People v. Miller

WOOD, J.

Defendant was charged in count I of the information with the crime of arson and in count II with the crime of burning insured property with intent to defraud the insurer. Both charges were founded upon the burning on September 5,1939, of the drug store operated by defendant at 302 South Main Street in the city of Los Angeles. The drug store was part of the building used as a “dwelling-house”. The second count charged the felonious burning of the merchandise on stock in the drug store. A jury having been waived, the action was tried before the court and defendant was found guilty on count I and not guilty on count II. He prosecutes this appeal from the judgment of conviction and from the order denying his motion for a new trial.

Defendant contends that the evidence is insufficient to support the judgment. In the store in question there was a front room, where merchandise was sold and business generally transacted; back of this room was a prescription room, adjoining which was a room referred to in the evidence as the surgical fitting room; a hallway led from the prescription room to the rear of the building. Defendant locked the store and went home early in the morning of the fire, no other person being in the store at the time. At about 3:30 A. M. the owner of the hotel over and adjoining the drug store was awakened by a guest and was informed that the burglar alarm was ringing in the drug store. He leaned out the window, concluded that there was a fire in the drug store premises and called the fire department. The firemen responded promptly, broke in to the premises and in five minutes put out the fire with water. Captain Cordell of the fire

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department testified that he discovered a fire in a carton of rubbish in one of the rooms, which he called the "stock” room, and also discovered a fire in the surgical fitting room. He testified: "Prom there I entered into what is marked here on this diagram, ‘Surgical fitting room’; this was involved in fire. Across the top of the surgical table, as according to this diagram, along on the ledge of the window in the rear, was some combustible materials which I took to be records, sales slips and things of record of the business there”. The Court: "Were they burning, Captain?” "A. Yes, they were burning. And to the right there is a cupboard, as indicated on this drawing. There was a fire in the cupboard, and on top of the cupboard, and extended back toward the door, within an approximation of 4 feet from the door.” The officer further testified that there was no connection between these fires and that the substance that was burning inside the cupboard "was not in keeping with an ordinary fire”; that there was a clear blue flame without any appreciable amount of smoke. Officer Wiesinger of the police arson squad testified that he arrived at the scene of the fire about fifty-five minutes after it had been extinguished; that he found piles of empty cartons a few inches from the remains of the fire; that there were three separate fires in the premises.