Maciejack v. State

GARRARD, Presiding Judge. A jury found Roy Tolson and Emma Jean Maciejack guilty respectively of arson and arson with intent to defraud. They were sentenced to terms of not less than five (5) nor more than twenty (20) years. Their primary claim on appeal is that the verdicts were not sustained by sufficient evidence. We affirm. Although the language employed by the courts is sometimes confusing in criminal cases where the conviction rests on circumstantial evidence, the guiding principal of appellate review is that we may not reweigh the evidence nor overturn an inference drawn by the jury if it was reasonable to draw that inference from the evidence. We will reverse the conviction only where we conclude that no reasonable jury could be convinced beyond a reasonable doubt of the accused’s guilt. See Ruetz v. State (1978), Ind., 373 N.E.2d 152; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874; Boyd v. State (1977), Ind.App., 370 N.E.2d 939. The arson statute, IC 35-16-1-1, provides: “Any person who wilfully 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 insured against loss or damage by fire and such setting of fire to or burning, or such causing, aiding, counseling or procuring such setting of fire to or such burning being with intent to prejudice or defraud the insurer; or such setting of fire to or burning or such causing, aiding, counseling 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 coowner, 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].” The state’s case, especially that portion pointing to the guilt of the defendants, consisted of circumstantial evidence. It is therefore critical to look to the entire web spun by the evidence, rather than its separate threads, for it is upon the basis of the whole that the reasonableness of the inference must be judged. Considering the evidence supporting the verdict, the record discloses the following: Maciejack was the daughter of defendant Tolson. She was employed at the Welcome Inn which was owned and operated by Doris Tolson, daughter-in-law of defendant Tol274 son. For some time Maciejack had lived with George Childers. These two were contract purchasers of the dwelling house that burned. This house was insured against fire loss for $7000; its contents for $3000. Several months before the fire George Childers had moved to California, and shortly before the fire he had made it known that he had decided not to return to Indiana. Shortly before the fire the house was occupied by Maciejack and her two children. A cousin, Zernie Tolson, who was an alcoholic, lived in the basement. The fire occurred about 2:30 a. m. on March 17, 1974. Thereafter, Maciejack told others that all her belongings had burned in the fire; that she had lost everything. She made a fire insurance claim for the loss of her personal property. Subsequent investigation and evidence established that the fire had been set and an accelerant had been used. The state’s evidence established the following additional events. Maciejack’s personal property had not been destroyed in the fire. Instead it had been systematically removed to other locations shortly before the fire. On the evening before the fire Maciejack sent her two children to Gary to visit their father. Also, that evening Doris Tolson caused Zernie Tolson to be arrested for drunkenness, and asked the police to hold him until morning and then let him go. After the fire two gasoline cans were found at the rear of the neighboring lot. These cans were identified as having been purchased by defendant Tolson on Friday, March 15th and filled with gasoline on Saturday, the sixteenth. When initially questioned, Tolson denied any knowledge of the cans. Finally, another employee of the Welcome Inn passed near the home thirty to forty-five minutes before the house was reported on fire. At that time she saw no indication of fire, but she did see Macie-jack’s car parked by the house.1 Other evidence disclosed that Maciejack left the Welcome Inn at a time which would have provided opportunity to start the fire, and that when the firemen arrived no other vehicle was there. When subsequently questioned under oath at a fire marshall’s hearing, Maciejack stated that when she left the Welcome Inn she had gone to a truck stop with her girl friend. This, along with other testimony she gave at that hearing, was disclosed at trial to be false. Considering all of the foregoing, we are unable to say that no reasonable jury could have inferred that these defendants were guilty beyond a reasonable doubt. The evidence was not insufficient. Three other errors are asserted. The first concerns the court’s refusal to suppress evidence obtained from the war-rantless search of the burned out dwelling. The search was, however, conducted by the investigator for the insurance company, who was not a government agent. Accordingly, the illegal fruits doctrine is inapplicable. Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540. Secondly, it is claimed that IC 35 — 7— 1-1, which permitted suspended sentences except in cases of murder, arson, etc., is unconstitutional in prohibiting a suspended sentence to one convicted of arson. The argument has no merit. The penalty set is within the constitutional prerogative of the legislature. There is no right to a suspended sentence. See Farmer v. State (1971), 257 Ind. 511, 275 N.E.2d 783. Accordingly, it is not impermissible for the legislature to preclude operation of the statute for certain offenses. Finally, it is urged that the court unduly prejudiced the defendants through permitting extensive use of leading questions by the prosecutor. Many of such questions were not objected to. Others dealt with preliminary matters and were clearly permissible to expedite the proceedings. In toto, there is no showing sufficient to establish a clear abuse of discretion on the part of the court. See Siblisk v. State (1975), 263 Ind. 651, 336 N.E.2d 650. The convictions are, therefore, affirmed. [275] BUCHANAN, C. J. (sitting by designation) concurs. STATON, J., dissents and files separate opinion. Footnotes [1] At trial the witness testified the car “was like” the car driven by Maciejack and owned by Childers. A police officer testified that at the fire this witness told him she had seen the “owners” car there and a light on in the back of the house.