Pozil and Jaffe v. State

It is urged with much earnestness that the evidence is insufficient to sustain the conviction; that the criminative facts relied on by the State lose much of their force when analyzed in connection with the other evidence and are not sufficiently cogent to exclude every reasonable hypothesis except that of appellants' guilt which is required in a case dependent wholly upon circumstantial evidence.

The store occupied by appellants had a partition in it cutting off a room in the rear which will be referred to as the "back room." The fire originated here and the damage done was confined mostly to things stored in this back room and to merchandise on shelves against the partition wall on the inside of the main store. The merchandise stored in the back room was referred to by appellants as the "reserve stock." The evidence seems to establish beyond question that the fire was of incendiary origin. Coal oil or a low grade of gasoline appeared

to have been used in one corner of the back room and also to have been thrown upon boxes and upon the goods on shelves therein. Garments of various kinds saturated with this same substance were found scattered in a number of places in the main store. The fire was never communicated to them. No inflammable train seems to have been laid between these oil soaked garments, nor between them and where the fire originated, at least no evidence appears indicating this. The fire was discovered about one-thirty at night. The proof shows it could not have been burning more than thirty minutes when discovered and the alarm given which was answered promptly by the fire department. There is no evidence indicating that the fire was set by a "slow process." The State was not able to show that either of appellants were at or near the store later than ten o'clock prior to the fire. They, with their wives were attending a party. Mr. Posil was called by his daughter about ten o'clock to come and assist in starting an automobile with which she was having trouble. Appellants left the party together in Jaffe's car. They testified that they drove by the store and noticed the lights in the show window were on. One of them turned the lights off from a switch on the outside of the building by the use of a key. The State apparently did not know that appellants went by the store upon this occasion until the fact was disclosed by them.

It seems to have been the contention of the State that appellants set fire to the building for the purpose of securing the insurance which had recently been largely increased. This increase of insurance is one criminative fact relied on. Analyzing the evidence upon this point it shows the fire occurred on the 10th of March. On the first of January preceding appellants' books showed they had some $38,000 worth of merchandise on hand, at which time they had only $3,500 insurance on merchandise and $3,000 on fixtures. Between the first of January and the time of the fire they took out additional insurance of $11,000 on merchandise and $2,000 on fixtures, a total new insurance of $13,000. There seems to have been no contention during the trial that appellants were over-insured upon fixtures. At the time of the fire the total insurance on merchandise was $14,500. The lowest estimate of the value of the merchandise at the time of the fire was shown by the testimony of one of the insurance adjusters which is epitomized in this statement by him:

"The total, as shown by the memorandum and other information I obtained there of the stock on the day before the fire in my opinion is about $20,000."

In this estimate the value of the goods in the back room was not included. Taking the books of appellants as to the value of the goods on hand January 1st, together with the sales and purchases since that date, they show that they had on hand at the time of the fire some $33,000 worth. If the estimate of the insurance adjuster that $20,000 was the value of the goods in the main store be taken, (disregarding the value of the merchandise in the back room) the $14,500 insurance on merchandise would still leave appellants unprotected in the amount of $5,500. If the book value of $33,000 be taken they were unprotected in the amount of $18,500. All of the evidence shows that on the first of January appellants were greatly under-insured on merchandise and while the increase of insurance between then and the time of the fire may be regarded by the State as a suspicious circumstance it is not inconsistent with the theory that they would have used poor business judgment not to have increased the insurance. We have searched the record to ascertain if possible whether appellants were dissatisfied with the business they were doing between January 1st and March 10th. We have found no expressions attributed to either of them indicating this. The only evidence throwing light upon it is that since the first of January their purchases amounted to $1,272.39 and their sales during that time amounted to $5,617.92. There is nothing in the record showing the "overhead" expense incident to conducting the business. No legitimate conclusion can be drawn from the evidence that appellants were seeking to liquidate their business by employing the method of burning it out and collecting the insurance.

Some importance seems to have been attached to the fact that some six days before the fire the services of the night watchman who had been employed by appellants for some time prior thereto had been dispensed with. In our original opinion we referred to the severing of the relations between the night watchman and appellants as "The discharge recently before the fire of the only man who slept in the building. * * *." It is pointed out in appellants' motion for rehearing that the transaction in which the night watchman's services were dispensed with can not properly be regarded as a discharge of him by appellants. It appears from the statement of facts that Posil had found the night watchman (Trost) asleep on one or two occasions. The testimony of Trost himself as to what occurred at the time his services as night watchman were dispensed with is as follows:

"I had been employed by them (appellants) as watchman down at what is known as the Golden Rule Store. I quit there March 4th.I quit the fourth and the fire started on Monday morning, the10th. I quit a week before the morning of the fire. * * * He (Posil) said that 'we will have to get the janitor for the job if you are not on the job.' I spoke up and says, 'I quit. I can't work all day and all night, that is too much of a strain on a person.' He said, 'All right, quit'."

We do not think from the foregoing that the inference can be drawn that appellants had discharged the night watchman in order to give them an opportunity to carry out an intention to burn the store. Trost seems to have quit his job because he was criticized by one of the appellants for his lack of diligence as a watchman. There appears to be no foundation for just criticism of appellants for letting Trost go as a watchman, nor for regarding this as a criminative fact against them.

At the time our original opinion was written we were under the impression that appellants claimed the night of the fire that the store had been burglarized and set on fire to prevent the discovery of the act. We were in error in this regard. The evidence shows that when asked by the fire chief (Mr. Ray) the night of the fire as to their opinion of its origin appellants stated they did not know. The next day some suggestion was made by one of them that probably the store had been burglarized and attention was called to some grips on top of a show window. On examination these grips were found to be packed with shirts and other articles of wearing apparel. Upon closer analysis of this testimony we fail to see the cogency of it as a criminative fact against appellants. The evidence shows that burglary was not uncommon and that efforts had been made to enter the store while Trost was on duty as watchman there.

If it be conceded that the facts raise a strong suspicion that appellants may be guilty, yet this does not meet the requirements of the law, for, where circumstantial evidence is relied on wholly the circumstances must exclude every other reasonable hypothesis except that of appellant's guilt, and must go further than raising a probability or suspicion. Pogue v. State, 12 Texas Ct. App. 283[12 Tex. Crim. 283]; Hogan v. State, 13 Texas Ct. App. 319[13 Tex. Crim. 319]; Kunde v. State, 22 Texas Crim. App., 99, 3 S.W. 325; Gay v. State, 42 Tex. Crim. 450, 60 S.W. 771; Hernandez v. State,72 S.W. 840; Brown v. State, 150 S.W. 436.

In determining the sufficiency of the evidence we have considered only that which could be criminative in its nature. If we consider that introduced by appellants it raises a strong case of alibi. The testimony shows that both appellants with their wives attended a party at a neighbor's on the night of the fire; that about ten o'clock the daughter of Posil called him over the phone at the neighbor's requesting him to come and assist in getting her automobile started. Posil went with Jaffe in the latter's car to the point where Posil's daughter was. It was on this trip they passed the store and according to their evidence turned the light out in the show window. After some delay they got the Posil car started but for fear Miss Posil might have further difficulty with it they followed her in the Jaffe car to the Posil home. Here they went in the house and washed their hands and then returned to the party, having been gone from three quarters of an hour to an hour: They finally left the party some time after twelve o'clock. Up to this point their whereabouts seems to be accounted for by disinterested parties. They reached their homes about 12:20. The fire was discovered at 1:30. The whereabouts of each of appellants during this hour and ten minutes is accounted for only by their own testimony and that of their wives which places them at home where they were notified by telephone that the store was on fire. According to the testimony of the fire chief and others it was their opinion the fire had been burning about thirty minutes when discovered. This would have given appellants only thirty or forty minutes to come to the store, set the fire and return to their homes. Of course the jury was not compelled to accept the testimony of appellants or their wives, but all the evidence taken together leaves the more reasonable conclusion to be that if appellants were in any way connected with the fire or had knowledge thereof that the fire was actually started by someone else rather than by either of them.

We are always loath to disturb the verdict of a jury but we have been convinced upon a re-examination of the record that the evidence in the present case does not measure up to the certainty required in cases dependent wholly upon circumstantial evidence. We believe our duty demands the setting aside of the former order affirming the judgment and that the cause be now reversed and remanded for a new trial, and it is so ordered.

Reversed and remanded.