People v. Morhar , 78 Cal. App. 380 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from a judgment of the superior court of Los Angeles County, and from an order denying a motion for a new trial. The appellant was convicted under two counts; the first of first degree arson, the second of destroying insured property, the crime specified in Penal Code, section 548.

The evidence is clearly sufficient to establish the fact that arson of the first degree was committed by someone in the burning of the house. At the time of the fire the house was occupied solely by the defendant and his wife and two young children. The fire occurred in the early morning, between 2 and 3 o'clock. It may be assumed, as was indicated, that the family had been several hours in bed. The house doors were locked. In escaping from the house the occupants closed the doors, which locked them, the locks being spring-locks. This was proved by the firemen, who were obliged to break open the doors. The defendant was found among the persons assembled outside the house. He was barefooted at the time. Later defendant obtained and put on a pair of shoes, and went with officers to the police station. The shoes carried an odor of kerosene. The officers called his attention to this fact, but he replied that the smell was like turpentine. At that time, according to the testimony of the witness Larimer, defendant said that he had only one pair of shoes. But at the trial defendant testified that the shoes to which the officers referred were used by him in working around the yard, and that he had not worn them the day before, but had worn another pair. This inconsistency in his statements derived its importance from the fact that at the time of the fire it was found that rags and other articles within the house and on the floor had been soaked with kerosene. If the jury believed that the defendant testified falsely concerning the shoes which he had worn in the house, such false testimony, under the circumstances, had a direct tendency to show guilty knowledge concerning the fire. The defendant and his wife were owners of the house and furniture, both of which were heavily insured. [1] Without further review of the evidence (all of which, however, we have examined), we conclude that while the evidence against appellant is circumstantial, and not direct, it is sufficient. In this respect it is analogous to that produced in People v. Tom Woo, 181 Cal. 315, 328 [184 P. 389, 394], where the supreme court said: "It is the law that neither mere opportunity to commit a crime, nor perjured testimony is sufficient to support a verdict of guilty. Nor are false statements or suspicious circumstances sufficient. It may be conceded that no one of the facts summarized would, if standing alone, be sufficient to uphold the verdict, but when all the circumstances which the jury may have resolved from the evidence are considered together, it cannot be held on appeal that they are not sufficient to warrant an inference of guilt."

The information in the first count charged that the defendant, at the time and place stated, did wilfully, etc., set on fire and burn the described building "then and there occupied by one Elizabeth Morhar, a human being, with intent to destroy the same." The information failed to specify that the burning was done in the night-time. The verdict of the jury as applied to this count found the defendant "guilty of arson, a felony, and we find it to be arson of the first degree as charged in count one of the information."

Appellant contends that the verdict is contrary to law, in that said first count of the information does not charge the public offense of which the defendant was convicted, to wit, arson of the first degree. The two reasons assigned for this contention are that the information did not charge that the burning occurred in the night-time, and that the information did not charge the burning of an inhabited building. [2] In an information or indictment charging arson, in the language of section 447 of the Penal Code, it is not necessary that such information shall state in what degree the crime was committed. "That is for the jury to determine from all the facts and circumstances developed in evidence." (People v. Russell, 81 Cal. 616 [23 P. 418].) Section 452 of the Penal Code reads as follows: "To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof. [3] The statement in the information that the building was "then and there occupied by one Elizabeth Morhar, a human being," was a sufficient compliance with the requirements of section 452. There was no demurrer to the information, nor was any claim asserted by defendant in the court below that the information was subject to any legal objection. We think that the information sufficiently set forth in said count one a charge of arson under which a conviction of arson in the first degree may be sustained. And the evidence shows that in fact the fire occurred in the night-time, and that the house was then and there inhabited and actually occupied by Mrs. Morhar, as well as by the defendant and by their two children. That the wife and children were not technically "in possession" of the property is, under such circumstances of occupancy, an immaterial fact.

[4] In the third point raised by appellant he claims that certain evidence offered by him was erroneously excluded, to his prejudice. It is argued that this evidence was offered for the purpose of showing not only that there was lack of motive for the defendant to commit the crime, but that it would be very improbable that he would have burned the house without taking the precaution of first removing certain sacred relics which were kept in the house. The defendant testified that "I had the Ten Commandments and a few things, you know. . . . I kept it with me all the time. Q. What does it mean to you? A. It means a whole lot." On objection that this called for a conclusion of the witness the objection was sustained. "Is it part of your religion or —" "Same objection." "Objection sustained." The witness then testified that he had also wanted to get from the house, beside The Ten Commandments, a "taless," which was a present made him when he was married.

"Q. Has it any significance in your religion? A. Yes."

Following the answer, this was objected to as incompetent, irrelevant, and immaterial and objection sustained. The attorney for defendant then said he wanted to produce this article and intended to prove further by competent witnesses what such a thing means to a man of that type. Although the judge then stated that he did not believe such evidence competent, it was not offered at that time, nor does it appear that such evidence was offered later. The following is the only additional evidence to which we are referred on this point: "Q. How old were those commandments? A. About one hundred years." Following the answer, the district attorney objected to this as incompetent, irrelevant, and immaterial. The Court: "Objection sustained." "Q. How old was this taless, you speak of? A. About one thousand years." District Attorney: "Same objection." The Court: "Objection sustained." Assuming that under the circumstances of this case the defendant had the right to offer evidence tending to prove that by reason of certain religious beliefs and feelings, he would have been moved to preserve rather than to destroy property of religious significance to him which was in the house at the time of the fire, nevertheless we think that this record does not show prejudicial error. The essential answers were given before the objections to the questions were made, and there was no order striking from the record the answers thus given. Practically, if not technically, they remained before the jury, without any instruction that such evidence be disregarded. We think it is not reasonable to conclude that the rulings, made in the manner stated, and of which appellant complains, had any important influence against the defendant.

[5] A stipulation was entered into which apparently covers the entire objection on the exclusion of certain witnesses. The stipulation referred to being the stipulation whereby the court allowed a continuance of several hours, in order that defendant might obtain the evidence of two witnesses. This was done upon agreement of counsel for the defendant that he would not introduce the testimony of the very witnesses to the exclusion of whose testimony he is now objecting. [6] If attorneys direct witnesses that they need not appear until a certain time, and the court is ready to receive their evidence before that time, we think it is within the discretion of the trial court to refuse a continuance requested for the purpose of producing those witnesses. The witnesses referred to as being excluded were not on hand to testify when their evidence was offered, and it appears from the record that they were not offered again as witnesses and the record does not show if they were ever present when the jury was in the box.

[7] The fourth objection of appellant is that certain attempted impeachment of defendant's testimony was improper and irregular. In laying the foundation for impeachment the district attorney asked the defendant whether at a certain time and place, and in the presence of certain parties, he had stated certain things. In reply the defendant had admitted some portions of the conversations, had been evasive as to others and denied other parts or portions of the conversations in toto; and yet when the People put on their evidence impeaching the statements of the defendant they did not limit such so-called impeachment to the portion of the conversation denied, but asked as to each and all of the so-called conversations. The defendant objected on the ground that there was therefore no proper foundation for the so-called impeaching questions. However, we hold that it was proper to ask as impeaching questions the questions as to conversations, which had been propounded to the defendant and which he had denied. As to the other questions propounded, the answers of the so-called impeaching witness were not contradictory to those of the defendant, and were not such that the error in admitting them resulted injuriously to the defense.

[8] The objection that certain conversation was a privileged conversation between defendant and his wife is answered by the very statement in the brief of the appellant wherein it shows that certain police officers were present when the conversation took place. This would deprive the conversation of standing as a privileged communication. [9] "A third person overhearing a confidential communication may testify to it, for the same reason recognized in the privilege of a client's communication with his attorney." (Wigmore on Evidence, sec. 2339.) Also, see cases cited in such section and section 2326. Also, 40 Cyc. 2359; Ann. Cas. 1918A, 441; People v. Swaile, 12 Cal.App. 192 [107 P. 134].

[10] As a fifth objection it is claimed that there was misconduct on the part of the court in making certain remarks in the presence of the jury. Such remarks were called forth by the nature of the examination conducted by the attorney in summoning witnesses for a certain time and excusing such witnesses from obeying such summons, thus placing the court in such a position that it could not punish witnesses for contempt for not appearing at the time specified in the subpoena served upon them. The remarks made by the judge were pertinent to the situation presented, and were not such as to constitute misconduct.

An examination of the entire record in this case fails to disclose any error that has in any way resulted in a miscarriage of justice.

The judgment and order are affirmed.

Conrey, P.J., concurred.