162 Va. 856 | Va. | 1934
delivered the opinion of the court.
George O. Stine was indicted at the March term of the Circuit Court of Louisa county, 1933, for burning a certain building in the town of Mineral, known as the Bum-pass Hotel, “with intent to injure the insurers.” At the same term of the court, Stine was placed on trial for the offense charged in the instrument, was found guilty by the jury, and his punishment fixed at two years in the penitentiary. On motion of the accused, the trial court, for reasons which do not appear, set aside the verdict and granted a new trial. The new trial commenced on May 31, 1933, which also resulted in a verdict of guilty,
Several assignments of error are made in the petition, but in the view we take of the case it is only necessary to consider the assignment that the evidence is insufficient to support the verdict, which question was properly raised in the court below by motion to strike, and by motion to set aside the verdict on the ground that the same is contrary to the law and the evidence. The building referred to, together with its contents, was completely destroyed by fire in the early morning of November 20, 1932. The main building was a long frame structure, two stories in height, fronting or facing toward the railroad, on which front a two-story porch extended its entire length. To the rear, or easterly side of the building from this front, were two low one-story annexes used as kitchens, attached at right angles to the main structure, the longer of which was directly back of the main entrance and lobby. This annex extended back thirty-six feet and contained two rooms separated by a partition twelve feet from the wall of the main building. It had a metal roof which on the inside was unceiled and open. In the room of this kitchen next to the main building there was a small chimney or flue, and an oil and an iron cook stove.
At the time of the fire the building was unoccupied, and it is impossible from the testimony to determine with any degree of accuracy the time the fire started. It seems to have been first discovered about 3:30 A. M. by the Taylor family, who gave the alarm, but none of whom testified. It undoubtedly appears, however, that the first persons to reach the scene of the fire were W. H. Noel and James H. Kennedy, both of whom are reputable and disinterested witnesses. Mr. Noel, who testified in behalf of the Commonwealth, claims that he got there first, hut only “two or three minutes” ahead of Mr. Kennedy, a witness for the accused, who says that he was the first to arrive at the fire, and Mr. Noel next. The Commonwealth relies
It was shown that there was no electric current in the building at the time of the fire, but it also appears that it had been reported to the town authorities that the place was being frequented by poker players and bootleggers, and for that reason the town sergeant visited the premises after midnight on the night of the fire.
“ ‘Where a building is burned, the presumption is that the fire was caused by an accident, rather than by the act of the accused, accompanied by a deliberate intent.’ 3 Cyc. 1003.
“It is true as counsel contend, and unfortunately so, ‘that in the nature of things it is generally extremely difficult to prove by direct testimony that an incendiary who sets fire to his neighbor’s property actually started the conflagration,’ and this kind of proof is not required to convict of the crime of arson; but the coincidence of circumstances relied on to convict, however strong and numerous, must conclusively prove, (1) the fact that the crime has been perpetrated, and (2) that the accused is the guilty party.”
In Brownw. Com., 89 Va. 379, 16 S. E. 250, 251, the court quoted Bishop’s Crim. Proc. sections 1058-59, as follows:
“ ‘On the whole, the doctrine may be said to be that special care should be exercised as to the corpus delicti, and there should be no conviction except where this part of the case is proved with particular clearness and certainty.’ ”
We now come to consider the circumstances relied on by the Commonwealth to prove that the accused actually perpetrated the crime charged against him.
It was proved by clerk of the court, Mr. P. B. Porter, that on September 19, 1929, the Bumpass Hotel was conveyed by the People’s National Bank of Charlottesville to B. S. Kretzer, and on the same day, said Kretzer conveyed the property to J. G. Ballard, trustee, to secure “the holder” payment of the sum of $2,000 evidenced by certain notes. That subsequently Kretzer conveyed said property, subject to aforesaid deed of trust, to L. S. Mennonni, who, on August 11, 1930, deeded it back to Kretzer on the same terms. That by deed dated November 10, 1932, in consideration of $10.00 and other valuable consideration, B. S. Kretzer conveyed the hotel to L. J. Kidd, and on the
On November 14, 1932, four days after the deeds referred to were executed, Kidd accompanied by McDaniel and Garrett went to the office of W. H. Sanders, fire insurance agent, and obtained insurance on the hotel building amounting to $5,000, and insurance on the furniture for $1,100. According to the testimony of Mr. Sanders,
The estimates of value placed upon the property were given the insurance agent by Garrett, who had examined and appraised the hotel and furniture for Kidd before the sale was consummated, and Kidd gave a note for the premium. The insurance agent gave the policies to Kidd, who turned them over to McDaniel; and McDaniel took them across the street and gave them to the accused along with the deeds of trust, and the notes above referred to. The Commonwealth introduced several witnesses who expressed the opinion that owing to the depressed conditions then existing, the market value of the hotel at the time it was sold to Kidd was $2,500 or $3,000, and that the furniture, if sold to the highest bidder, would have brought from $75 to $150 only. On the other hand, the Commonwealth’s witness, McDaniel, testified that the hotel could not have been put up for the amount of insurance that was on it; and it was testified by Garrett, who, in company with McDaniel, made a careful examination of the property, that he valued the building at $7,000, and the furniture at $1,500. It also appears that the building, especially the older part, was of excellent material and well constructed, and that it had recently been painted and put in good order and condition throughout.
The Commonwealth contends that the foregoing evidence shows the property was over-insured, and that
At the time of the sale of the Bumpass Hotel to Kidd, A. H. Compton, town sergeant of Mineral, was occupying the building, with the consent of the accused, as caretaker. After the hotel was sold, accused arranged for Compton to move to the “Coleman building,” which seems also to have been either owned or controlled by the accused. Compton moved on Thursday, November 17. On the same day accused took Kretzer, McDaniel and three colored men to Mineral and moved some furniture into and out of the hotel. Going up from Richmond, McDaniel and the accused traveled in the latter’s car; Kretzer and the negro helpers rode in a truck belonging to the accused. The Commonwealth lays much stress on this circumstance as tending to show that the accused acted on this occasion as though he still owned the furniture. In the voluminous testimony on the subject the only definite evidence is that of the Comonwealth’s chief witness, McDaniel, the substance of which is that the accused transferred to the hotel two truck loads of furniture and a piano which he had stored in the “Coleman building,” and took five or six pieces of furniture out of the hotel and stored it in the “Safely Place,” another building in Mineral owned or controlled by the accused. All this was done openly, in broad daylight, in view of the citizens of the town, and without any apparent attempt at secrecy. Compton testified that after all the moving was over that evening, he himself extinguished the lights, and locked up the hotel, and kept the key; that McDaniel asked him
McDaniel further testified that the day they went to Mineral to move the furniture, the truck carried among several other articles, two five gallon cans with flat tops, which were placed in the “Safely building,” but he did not examine the cans and did not know what they contained. Several days after the fire a can was found in the “Safely Place” which a witness testified contained a liquid that would burn and had the odor of kerosene, and was supposed to be kerosene oil. Upon being shown this can McDaniel refused to identify it as one of those brought up on the truck. There was also found among the debris in the basement of the burned building a five gallon can which ’“looked something like” the can found in the “Safely Place.” The only basement in the Bumpass Hotel was in the southern end of the main building, some distance from the kitchen annex where the fire started as herein-before described. McDaniel also testified that on the day •the property was insured the accused told him he had a trade on with Mr. J. G. Ballard, of Charlottesville, for the notes, and they left at once for Charlottesville to see Mr. Ballard, but he did not know whether the trade was made or not; he “imagined” it was, as he heard nothing more about it.
This witness further testified that when they passed through Mineral on their way to Charlottesville the accused remarked that the property “is sold now, and I am glad to get rid of it. Said it had been a kind of a Jonah to him, looked like nobody wanted it, and it was all over
Witness next stated that on Saturday the 19th, the accused came by his home.
“Q. Tell the jury what he had to say to you.
“A. He came by that morning and I drove him on out of town, and I asked him when we were going back up to Mineral, that we had not finished putting the furniture up there, and he said that the list we gave Mr. Kidd was not there, and he said there was enough there, and he asked me if I would drive his car for him that night up to Mineral and I told I would not, and he said for me to see him at Saunders’ Drug Store around one o’clock, so I got over there a little before and he came around or pretty close after one, and there was no more said about that at all. I waited around there for several hours. Mr. Newman was there to see him, his truck was there loaded with a load of feed to go to the farm, and they all stayed around there until pretty near sundown and he called me over there and gave me a little check, it was Saturday and told me he had to go to Hopewell, and I did not see him any more.
“Q. When he asked you to drive his car up to Mineral, what did he say?
“A. He said, I did not have guts enough; that I was not worth a damn anyway; that I couldn’t drink whiskey or anything.”
“Q. Did he tell you what he proposed to do up there that night?
“A. Said he had a little work he wanted to do and that all he wanted me to do was to drive the car.”
McDaniel was indicted with the accused as an accomplice and it is admitted by the Attorney-General in his brief that there are not only inconsistencies in his testimony, but it is also at variance in material respects with a written statement made by McDaniel before the first trial of the case and he became a witness for the Commonwealth. He was also discredited in other particulars.
It appears from the testimony of E. S. Ryan, a resident of Hopewell and a witness for the Commonwealth, that he saw the accused in Hopewell that afternoon about 5:30 o’clock, and, while he was not certain, he was satisfied that the accused was not in Hopewell later than 8:00 o’clock that evening..
An effort was made by the Commonwealth to prove by the evidence of one John Shealor, that the accused was in Mineral after midnight on the night of the fire. This witness testified that he was out playing poker with certain other young men the night of the fire, and that he left to go home between 3:30 and 4:00 o’clock; that on his way home he saw what he took to be a maroon colored Chevrolet automobile going through Mineral towards Richmond, at about fifteen miles an hour, with only the parking lights burning; that he noticed that the license number was in the twelve thousands but he only saw the number 12 and a dash, and did not observe what the other figures were, nor could he see who was in the car, or how many. He also testified that he saw about the same time another car going towards Richmond, and also one going in the opposite direction, but he could not tell the license number or color of either of these cars. That several of the card players were considerably under the influence of liquor and that he himself is a drinking man, but did not see anybody take a drink that night. It was also proved by the Commonwealth that the automobile then belonging to the accused was a maroon colored Chevrolet sedan, with license No. 12-291.
It seems needless to observe that this evidence falls too short of its purpose to be considered as even tending to prove the presence of the accused at or near the scene of the alleged crime on the night in question. Shealor’s
On behalf of the accused it was testified by A. H. Brown that about eight o’clock on Saturday evening, the 19th, he took the Chevrolet sedan belonging to the accused to his garage in the city of Richmond to do some work on the motor, in which he was assisted by his brother J. S. Brown, and that he kept the car in his possession until the following, day. J. S. Brown testified to the same effect. To all intents and purposes, these two witnesses are entirely disinterested, and their testimony is in no wise attacked.
We have endeavored to set forth in the foregoing statement all the pertinent and material facts and circumstances testified to on behalf of the Commonwealth, and relied on to prove the accused guilty of the crime charged against him. If we were to concede that the evidence is sufficient to show that the fire was incendiary, we think the facts and circumstances relied on are plainly insufficient to show that the accused was the guilty agent, but at the most only constitute circumstances of suspicion which, if true, are not inconsistent with his innocence.
What was said by the court in Johnson’s Case, 29 Graft., (70 Va.) 814, is applicable here: “These circumstances, taken singly or together, while they create a suspicion of guilt are yet inconclusive and wholly insufficient to prove such guilt, but are also consistent with the fact of innocence. If they be not at least as consistent with the fact of innocence, as with the fact of guilt, they certainly do not amount to such a degree of proof as to connect the accused with the offense and to warrant his conviction thereof.”
“The prisoner is presumed to be innocent until his guilt is established, and he is not to be prejudiced by the inability of the Commonwealth to point out any other criminal agent; nor is he called upon to vindicate his own
In Garner v. Commonwealth, 2 Va. Dec. 458, 26 S. E. 507, a mill house was burned, and tracks were discovered the next morning about the mill and led from it in the direction of the prisoner’s house, which corresponded in measurements and other characteristics with the prisoner’s footprints (were, in fact, his tracks), and there was ill-feeling between the owner of the mill and the prisoner. The opinion in that case, by Keith, P., says: “The utmosl that can be said of the proof is that it shows the burning of the mill as the act of an incendiary; that the prisoner had the opportunity to commit the crime, and that he cherished ill-feelings towards the owner of the property destroyed. These circumstances were sufficient to cause the prisoner to be suspected of the crime, and rendered an investigation of it proper to ascertain whether or not he had any connection with it, but * * * fall short .of that degree of proof which warrants a conviction, or which will sustain a verdict, under our statute, which requires us to consider the motion for a new trial as upon a demurrer to the evidence by the prisoner. There is no evidence whatever which connects the prisoner with the crime charged, and all that is shown in the record may be true (doubtless is true), and, at the same time, be entirely consistent with the innocence of the accused.”
In Pryor’s Case, 27 Gratt. (68 Va.) 1009, it was proved that the fire in question was the work of an incendiary; that the accused had made threats which might have been reasonably construed as an intended purpose on his part to do the owner of the property burned an injury. Tracks were found near the burned building which corresponded in size and other respects with tracks made by the accused,
Upon careful consideration of the whole case, and in llie light of the foregoing authorities, we are of the opinion that the judgment of the trial court should be reversed, and the cause remanded for a new trial to he had therein if the Commonwealth should be so advised.
Reversed and remanded.