A direction to acquit in such a case would be an invasion of the province of the jury: State v. Pomeroy, 30 Or. 16, 24 (46 Pac. 797); State v. Couper, 32 Or. 212, 216 (49 Pac. 959); State v. Williams, 102 Or. 305, 307 (202 Pac. 428); State v. Zullig, 97 Or. 427, 439 (190 Pac. 580). The next error assigned by defendant relates to an unsigned written statement which was introduced in evidence in connection with the testimony of D. L. Seeley, a witness for the state. Defendant objected to the introduction of the writing in evidence, upon the sole ground that it was not signed by defendant. D. L. Seeley was cashier of the bank at Wilsonville. Defendant applied to him for a loan, and to induce Mr. Seeley to make the loan, presented to him the written statement in question, which purported to show defendant’s assets and liabilities. Under those circumstances, the absence of defendant’s signature did not render the writing inadmissible as evidence, if it was otherwise relevant or material: Pacific Export Co. v. North Pac. Lbr. Co., 46 Or. 194, 205 (80 Pac. 105); 22 C. J. 305. At the trial defendant objected to the hypothetical questions propounded by the District Attorney to Captain Roberts, the substance of which testimony is above recited. The ground of defendant’s objection in each instance was that the question did not contain all the material incidents or elements established by the evidence and necessary to be taken into consideration in forming an accurate opinion. Defendant also objected that the witness had not shown himself to be qualified as an expert. The questions suggested by the foregoing objections are not urged upon this appeal. Here, defendant for the first time complains that the witness was allowed to testify upon matters which are not the — 86 — subject of expert or opinion evidence, thus presenting a widely different question from that raised by him in the trial court. The question is not here for review, as the trial court was not requested to pass thereon. However, that precise question was settled by this court against the contention of defendant in the case of First Nat. Bank v. Fire Assn., 33 Or. 172, 183 et seq. (50 Pac. 568, 53 Pac. 8). The condition and circumstances respecting the origin and progress of the fire in that case were strikingly similar to the corresponding facts in the instant case. The court, speaking through Mr. Justice Wolverton, said: “All the elements would seem to concur in making the opinions of the witnesses above named, skilled as they were considered to be by the court below, competent to express an opinion touching the question whether the fire was burning naturally and alone upon the combustibles known to have been contained in the store. The jurors cannot be presumed to have known as much touching the characteristics of fires as those who have had much experience and training in extinguishing them, and who have had occasion to observe many of them, with a knowledge of the substance which gives them action. It was not a question of whether the fire was of an incendiary origin, respecting which the opinions of the witnesses were called, for that was the ultimate question, but whether the fire was burning naturally upon the known substance it had to feed upon, and we think such opinion evidence was competent.” At the request of counsel for defendant, the trial court instructed the jury to disregard the evidence referred to in defendant’s fourth assignment of error. The direction to the jury was made promptly when and as requested, consequently the assignment presents no question for review by this court. — 87 — For appellant there was a brief over the names of Mr. Gilbert L. Hedges and Mr. Joseph E. Hedges, with an oral argument by Mr. Gilbert L. Hedges. For respondent there was a brief and oral argument by Mr. L. Stipp, District Attorney. Finally, the defendant, by an exception to an instruction given to the jury by the trial court, again raised the question of a variance which was discussed earlier in this opinion and decided against defendant’s contention. No prejudicial error appearing in the record, the judgment of the Circuit Court is affirmed. Affirmed. McBride, C. J., and Bean, J., dissent. Reversed and remanded on Tehearing December 23, 1924.