199 P. 276 | Mont. | 1921
prepared the opinion for the court.
Defendant, convicted of the crime of arson, appeals from the judgment and the order denying motion for a new trial.
On March 12, 1919, the defendant entered into a written lease, by the terms of which, on or about April 1, 1919, he went into possession of a two-room structure in the city of Boundup and built two additional rooms to the building, the back one of which was apparently a shed covering an icebox. He used the place as a butcher-shop and dwelling. He insured the stock and household and shop furniture for one year in the sum of $1,000, on April 29, 1919, $250 of which was on meats and provisions, $500 on office and shop fixtures, and $250 on his household goods and personal effects. Some time in the following June he informed the insurance agent that he was going to discontinue selling merchandise during the hot weather, but would open up again. The agent did not cancel the policy, but informed defendant it had no force as far as the meats and provisions were concerned. About the 1st of June, 1919, defendant went to work in a pool-hall; his wife tending the business of selling out his remaining stock. He and his family continued to live on the premises until about August 3, when his family went to the country and the defendant continued to sleep at the house. On the 5th or 6th of August, he sent away from his house several boxes of family belongings and on the evening of August 9 arranged with one Brown to take him in an automobile to the country to visit with his wife and family. At midnight of that day he closed the pool-hall where he had been working, and some time thereafter, together with Brown, drove to his home, arriving there some time around 12:30. With respect to the hour of arrival there is some conflict between prior admissions made by the defendant and his testimony at the trial, but the jury
At about 12.45 A. M., approximately fifteen minutes after defendant had locked and left the building, it was burning in three different places — one fire being in a small closet in the rear of an unused range, another behind a gasoline stove in the same room, and the third in the second room from the front, under and behind a dresser. These fires were unquestionably of incendiary origin, piles of excelsior, sticks, etc., being used, and had been burning about fifteen minutes when the fire chief arrived.
There is some sharp conflict in the record as to the value of the property in the building, but that was for the Jury.
The state in its brief has urged the dismissal of the appeal on various technical grounds, which might have been sustained; but we prefer to treat the case on its merits. For the reasons herein stated, we recommend that the judgment and the order appealed from be affirmed.
For the reasons given in the foregoing opinion, it is ordered that the judgment and order appealed from be affirmed.
Affirmed.
Rehearing denied September 6, 1921.