Pozil and Jaffe v. State

LATTIMORE, Judge. Appellants were convicted in the District Court of El Paso County of arson, and the punishment of each fixed at two years in the penitentiary. The charge of the court on circumstantial evidence was full and fair, as was also the charge on alibi, and rendered unnecessary the giving of special charges 2, 3, 4, 5 and 6, asked by appellants. The test of exclusion was plainly stated in the charge on circumstantial evidence as follows: “The circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion that the property was wilfully set fire to and burned by the defendants. It is not sufficient that the circumstances render probable a wilful burning and that the defendants committed it, but they must exclude every other reasonable hypothesis than that the property was wilfully set fire to and burned by the defendants themselves.” On the subject of alibi the charge contained the following: “The defendants contend that if there was a wilful burning then they were, at the time the property was set fire to and burned, at another and different place from that where the property was set fire to and the burning occurred and therefore were not and could not have been the persons who set fire to and burned the property. And if the evidence raises in your mind a reasonable doubt as to the presence of the defendants, or either of them, at the place where the burning occurred at the time the fire was set to the property, if there, was any wilful burning, you will acquit the defendant or defendants as to whom you have such reasonable doubt.” Very serious complaint is made here of the insufficiency of the testimony. It seems not controverted that the fire was of incendiary origin. Same occurred about 1:30 a. m. on Sunday night, and the alarm brought the fire department to the scene in a few minutes. All the doors of the building were found *246 locked but the firemen broke in the door to a back room where the fire seemed to be principally located and extinguished it in a few minutes. Not a great deal of the stock in the store was damaged. The fire chief of El Paso, who had more than thirty years’ experience as a fireman, testified that within his knowledge oil, gasoline, etc., made a bluish or bluish white, flame different in color from a flame made by burning wood, and that in the corner of the room where the fire was, he observed flames of that character. They would not yield to ordinary application of water. A search of the main store building revealed a number of garments saturated with oil or gasoline and so placed as to be under and near other inflammable articles. No pretense is made but that these articles were not thus placed for the purpose of increasing the rapid progress of the flames if same had been communicated to this part of the store. Appellants reached the scene shortly after the fire department and claimed that the store had evidently been robbed, and called attention to some empty boxes as sustaining their proposition. It was in testimony that shirts and articles such as had apparently been in said empty boxes, were later discovered in grips piled up on a show-case. The theory advanced by the appellants at the time was that the store had been robbed and a fire started by the robbers, apparently for the purpose of concealing their work. It was in testimony that a night-watchman who had been in the employ of appellants, was discharged by them on the 4th of March preceding the fire on the 10th. It was also in testimony that within six weeks preceding said fire appellants had increased their insurance quite heavily, it being shown that on the 24th of January they took out $5,000.00 worth of insurance on stock and fixtures, and on the 29th $5,000.00 more, and then a little later $3,000.00 more, and that in February they took out $10,-000.00 use and occupancy insurance. It was also testified by a representative of one of the insurance companies that appellants represented to him or his company that they had about $38,000.00 worth of stock when they increased this insurance. The witness testified that an inventory made after the fire, including an estimated value of one thousand dollars for stock injured in the fire, disclosed a valuation of about $20,000.00.. For the defense it was shown by several witnesses that on the night of the fire both appellants attended a card party, and that about 10 o’clock they left said party to go out to some point where the daughter of one of the appellants was in a car *247 which she was unable to start. The witnesses at the card party said the appellants returned in about an hour and remained at the card party until it broke up near midnight. The wives of appellants located them at home from then until the alarm of fire came. The son and daughter of appellant Pozil testified to being in their car on said night at about 10 o’clock and that they could not start it and telephoned and that appellants came presently to the place where they were and worked over the car for quite a while. These are substantially the facts. We are not able to say that the jury’s conclusion therefrom evidences passion or prejudice, or that same is so wholly without evidence to support it as to call on this court to revise their conclusion and to reverse the case. The jury are not compelled to accept as true the statements of the witnesses either for the State or the defendant, and especially when said witnesses are interested to an extent that might ordinarily affect their testimony. Both appellants left the card party about midnight. They lived in the town where the fire occurred. Their whereabouts from that time on were accounted for by themselves and their wives. As above stated, the fire was clearly set by some one. The city inspector testified that he had examined the wiring, etc., of said building shortly before the fire and that it was all right. The gasoline saturated garments scattered at places in the building would seem to indicate a purpose of more deliberate and complete destruction than would likely follow any hasty attempt by robbers to conceal their steps. The interest of appellants in the subject matter of the fire, the recent heavy increases of insurance on their part, the discharge recently before the fire of the only man who slept in the building, the unsupported and apparently unreasonable explanation offered by appellants at the time — all these matters together with any other legitimate deductions from the testimony, were for the jury, and we are loath to disturb a verdict finding as much support in the testimony apparently as this one does. We have examined each of the bills of exception. We believe that the witness who made the inventory of the stock of goods after the fire was properly permitted to testify to the amount of values found, and that the chief of the fire department showed himself to have sufficient familiarity with fires caused by burning oil, etc., to testify that the fire he observed burning in the corner of the back room was an oil or gasoline fire. We have carefully examined the bill of exceptions complain *248 ing of the fact that the court explained to the jury the ordinary method by which an indictment was returned, and are of opinion that nothing in it was capable of any injury to the rights of appellants. Appellants were seeking to inquire of the jury if they had entertained a prejudice against parties indicted for the offense of arson, and in connection with the questions along this line the court explained to the jury that ordinarily the defendant’s testimony was not put before the grand jury investigating any matter which might lead up to ail indictment. The fact that a grand juror was permitted to testify that some of the clothing taken from the burned building on Sunday night was brought before the grand jury on the following Tuesday and that it was still damp and smelled of oil or gasoline, would not seem to be objectionable as violative of the rules of secrecy imposed by the statute upon grand jury investigations. The authorities are numerous, holding that if such matters become material in the administration of justice, they may be put before juries by proper testimony. Special charge No. 1 asked by appellants appear to us to not embrace a proper statement of the province of a jury and to be an innovation on the well understood charge on the law of circumstantial evidence. Finding no error in the record, and being unable to agree with any of appellants’ contentions, the. judgment will be affirmed. Affirmed.