STATE OF KANSAS, Appellee, v. LESTER L. CROSBY, Appellant.
No. 40,844
Supreme Court of Kansas
April 12, 1958
324 P.2d 197 | 182 Kan. 677
Robert J. Roth, Assistant Attorney General, argued the cause, and John Anderson, Jr., Attorney General, and Thomas H. Taggart, County Attorney, were with him on the briefs for the appellee.
The opinion of the court was delivered by
PRICE, J.: Defendant was charged with and conviсted on two counts of arson, and has appealed.
The first count charged him with burning the property of another. The second count charged him with burning the property with intent to defraud the insurers.
All statutory references, unless otherwise indicated, are to G. S. 1949.
“That any person who willfully sets fire to or burns . . . any dwelling house, . . . such property being the property of anоther person, shall be guilty of arson in the first degree, . . .”
Count one reads:
“That on or about the 13th day of February, 1956, in the County of Sherman and State of Kansas, Lester L. Crosby did then and there unlawfully, willfully and feloniously set fire to and burn a certain dwelling house located at 402 East 12th Street in the City of Goodland, in said county and state, said dwelling house being the property of the Goodland Savings and Loan Assоciation of Goodland, Kansas, by virtue of certain real estate mortgage dated December 1, 1953, and recorded at page 162 Mortgage Record 41, in the office of the Register of Deeds of Sherman County, Kansas, whereby said Lester L. Crosby did mortgage and convey the aforesaid dwelling house to said Goodland Savings and Loan Association, in violаtion of
Section 21-581 of the 1949 General Statutes of Kansas .”
“That any person who willfully and with intent to injure or defraud the insurer sets fire to or burns . . . any building, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felоny . . .”
Count two reads:
“That on or about the 13th day of February, 1956, in the County of Sherman and State of Kansas, Lester L. Crosby did then and there unlawfully, willfully and feloniously, with the intent to injure or defraud the insurers, set fire to and burn a dwelling house and personal property therein, located at 402 East 12th Street, in the City of Goodland, in said county and state, which said property was at the time insured against loss or dаmage by fire by the
Phoenix Insurance Company of Hartford, Connecticut; The Midland Mutual Fire Insurance Company of Newton, Kansas; and The State Farm Fire and Casualty Company of Bloomington, Illinois, in violation of Section 21-584 of the 1949 General Statutes of Kansas .”
With respect to count one, it is not disputed that the dwelling house in question was owned by and was in the possession of defendant. On December 1, 1953, he and his wife еxecuted a note in the amount of $10,000 to the Goodland Savings and Loan Association, due in five years, with annual principal payments of $750, and gave as security therefore a first mortgage on the house. As of the date of the fire no part of the principal amount of the note had been paid and the mortgage was in full force and effect.
With respect to matters contained in count two, it is not disputed that as of the date of the fire, February 13, 1956, the following insurance policies, which covered loss by fire, were in effect:
A $2,000 policy with Phoenix, dated May 7, 1955, for a term of one year, on the contents of the house.
A $12,000 policy with Midland Mutual, dated May 4, 1955, for a term of one year, on the house.
A $12,000 pоlicy with State Farm, dated March 7, 1955, for a term of one year, on the house.
In addition to the foregoing, the evidence, highly summarized, established substantially the following facts:
Defendant and his wife had been married for twenty-six years and for some time had operated a business in Goodland known as “Crosby‘s Corner” which consisted of a soda fountain, lunch counter, cosmetics and so forth. They and their 14-year-old daughter resided in the house in question which had been built in 1951 at a cost of almost $27,000. It was four blocks from their place of business. For about three years it had been listed for sale with a $35,000 price tag. An offer of $30,000 had been received but had not been accepted. Shortly before the fire the mortgagee mentioned in count one had notified defendant that it was expecting him to make payment of the $750 annual principal payments on the note then delinquent, and that if such was not done in the immediate future foreclosure of the mortgage was threatened. Payments of interest on the note were not delinquent. Defendant and his wife were not involved in marital difficulties. Their business was not particularly prosperous, but, other than the fact concerning the note and mortgage on the house, defendant was in no acute
About four o‘clock in the morning of February 13, 1956, neighbors smelled smoke and discovered the fire in the house. The fire department responded immediаtely. All doors and windows were found to be locked. After gaining entrance the firemen discovered an intense fire in the attic and the entire room was a solid blaze. Almost simultaneously two fires were discovered in the basement, one in the ceiling and one in a small closet under the stairway. These fires were separate and distinct. Also, there was no connection between them and the one in the attic. Gasoline odors were detected in the basement and while attempting to extinguish the basement fires the firemen got “flares” or “flash-backs,” which are peculiar to gasoline fires.
The fires were extinguished within an hour. The house was securely locked and police were called to stand guard. The next day a deputy state fire marshal and the fire chief commenced an investigation. No defects were found in the electric wiring or in the gas furnace connections. Samples of wood were taken from places close to where the blazes had been and were found by experts in the field to contain gasoline. The same was true of bedding and other cloth materials removed from a trunk in the basement. A gasoline-powered lawn mower was in the basement. The cap on its gasoline tank had not been removed. Considerable water had poured into the basement in extinguishing the fires. No portion of the attic floor was burned through and there was no fire whatever on the first floor of the housе. Prior to the fire no clothing, keepsakes or other valuables had been removed from the house.
Two days after the fire defendant was questioned by the county attorney in the presence of the sheriff and the deputy state fire marshal. The gist of his statement to the officers was as follows:
On the day and evening before the fire he had been working at his stоre and that night intended to go to Hays, where his wife and daughter were visiting. The evening was chilly, and noticing that he had forgotten his topcoat, he walked from his store to his house to get it about 9:40 P. M. Upon opening the rear door he smelled smoke. He turned on the lights and saw smoke. He got his coat, turned off the lights, and did not use the telephone which was a few feet away. He locked the rear door and started for his
The defendant did not testify in his own behalf.
The trial consumed several days. The verdict of guilty on both counts was approved by the trial court. Defendant‘s motion for a new trial was overruled, and he was sentenced in conformity with the two statutes involved, the sentences to run concurrently.
In seeking a reversal of the judgment, defendant specifies eleven grounds of alleged error. Several of these have to do with count one, and our decision as to the conviction on that count answers the contentions made with respect thereto.
Count one is based on
The state argues that as a mortgagee possesses an “estate” or “interest” in the mortgaged property, therefore the words “property of another pеrson” in the arson statute (
A owns a dwelling house upon which B holds a mortgage. A willfully burns the house. Is A guilty of the offense of burning “the property of another person“—that is to say, is the house the property оf B within the meaning of the statute?
The question is new in this state, and, strangely enough, apparently has not been answered by the courts of other jurisdictions. Counsel for neither side in this appeal has cited any authority touching the precise point and advise us that after diligent search none is to be found. Our own limited independent research also has proved fruitlеss.
Our Crimes Act (Chapter 21 of G. S. 1949), of which the statute involved is a part, gives us a definition of the term “property” to be applied in construing our criminal statutes.
“The term ‘personal property’ as used in this act shall be construed to mean goods, chattels, effects, evidences of right in action, and all written instruments by which any pecuniary obligation, or any right or title tо property, real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or diminished.”
“The terms ‘real property,’ or ‘real estate,’ as used in this act, include every estate, interest, and right in lands, tenements and hereditaments.”
“The term ‘property’ as used in this act includes ‘personal property’ and ‘real property,’ or ‘real estate,’ as defined in the last two sections.”
In The State v. Shaw, 79 Kan. 396, 100 Pac. 78, 131 Am. St. Rep. 298, 21 L. R. A. (NS) 27, it was held that under the laws of this state the legal identity of husband and wife does not prevent a husband who burns his wife‘s house from being guilty of arson.
In State v. Craig, 124 Kan. 340, 259 Pac. 802, 54 A. L. R. 1233, the defendant was prosecuted on a charge of arson for the burning of a barn, being the barn of another person. It wаs owned by his mother, his brother, his sister and himself, as tenants in common, and it was held the fact that defendant himself owned an undivided fractional interest in the barn was of no consequence in considering the question of his guilt.
Neither of those cases, however, is the case before us.
Conceding, for the sake of argument, that in one sense of the word a mortgagee has an “interest” in the mortgaged property (the Bodwell case, supra), we are not here concerned with civil rights and liabilities growing out of the relationship, such as for acts of waste committed by the mortgagor, and the like. Our question is whether mortgaged real property is “the property of another person” (the mortgagee) within the meaning of the statute,
We think the answer is to be found in the principles and rulеs applicable to criminal prosecutions generally, a primary one being that criminal statutes are to be given a strict construction. In State v. Waite, 156 Kan. 143, 131 P. 2d 708, 148 A. L. R. 874, which was a prosecution for operating a gambling device, the court had occasion to discuss the meaning of the word “property” in connection with the statutory definitions contained in
The legislature has enacted at least six arson statutes (
It follows that the motion to quash count one should have been sustained, the giving of instruction No. 13 was erroneous, and it was error not to discharge defendant and to pass sentence on him insofar as that count is concerned.
This conclusion does not necessarily affect the proceedings based upon count two, for a defendant may procure a reversal as to a part of the counts on which he has been convicted although the judgment is affirmed as to the rest, and so it remains to determine whether any of the specifications of error affecting the conviction on count two are well founded. (The State v. Miller, 74 Kan. 667, 670, 87 Pac. 723; The State v. Lumber Co., 83 Kan. 399, 401, 111 Pac. 484.)
With the exception of various arguments based on the contention count one does not allege a public offense, and with which we are in accord, other alleged errors are concerned with the entire trial, but are of minor importance and in our opinion contentions concerning them cannot be sustained. No useful purpose would be served by discussing them in detail. We have read the record carefully. No prejudicial error was committed in rulings on evidenсe, and there was nothing in the evidence with respect to count one that was inadmissible or in any way prejudicial to defendant with respect to the prosecution on count two. The slight “irregularity” in the polling of the jury was of no consequence. The identity of the state‘s exhibits, being articles removed from the house after the fire, was properly established. By express mandate of the statute (
Defendant contends that all of the evidence of the incendiary origin of the fire, and that he was the perpetrator thereоf, was circumstantial, and that the state failed to establish a motive.
One short answer to this argument is that defendant overlooks the fact that a criminal offense may be established by circumstantial evidence as well as by that which is direct, and that, in the very nature of things, arson is very rarely committed in the presence of others. Ordinarily arson is committed alonе and in secret, and the absence of direct evidence is no bar to a conviction of the offense.
Defendant‘s contention that the circumstantial evidence is insufficient to establish his guilt because such evidence might also be deеmed compatible with innocence cannot be sustained. When considering on appeal the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and trial court, and the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (The State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Murphy, 145 Kan. 242, 65 P. 2d 342; State v. Fouts, 169 Kan. 686, 221 P. 2d 841.)
The evidence in this case was clearly sufficient to support the verdict of guilty on count two.
With respect to count one and proceedings thereunder, the judgment is reversed. With respect to count two and proceedings thereunder, the judgment is affirmed.
PARKER, C. J., dissents from paragraphs 2, 3 and 6 (1) of the syllabus and corresponding portions of the opinion.
JACKSON, J., not participating.