Fox v. State

SHIELDS, Judge.

Appellants were tried by a jury and convicted of first degree arson. I.C.1971, 35-16-1-1 (Burns Code Ed.). Because we find the evidence insufficient to support the convictions of Fox, Havens, York, and Perry, and that reversible error was committed as to Kapp, we will discuss only those issues necessary to the disposition of this appeal or likely to appear upon Kapp’s retrial.

I

We consider first appellants’ argument that the burned building was not “part or parcel of a dwelling house.”

The statute under which appellants were charged and convicted is I.C. 35-16-1-1, which provides, in pertinent part:

Any person who wilfully and maliciously sets fire to or burns or causes the setting of fire to or burning of . any kitchen, shop, barn, stable, garage or other outhouse, or other building that is part or parcel of any dwelling house ¹

Although no Indiana case has defined the phrase “part or parcel of any dwelling house,”² many other jurisdictions have done so.³ At common law, an outhouse which was a “parcel of” a dwelling house was one “used in connection therewith and situated within- the curtilage.” Jones v. Commonwealth (1931), 239 Ky. 110, 38 S.W.2d 971, 973. In Jones, the court, in construing the Kentucky arson statute (one substantially identical to our own),⁴ reversed a conviction of first degree arson in that the building burned, a former dwelling house converted into a crib for fodder and located 250-300 yards from the dwelling house, was held not to be “parcel” of the dwelling house as it was clearly without the “curtilage” of the dwelling house.

“Curtilage” has been defined as:

“. . . the space of ground adjoining the dwelling house used in connection therewith in the conduct of family affairs and for carrying on domestic purposes, usually including the buildings occupied in connection with the dwelling house. It is the propinquity to a dwelling and the use in connection with it for family purposes which is to be regarded.” (emphasis added) State v. Lee (1927), 120 Or. 643, 253 P. 533 at 534-535.⁵

As the authorities indicate, it is the proximity to the dwelling and the use in connection therewith for family purposes and the carrying on of domestic employment that are of major importance in determining whether an area or building is to be considered within the “curtilage” (i. e., part or parcel) of the dwelling house. This comports with the view that first degree arson is an offense against the security of habitation, rather than property. Jones v. State (1904), 70 Ohio St. 36, 70 N.E. 952.⁶

In the case at bar, the evidence viewed most favorably to the State shows that the burned building was a barn that had been converted into a combination garage-work area-recreation room. The building, located 80 to 100 feet from the dwelling house, was insulated and panelled and housed a furnace, telephone, and stereo. The Mowerys (owners of the property) often kept vehicles in the building, and Mr. Mowery also had a work area in the building. The building had been used on several occasions for parties and the Mowerys’ daughter and her friends often used the building to play music and dance.

The usage of the building as an addition to their dwelling house, i. e., “for family purposes and the carrying on of domestic employment,” and its proximity to the dwelling house, persuade us that it was within the “curtilage,” i. e., that the building burned was “part or parcel” of the Mowery dwelling house.

II

Appellants challenge the sufficiency of the evidence to establish their identity as the perpetrators of the arson at Mowerys’ building. When reviewing the sufficiency of the evidence, this Court considers the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence. If there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Moore v. State (1978), Ind., 376 N.E.2d 1129. Furthermore, this Court does not judge the credibility of witnesses nor weigh the evidence. Bryant v. State (1978), Ind., 376 N.E.2d 1123.

In the case at bar, the evidence most favorable to the state reveals that the five appellants were seen together from approximately 2:30 to 3:00 A.M. visiting several bars in Marion, Grant County, Indiana and driving a dirty, goldish-green 1968 Oldsmobile, registered to Fox, which reportedly had “extremely loud mufflers.” The appellants were imbibing in spirits at the Swing Bar when, somewhere around 3:00 A.M., Marion police officers were called to the bar twice to quell disturbances⁷ and, on the later occasion, also to close the bar. On the former occasion the bar was surrounded by police and York was heard to say, “Isn’t there some kind of charge against police harassment?” During this first visit Captain Mowery (Mowery), the owner of the property that was burned, “broke up” what appeared to be a verbal confrontation between Fox and another patron. As Fox was walking back to his table he stated, “That’s cool, Mowery. That’s cool.” During the second police visit to the bar, after Mowery announced that the bar was closed, Fox leaned over as he passed Mowery on the way out and said, “I’ll see you later, Mowery,” following which a verbal exchange of words occurred between Fox and Mowery. About the same time this confrontation occurred, Havens said, “F-the pigs. We don’t have to listen to this s_Let’s get out of here.”

While the Swing Bar was being closed, Officer Ellis, enroute back to his squad car, noticed suspicious-looking tools⁸ on the rear floor board of Fox’s Oldsmobile. Mowery, upon being informed of these tools, ordered the vehicle to be kept under surveillance. Appellants left the Swing Bar and proceeded to the Kewpie Bar. While at the Kewpie Bar, Perry left the table where all five appellants had been sitting, came back a few minutes later and stated, “Everything’s okay. They’re scattered.” Fox then said, “Well, let’s go then,” telling an inquirer who was asking to go with them, “. we are just going to take care of a little business.” After departing from the Kewpie Bar, appellants stopped at Stoller’s Tavern and purchased a fifth of whiskey and six 6 oz. (sic) bottles of Coca Cola. Appellants were last seen, prior to the fire at Mowery’s, parking the Oldsmobile behind a house in Marion at about 3:25 A.M., at which time surveillance of the vehicle was withdrawn. The vehicle was gone when Officer Stevens checked back at 3:50 A.M.

Carol Mowery (wife of Captain Mowery) was awakened by the dog’s barking sometime between 3:30 and 4:00 A.M. After hearing a car idling for some time, she went downstairs and looked out the window and saw two people in a car parked by the barn and three others milling about by the barn. Immediately thereafter she saw flames shoot out of the cab of the stake-bed truck parked outside, next to the barn. She then saw the subjects get into the car and drive off. Some minutes later she called the police (testimony revealed that the call was received at 4:12 A.M.) and her brother-in-law, Clifford Mowery, who was a fireman. In a matter of minutes Clifford arrived and went out to the barn with Mrs. Mowery where they discovered that, in addition to the truck being on fire, the floor mat of the Corvette parked inside the barn and a wall and part of the ceiling of the barn were also aflame. Mrs. Mowery could not identify or describe any of the persons she saw except to say that she assumed they were males by the way they were dressed, and that one of them was very tall and large. She described the car she saw parked beside the barn as a dirty, greenish-gold Oldsmobile which had a noisy exhaust.

After the fire, the greenish-gold Oldsmobile was observed driving through Van Bu-rén, Grant County, Indiana, which is located approximately seven miles east of Mowery’s house. Marshal Marley and Officer Campbell pursued the vehicle and stopped it approximately three-fourths of a mile east of Van Burén at about 5:27 A.M. They arrested the occupants of the car, Perry, Kapp, and Havens, on a preliminary charge of arson. The automobile was impounded. Mrs. Mowery later identified it as the car she saw by the barn the morning of the fire when an officer took her to a garage where it was parked with “several cars . and some trucks and stuff.”

Deputy Sheriff Cook pursued a gold, 1967 Buick through Marion sometime between 4:00 and 4:45 A.M. The Buick was subsequently found to have been stolen from Van Burén sometime earlier that night. Cook identified Fox and York as the individuals who abandoned the vehicle and fled on foot.

Sheriff Ash, while looking around the burned area, found a 7 oz. (sic) coke bottle which smelled as if it had contained whiskey or alcohol. He further observed a boot-print in the snow beside the barn. Kapp’s boots were subsequently brought to the scene and an impression of one of them was made in the snow beside this print. Photographs of the bootprint, as well as Kapp’s boots, were admitted into evidence and the similarities were pointed out by the Sheriff. There was no evidence as to the presence of any inflammables on the scene. Fireman Mowery testified that in his opinion the fires were not accidental.⁹

Assuming, arguendo, that this evidence is sufficient to prove that appellants were the five individuals Mrs. Mowery observed at the scene, there is still a link missing in the chain of circumstantial evidence which the State has woven around appellants: that is, who were the two individuals Mrs. Mowery observed that remained in the car, and were these two individuals accessories to the commission of the arson? The State has proven that two individuals remained in the car while three other individuals were perpetrating the crime. Thus, in order to sustain the convictions of these two individuals, it must be shown that they were accessories¹⁰ to the arson.

The general rule is that mere presence at the scene of the crime is not sufficient to allow an inference of participation. Conard v. State (1977), Ind.App., 369 N.E.2d 1090; Bond v. State (1971), 257 Ind. 95, 272 N.E.2d 460. However, we acknowledge that presence, coupled with other circumstances, may be sufficient. Thus, evidence of companionship with one engaged in a crime, a course of conduct before and after the offense, and failure to oppose the crime when imposed with a duty to do so, without active participation in the commission of the crime, are circumstances which may be considered in determining whether aiding and abetting may be inferred. Cotton v. State (1965), 247 Ind. 56, 211 N.E.2d 158. However, an inference from such evidence, to be reasonable, must be coupled with evidence of knowledge or evidence from which knowledge may be reasonably inferred, that the criminal conduct is contemplated, in progress or completed.

Thus, the State must show that the ones alleged to aid or abet were aware of and consented to the activity condemned by law, Mattingly v. State (1952), 230 Ind. 431, 104 N.E.2d 721; although it need not necessarily prove a pre-conceived plan. Simmons v. State (1974), 262 Ind. 300, 315 N.E.2d 368. In the case at bar, there was no evidence that could show the two individuals in the car had any knowledge that the arson was planned or committed.¹¹ There was no evidence of their location in the car, or of any motion by them. While the testimony relating to the appellants’ activities in the Kewpie Bar might indicate a criminal design in the making, can one infer from this evidence that they were scheming to commit an arson?¹² This may raise a suspicion that appellants may have known of a criminal design to commit an arson, however, mere suspicion that appellants were aware of a criminal design is not enough. Conard v. State, supra. The evidence adduced at trial is insufficient to sustain the convictions of the two individuals who were inside the car while the arson was being committed.

This leads to a further problem, being the lack of evidence indicating which of the appellants were inside the car. The only evidence indicating which of the appellants were outside the car was Kapp’s boot-print ¹³ found at the scene. The evidence is, therefore, sufficient to sustain Kapp’s conviction as a principal. With respect to the other four appellants, however, we must reach a different result. Because there is insufficient evidence to sustain the convictions of the two individuals that were inside the car, and since there is no evidence indicating who those individuals were, how can we, as an appellate court, pick and choose which of the four remaining appellants were inside that car? The answer is: We cannot.¹⁴ It is fundamental to our system of law that guilt is individual. Delgado v. United States, (9th Cir. 1964) 327 F.2d 641, 642. Here, that means there must be sufficient evidence to support a finding, as to each appellant, that he was either a principal or an accessory to the arson as charged. The evidence was insufficient in this regard; thus, we are constrained to hold that the evidence was not sufficient to sustain the convictions of Fox, Havens, York, and Perry.¹⁵

Ill

Next, we consider Kapp’s argument that the evidence' is insufficient to establish a willful and malicious burning. Kapp properly cites Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364, as authority for the proposition that the law of Indiana presumes that a fire accidentally resulted from some providential cause, rather than from a criminal cause, unless the evidence proves otherwise.¹⁶ We do not agree, however, that the evidence was insufficient to overcome the State’s burden of proving that the fire was not the result of natural causes.

As the Supreme Court noted in Ellis, there is rarely direct evidence of the actual lighting of a fire by an arsonist; rather, the evidence of arson is usually circumstantial. Such evidence is often of a negative character; that is, the criminal agency is shown by the absence of circumstances, conditions, and surroundings indicating that the fire resulted from an accidental cause. State v. Edwards, (1934) 173 S.C. 161, 175 S.E. 277, 278.

In the instant case, three persons were observed milling about a building late at night on property where they had no right to be. Immediately after one individual was observed standing beside it, flames shot out of the stake-bed truck. Furthermore, fires were subsequently discovered in two other separate locations. All this evidence, taken together, supports the inference that the fires were set “wilfully and maliciously.”

IV

Kapp alleges that the trial court erred when it denied his Motion for Discharge, filed pursuant to the provisions of Ind.Rules of Procedure, Criminal Rule 4(C). The record reveals that Kapp was arrested on January 19,1974, and charged, by information, with first degree arson on January 22,1974. The record further reveals that Kapp was released on bail January 23,1974. The trial was not commenced until March 4, 1975.

C.R. 4(C) was amended, to be effective on February 1,1974. The pre-amendment version prior to February 1, 1974, provided:

Defendant on recognizance. No person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than one year continuously from the date on which a recognizance was first taken therein; but he shall be discharged except as provided by subdivision (A) of this rule, (emphasis added).

The amended version of C.R. 4(C) that became effective February 1, 1974 provided that the one year period, at issue herein, began to run “on the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later . . . .” It is Kapp’s contention that the amended version of C.R. 4(C) is applicable to the facts of this case.

Although no decisions have squarely addressed this precise issue, there have been cases that have refused to give retroactive application to the February 1. 1974 amended version of C.R. 4(A). Those cases have held that the amended version operates prospectively only, as of February 1, 1974. See Gubitz v. State, (1977) Ind.App., 360 N.E.2d 259; Hodge v. State, (1976) 264 Ind. 377, 344 N.E.2d 293; State ex rel. Young v. Madison Circuit Court, (1974) 262 Ind. 130, 312 N.E.2d 74. Since the courts have applied the amended version of C.R. 4(A) prospectively only, it would naturally follow that C.R. 4(C) should be applied prospectively only. We therefore hold that the amended version of C.R. 4(C) is to be applied prospectively only and has no application to arrests made or informations filed before February 1, 1974.¹⁷

Applying the pre-amendment version of C.R. 4(C) to the case at bar, it is apparent that Kapp was not brought to trial within one year after the taking of his recognizance. Under the pre-amendment version of C.R. 4(C), however, any delay chargeable to the defendant resulted in the one year period of C.R. 4(C) running anew, i. e., commencing on the last day of the delay. State v. Moss, (1976) Ind.App., 343 N.E.2d 827; Moreno v. State, (1975) Ind.App., 336 N.E.2d 675; Holt v. State, (1974) 262 Ind. 334, 316 N.E.2d 362. In the case at bar, the record reveals that Kapp filed a motion for change of venue from the county, which was denied March 11, 1974. This motion resulted in delay chargeable to Kapp. See State v. Moss, supra. The one year time period, therefore, began to run anew on March 11, 1974. Gubitz v. State, supra. Thus, Kapp was timely brought to trial and his Motion for Discharge was properly denied.

V

It is Kapp’s contention that when the trial court granted Perry’s¹⁸ motion to dismiss the information, no new information was ever filed, and thus he must be discharged. The record, however, reveals that Perry’s motion asked the court “that his Motion to Dismiss [the information] be granted, or in the alternative, an adversarial preliminary hearing be held to determine whether there is probable cause that the defendant committed the alleged offense . .” (emphasis added). The record further reveals that on June 4, 1974, the trial court made the following entry: “Motion of Perry is sustained and Probable Cause hearing set for June 6, 1974 at 9:30 A.M.” As this entry indicates, the trial court did not dismiss the information; rather,. it granted Perry’s alternative request for relief. We, therefore, find no merit in Kapp’s argument.

VI

Kapp argues that the trial court erred when it denied his pretrial motion to suppress evidence seized after his arrest, i. e., the boots he was wearing the morning of the fire. The day before trial the court apparently heard evidence and argument on said motion to suppress but this evidence was not included in the record on appeal. Since there is no transcript of the evidence adduced at the pretrial hearing had on the motion, we cannot review the trial court’s denial thereof. It is the duty of the appellant to present an adequate record to this appellate court; we cannot consider an allegation of error when there is nothing in the record to support it. See, Bobbitt v. State, (1977) Ind., 361 N.E.2d 1193, 1197; Schuman v. State, (1976) 265 Ind. 586, 357 N.E.2d 895, 899.

VII

Kapp argues that the trial court erred in permitting Clifford Mowery, the brother of Captain Mowery, to testify as an expert witness regarding the incendiary nature of the fire. He alleges that no foundation was laid to qualify fireman Mowery as an expert witness and that the evidence shows he was not qualified to render such an opinion.

It is well established that the question as to whether a witness is qualified to testify as an expert lies within the sound discretion of the trial court. Reid v. State, (1978) Ind., 372 N.E.2d 1149; Niehaus v. State, (1977) 265 Ind. 655, 359 N.E.2d 513; Pettit v. State, (1972) 258 Ind. 409, 281 N.E.2d 807. The trial court’s determination will not be set aside unless there has been an abuse of that discretion. Reid v. State, supra. In the case at bar, the foundation testimony revealed that fireman Mowery had worked as a fireman for three and one-half years. Subsequently, the trial court, upon objection to fireman Mowery’s opinion testimony as to the cause of the fires, stated that “a man who has worked for three and one-half years can qualify as an expert, perhaps not as much an expert as one who has had a great deal of training in the Fire Marshal’s office or various places. But that’s, that’s for the jury to determine how expert he is. I think he does qualify as an expert sufficient to express an opinion on those things.” While we do not believe that working as a firefighter necessarily qualifies one to testify as to the cause of the fire, subsequent evidence,¹⁹ disclosed through examination, revealed that fireman Mowery did have some training and experience in the investigation of fires and that it was a part of his duties to render an opinion as to the cause of fires. This evidence supports the trial court’s determination that fireman Mowery was qualified to testify as an expert.

VIII

Finally, we consider Kapp’s allegation that the admission of the following testimony of Captain Mowery, recounting an admission York made to Mowery on the day of his arrest, was erroneously admitted:

A Well, when I came into the detective bureau, I asked, uh, “Why?”. And that’s all I said was “Why?”. And he said he didn’t know why. And I had never made any references as to why he did anything. I just said, “Why?”. He said, “I don’t know why”. And, in the conversation, he admitted that he was there, but refused to give me a statement to that effect.

Q All right. You say he wouldn’t give you a signed statement?

A That’s correct.

Q Okay. But he did admit being present at your home?

A The morning of the fire.

Q Okay.

Kapp objected to and moved to strike the testimony because it was hearsay and then moved for a severance. He further objected to the testimony because the State had made no mention of such a statement in its response to a discovery order which included a request for “ . . . the text of any oral statement or confessions or admissions if the same were made at any time by the defendant.”²⁰ The testimony was admitted, the jury-being admonished to consider it only against York inasmuch as it was hearsay as to the other appellants. The motion for severance was overruled. The following day, upon completion of Mowery’s testimony, the trial court, upon motion, struck the testimony of Mowery relating to York’s admission, stating to the jury:

. In response to a motion, at this time, due to the fact that no mention was made of an admission by Mr. York in the statements to the defense counsel, where anything of that kind should have been made, I am going to order you to disregard that statement that was made that Mr. York had said that he did this or confessed in any way. You are to disregard that. It’s not to be considered.

The State takes the position that York’s admission was not prejudicial to Kapp because it made no references to anyone and,' therefore, only implicated York. Kapp argues, inter alia, that the admission of this statement was a violation of the rule stemming from Bruton v. United States, (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The issue we must resolve in this regard is whether the Bruton rule applies to a statement that tends to significantly incriminate a co-defendant even though he is not referred to in the statement.

Bruton held that, despite instructions to the jury to consider the statement only as against the declarant, admission at a joint trial of'a defendant’s extrajudicial confession implicating a co-defendant violated the co-defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.²¹ While no Indiana decisions have addressed the specific issue before us, it is our opinion that the Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement. The fact that the incrimination amounts to a link in a chain of circumstances rather than a direct accusation cannot dispose of the applicability of the Bruton rule. Just as one can be convicted on circumstantial evidence, one can be circumstantially accused.

The dissent is of the opinion that since IC 35-3.1-1-11, supra, uses the words “makes reference” and “references ... effectively deleted,” that if there is no reference to the defendants, the statement is admissible. This, however, was not the holding of Bruton. Bruton spoke in terms of implicating, not referring. Clearly, one can be implicated without being specifically referred to. Indeed, this has been recognized by our Supreme Court;

“In protecting this right of confrontation, we cannot permit references by logical inference that could not be made directly. Because of the context in which the out-of-court statements are to be used, i. e., in a trial of two or more defendants wherein all are charged with the same offense, it will require more than a fig leaf to shield the non-declar-ants from the declarations of a declaring co-defendant. In consequence, there probably will be but few such statements that are susceptible to effective deletion within the meaning of the statute. Where such effective deletion is not clearly possible, due regard being had for the context in which the statement will be used and the normal inclination of a jury to associate a declarant’s co-defendants with pronouns or blanks or other vagaries in the edited version, the state must be left to choose between separate trials or foregoing the use of the coveted statement. In the following cases, the Court held that the redaction was ineffective because of the almost inevitable association of the appellant with the non-testifying declarant, under the circumstances of the case. United States ex rel. La Belle v. Mancusi, (1968, CA2 N.Y.) 404 F.2d 690; Serio v. United States, (1968) 131 U.S.App.D.C. 38, 401 F.2d 989.” Carter v. State, (1977) Ind., 361 N.E.2d 145 at 148.

As this statement from Carter recognizes, in certain instances a co-defendant will be implicated even though the references to him have been deleted. Similarly, one can be implicated by a confession that does not refer to him.

The very nature of the State’s proof at trial in the case at bar indicates the substantial likelihood that the admission of York’s statement would prejudice the other appellants. Since the eyewitness identification evidence was tenuous, the identity of the appellants as the perpetrators of the arson was sought to be established circumstantially by evidence of their companionship before and after the fire. Indeed, the bulk of the voluminous transcript of the evidence in this case is comprised of testimony relating to the appellants being together before and after the fire. When the State has shown, as in the case at bar, that the appellants were together before and after the crime was committed, and a statement of one of the appellants is admitting saying, “I was there,” it seems beyond question that this statement is just as prejudicial as a statement saying, “They were there.” We simply cannot say that the inability of the other appellants to cross-examine York was an insignificant deprivation of their constitutional right to confront and cross-examine adverse witnesses; particularly where, as here, the co-defendants had no advance notice of such statement. As stated in Carter, supra, at p. 148, “In protecting the right of confrontation, we cannot permit references by logical inference that could not be made directly.”

One further question that must be resolved is whether the admonishment to the jury to disregard York’s admission effectively cured the error in admitting the statement. We think not. As Justice Powell stated in Chaffin v. Stynchcombe, (1973) 412 U.S. 17, at 41, 93 S.Ct. 1977, at 1990, 36 L.Ed.2d 714:

“ . . . it is quite unrealistic to believe that instructions to disregard evidence that a jury might treat in a manner highly prejudicial to a defendant will often be followed.” See also Bruton v. United States, supra 391 U.S. at 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Sims v. State, (1977) Ind., 358 N.E.2d 746 at 748.

Thus, where the evidence, as here, was entirely circumstantial, York’s admission, as evidence of appellants’ presence at the scene of the crime, cannot be said to be harmless, even though later stricken from the record. Because of this error, we are compelled to reverse Kapp’s conviction and order a new trial.

The judgment of the trial court is reversed and remanded with instructions to discharge Fox, Havens, York, and Perry and to order a new trial for Kapp.

MILLER, J., concurs with opinion. BUCHANAN, C. J., dissents with opinion.

1 . This portion of I.C. 35-16-1-1 is substantially a codification of the common law definition of arson. At common law, arson was the willful and malicious burning of another’s dwelling house, or of an outhouse within its curtilage. See, 6A C.J.S. Arson § 2 (1975); 5 Am.Jur.2d Arson and Related Offenses § 1 (1962).

2 . In Abbott v. State (1978), Ind.App., 371 N.E.2d 721, the court, in upholding a conviction of entering to commit a felony held that an attached garage was “part and parcel” of the family dwelling. The court, however, did not discuss or define “part and parcel.”

3 . See, 25 C.J.S. Curtilage, p. 81-86; 6A C.J.S. Arson § 12b.

4 . I.C. 35-16-1-1 employs the phrase “part or parcel,” where the Kentucky statute simply said “parcel.”

5 . See also, Commonwealth v. Jones, supra, 38 S.W.2d at 973, wherein the court defined “cur-tilage” as “a courtyard or the space of ground adjoining the dwelling house necessary and convenient and habitually used for family purposes and the carrying on of domestic employment. . . and State v. Bugg (1903), 66 Kan. 668, 72 P. 236 at 237, wherein the court held, “We think the Legislature used the word ‘curtilage’ . . intending that it should include all buildings in close proximity to the dwelling, which are continually used for the carrying on of domestic employment . . .”

6 .Accord, Simmons v. State (1955), 234 Ind. 489 at 502, 129 N.E.2d 121 at 127, where Justice Bobbitt, concurring, stated, “The clear intent of the legislature as evidenced by [the predecessor to I.C. 35-16-1-1] was to protect a man’s home or place of habitation.”

7 . It appears as though appellants were not involved in either disturbance that occasioned the police visits to the Swing Bar. ■

8 . The tools observed were two bolt cutters, a small sledge hammer, a socket wrench handle, and a small flathead screwdriver.

9 . The alleged error in the admission of fireman Mowery’s testimony is discussed infra in VII.

10 . IC 1971, 35-1-29-1 (Bums Code Ed.) provides:

Accessory before the fact. — Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal. [Acts 1905, ch. 169, § 224, p. 584; 1974, P.L. 143, § 17, p. 604.]

11 . Nor was there any evidence involving the arrest of appellants to indicate they had knowledge that a crime had been committed. To the contrary, Perry told Mowery, at the arrest site, that he had been asleep in the car and did not know anything.

12 . One might just as reasonably infer they were scheming to commit a burglary. Indeed, there was much testimony introduced by the State that indicated one or more of the appellants had committed a break-in in a store in Van Burén at around the same time the arson was being committed.

13 . See, Johnson v. State, 380 N.E.2d 566 Ind.App. (1978) as to the admissibility of footprint comparisons on the issue of identity.

14 . Accord, Bond v. State, supra. In Bond, the appellant was with two other women when one of them took a dress from a store without paying for it. In that case there was no evidence identifying the appellant with any specific act of taking the property charged; nor was there any evidence that the appellant had any knowledge of the objective or purpose of the trip to the store. In reversing the appellant’s theft conviction, Chief Justice Arterburn stated:

“From the evidence here no one can determine which of the three women took the coat or dress found missing although circumstantial evidence points to one of the three but the triers of fact have no right to pick one out of the group and hold such person guilty without some specific evidence pointing to the guilt of that particular [person].” 275 Ind. at 99, 272 N.E.2d at 463. (emphasis added).

15 . Due to our disposition of this issue, we will only address infra those issues raised by Appellant Kapp.

16 . While Ellis spoke in terms of the corpus delicti of arson, one must not confuse this with the elements of arson. The elements of arson are: (1) The appellant (2) wilfully set fire (3) to a dwelling house. Hancock v. State, (1971) 256 Ind. 697, 271 N.E.2d 731. The statute, I.C. 35-16-1-1, uses the terms “wilfully and maliciously.” A “willful” setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally, involuntarily, or negligently done, and implies that 'the act must be done knowingly and according to a purpose. 5 Am.Jur.2d Arson and Related Offenses, § 11, p. 808. A “malicious” burning is an act done with a condition of mind that shows a heart regardless of social duty and bent on mischief, evidencing a design to do an intentional wrongful act toward another without any legal justification or excuse. Id. at p. 809. The element of malice may be inferred from the willful act of setting the fire. Commonwealth v. Lamothe, (1961) 343 Mass. 417, 179 N.E.2d 245.

Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Simmons v. State, (1955) 234 Ind. 489 at 492, 129 N.E.2d 121 at 122. The corpus delicti of arson consists of: (1) the burning of the property in question, and (2) a criminal agency as a cause of that burning. Ellis, supra. The court, in Williams v. State, (1930) 90 Ind.App. 667, 169 N.E. 698, commenting on the second element of the corpus delicti of arson, stated, “ ‘. . .it must appear that the burning was by the willful act of some person criminally responsible, and not the result of natural or accidental means’ ” (citations omitted). 90 Ind.App. at 676, 169 N.E. at 701.

As Riley v. State, (1976) 265 Ind. 43, 349 N.E.2d 704 pointed out, “. . every crime may be said to have a ‘corpus delicti’ which will necessarily be demonstrated in proving the elements of the crime.” 265 Ind. at 45, 349 N.E.2d at 706. In the case of first degree arson, proof that the burning was “wilfully and maliciously” will establish “a criminal agency as a cause of that burning.” Thus, while the distinction between the corpus delicti of the crime and elements of the crime is immaterial in the instant case, it must still be borne in mind that the two concepts are distinct.

17 . Moreover, it would be ludicrous to apply the amended version in the instant case, since the result would be to “trigger” the running of the one year time limit by an arrest made or information filed before the amended rule was even to take effect.

18 . The corrected record reveals that Kapp joined in this motion on June 4, 1974.

19 . Although a proper foundation had not been laid when fireman Mowery’s opinion was admitted, this later evidence did establish a proper foundation sufficient to uphold the trial court’s prior ruling admitting the evidence. See, Carpenter v. State, (1978) Ind.App., 378 N.E.2d 908, 911.

20 . In light of our disposition of this issue, we will not address Kapp’s arguments pertaining to the violation of the discovery order. We do note in passing, however, that the record does indicate the State exhibited bad faith when it failed to disclose the statement to appellants prior to trial. This type of action we cannot condone. See, Reid v. State, supra, as to possible sanctions in such cases.

21 . The Indiana legislature responded to the Bruton decision by enacting I.C. 35-3.1-1-11, which provides, in pertinent part:

(b) Whenever two [2] or more defendants have been joined for trial in the same indictment or information and one or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect one [1] of the following courses:

(1) a joint trial at which the statement is not admitted into evidence;

(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or

(3) granting the moving defendant a separate trial. In all other cases, upon motion of the defendant or the prosecutor, the court shall order- a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant’s right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.

(c) When such information would assist the court in ruling on a motion for a separate trial, the court may order the prosecutor to disclose to the court in camera any statements made by the defendants which the prosecutor intends to introduce in evidence at the trial. [IC 1971, 35-3.1-1-11, as added by Acts 1973, P.L. 325 § 3, p. 1750.]

I.C. 35-3.1-1-12 governs severance motions and provides:

Motion for severance of crimes and defendants.—

(a) A defendant’s motion for severance of crimes or motions for a separate trial must be made before or at the close of all the evidence during trial if based upon the ground not previously known. The right to severance of crimes or separate trial is waived by failure to make the motion at the appropriate time.

(b) If a defendant’s pre-trial motion for severance of crimes or motion for a separate trial is overruled, the motion may be renewed on the same grounds before or at the close of all the evidence during trial. The right to severance of crimes or separate trial is waived by failure to renew the motion.

(c) If a defendant’s motion for severance of crimes or separate trial is granted during the trial, the granting of the motion shall not bar a subsequent trial of that defendant on the crimes charged. [IC 1971, 35-3.1-1-12, as added by Acts 1973, P.L. 325 § 3, p. 1750.]