12 Ohio Law. Abs. 276 | Ohio Ct. App. | 1932
It is not necessary in our view of the record to refer in detail to more than one.of the contentions of the defendant in this proceeding. It appears from the bill of exceptions that the trial court in its'general charge to the jury said that the defendant if the evidence justified, might be found guilty as an aider and abettor. This instruction was repeatedly made to the jury in the general charge.
It is apparent, we think, from the evidence in the record that if the fire was incendiary the defendant alone promoted it. There is not a scintilla of evidence to connect any other person or persons with the transaction. The facts in evidence tended to establish that the fire was caused by an explosion of gas or vapor from exposed gasoline. The evi&ence tended to show that the agency which caused this explosion was a lighted toaster which was found on one of the steps of the stairway leading from the ground floor of the building to the basement underneath. There was also some evidence tending to show that an electric bulb was concealed in a hole in the basement which apparently had been attached to a live electric wire. Both the toaster and the bulb were found in the basement after the fire was- extinguished. There was evidence given in explanation of how and in what manner burning electric lights or fire from such instruments would produce sufficient heat to explode the gas or vapor coming from exposed gasoline, and there was ample evidence establishing the fact of the exposure of gasoline.
The defendant testified that he securely closed the building and his storeroom and basement about 6:30 o’clock P. M. on the day of the fire, and the explosion was shown to have occurred about three hours later. There is nothing in the record in the way of any direct evidence or even circumstantial evidence which indicates that any person other than the defendant had access to the building on that evening after the defendant left the same or could have had access by reason of the secure manner in which the building was locked and closed.
We conclude that the instructions of the court on this branch of the case were not justified or warranted under any facts in evidence and that the effect of such charges was to confuse the jury to the prejudice of the defendant and tended to permit them to resort to mere conjecture as to what might have occurred, in bringing about the explosion and the firing of the building. Donald v State, 21 C. C. 139.
The other matters complained of in this proceeding are without any merit, but for the giving of the instructions referred to the judgment must be and is reversed.