Bollinger v. StateBollinger v. State
- Reporters:
- ,
- Before:
- Collins
delivered the opinion of the Court.
Here are appeals by Charles Henry Bollinger and Paul Edward Creager from judgments and sentences for arson.
The appellants, both aged nineteen years, lived on a farm in Frederick County adjoining that of Roy F. Valentine. On November 29, 1954, a fire destroyed a straw barn on the Valentine farm and on December 16, 1954, another fire destroyed the bank barn on that farm. Mr. Valentine and wife resided on the premises.
On the evening of December 16, 1954, Mr. and Mrs. Valentine, neither of whom smoke, were in their bank barn until about 6:30 P.M. The wiring in this barn had been installed by an electrician not long before and Mr. Valentine testified that “It was okay.” Mr. Ralph Keilholtz, a neighbor, happened to look toward the Valentine bank barn at about 7:50 P.M. and saw a small fire “up along the barn.” He further said: “At the same time I hollered back to my wife who in the meantime had gone back into the house. When I looked again it looked like no more than a small light or something with a dim light up along there, and I didn’t think it any more necessary, and I left my home.” Between 8:10 and 8:15 P.M. Mrs. Keilholtz testified that she looked out of her window and “saw what I thought seemed to be a ball of fire, and it must have been at the upper part of the barn. * * * I couldn’t see the barn on fire. It looked like a fire on the second story of the barn.” Between 8:35 and 8:40 P.M. Mr. Valentine first noticed the condition of the barn and said that it was “just about ready to explode.”
The State proved that the appellants, in an automobile, came to a neighboring store, conducted by Mr. Robert R. Saylor, located about one mile across the fields and two miles by road from the scene of the fire, between 8:15 and 8:30 P.M. on December 16, 1954. Mr. Saylor’s store was frequented by the appellants and other young men of the vicinity.
At 1:30 P.M. on December 29th Bollinger made a written statement to three Maryland State Police concerning the burning of the bank barn on December 16th. No objection was made by the appellants to the introduction of this statement on the ground that it was not voluntary. Bollinger said he farmed on his father’s farm, which adjoins that of Mr. Valentine. He said he set fire to the barn by using “a pint of gas under the barn door and set a match to it.” Paul Creager was present with him. Bollinger threw the gasoline and Creager lit the match. This was the plan of both of them, but Bollinger claimed that Creager talked him into it. They just set fire to the barn and left. The barn contained a few pieces of machinery. Bollinger said he did this because Mr. Valentine was not friendly toward him and stayed to himself. He further stated that his father thought Mr. Valentine had accused his father of making liquor and stealing chickens. He said: “My dad wasn’t man enough to do something about it, but I was.” His father and mother were in Arkansas at the time of the December 16th fire. His grandfather and Mrs. Valentine’s grandfather were brothers. He said the Valentines did not speak to his family because of jealousy. He also confessed to burning the straw barn on November 29th with Paul Creager when they lit a match in the straw. He said he would replace the barns.
At 3:15 P.M. on December 29th Creager also made a statement to the Maryland State Police. No objection was made that this statement was not voluntarily made. He said he was working on the Bollinger farm at the time and that on December 16th he and Bollinger set
Trooper Brown, of the Maryland State Police, testified that he met Bollinger at the home of Reverend Bower after the December 16th fire, together with Trooper Tucker. They were told by Reverend Bower and by Bollinger that Bollinger did not set the fire. After these statements were made the telephone rang. Reverend Bower answered and talked to someone. A short time later Bollinger talked on the telephone to someone. Bollinger came back and said: “I did it.” Trooper Brown’s statement was corroborated by Trooper Tucker.
Appellants contend that the court erred in admitting the confessions before the State had overcome the legal presumption that the fire was not a criminal fire and before the state had proved the
corpus delicti
which they claim the State had never been able to prove. This Court held in
Weller v. State,
150 Md. 278, 132 A. 624, which involved a prosecution for the manufacture of whiskey, that evidence of an extra-judicial confession by the traverser is not admissible “unless there then exists, or there is a proffer of proof later” of the
corpus delicti.
In
Harris v. State,
182 Md. 27, 31 A. 2d 609, a conspiracy case, it was held that the order in which the evidence should be produced is largely a matter within the discretion of the trial court. See cases there cited. See
Appellants further argue that without proof of the corpus delicti the confessions were not admissible. It is stated in Wharton’s Criminal Law, 12th Ed., Vol. II, Section 1063, as follows: “The burden is on the state to show that the burning was with a criminal design,— this is the corpus delicti. The corpus delicti cannot be established by proof of the burning alone, or by the naked confession of the accused. Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the state must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.” Apparently there is no difference in this rule as’ applied to arson than in other criminal cases. It is said in 6 C.J.S., “Arson,” Section 29, page 749: “In a prosecution for arson as in other criminal cases, it is incumbent on the State to prove the corpus delicti, and it is now recognized as the universal rule in the law of arson that in order to establish the corpus delicti, it is not only necessary that the State prove the burning of the building in question, but the evidence must also disclose that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes.” (Italics supplied here). Williams v. State, 90 Ind. App. 667, 169 N. E. 698; State v. Cristani, 192 Iowa 615, 185 N. W. 111; Stine v. Commonwealth, 162 Va. 856, 174 S. E. 758.
There is ho question that in this State an extra-judicial confession of guilt by a person accused of crime un
The case at bar was tried before the trial judges without a jury. When so tried, this Court may review upon both the law and the evidence to determine whether the evidence is sufficient to sustain the conviction but the verdict of the trial court shall not be set aside on the evidence unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses. Rule 7 (c) of the Criminal Rules of Practice and Procedure; Berry v. State, 202 Md. 62, 95 A. 2d 319; Cooper v. State, 205 Md. 162, 166, 106 A. 2d 129.
It was said by this Court in
Wood v. State,
192 Md. 643, 650, 65 A. 2d 316, and in
Davis v. State,
202 Md. 463, 470, 97 A. 2d 303: “The character of the evidence to prove the
corpus delicti,
and its sufficiency for that purpose, depend largely upon the circumstances of each particular case. It may be stated as a general proposition that it is essential in all criminal prosecutions to prove the element that constitutes the crime. * * * However, the
corpus delicti
may be proved by circumstantial evidence when direct evidence is not available.
Jones v. State,
188 Md. 263, 52 A. 2d 484. It is also not necessary that the evidence independent of the confession must be full and positive.
Forte v. United States;
68 App. D. C. 111, 94 F. 2d 236, 127 A. L. R. 1120. In
Of course, proof of the corpus delicti in an arson case is usually a difficult matter, as the burning is almost invariably done in a most secretive manner. The prosecution usually has to depend on circumstantial evidence. State v. Edwards, 173 S. C. 161, 175 S. E. 277, 278. It was said in Ercoli v. United States, 131 F. 2d 354: “It is sufficient if there is substantial evidence of the corpus delicti, independent of the confession and the two together are convincing beyond a reasonable doubt.” For other cases holding that evidence of the corpus delicti and the confession may be considered together in determining the guilt of the accused see Jones v. State, supra; Wood v. State, supra; Davis v. State, supra; State v. Traufer, 109 Mont. 275, 97 P. 2d 336; Ryan v. United States, 99 F. 2d 864; Arthur v. State, 19 Ala. App. 311, 97 So. 158.
Appellants contend that the evidence submitted to establish the
corpus delicti
was not sufficient and was not compatible with the confession. Evidence outside of the ‘confession showing that the burning was with a criminal design is that the Valentines left the building approximately one hour and twenty minutes before Mr. Keilholtz saw the small fire along the barn and about two hours before Mr. Valentine saw the fire. Neither
We are of opinion that there was sufficient evidence of the corpus delicti to make the confessions admissible, and we cannot say that the trial judges, on the basis of that evidence considered in connection with the confessions, which were not claimed to have been made involuntarily, were clearly erroneous in finding the appellants guilty. The judgments will be affirmed.
Judgments affirmed, with costs.