People v. Furgerson

COUGHLIN, J.

The defendant was charged with the offense of arson, as defined by section 448a of the Penal Code, and of burning insured property with intent to defraud the insurer thereof, i.e., a violation of section 450a of the Penal Code; was tried by a jury; was convicted of both offenses; was placed on probation; moved for a new trial, which was denied; and appeals from the judgment of conviction and the order denying his motion for a new trial. Such an order is not appealable and the attempted appeal therefrom should be dismissed. (Pen. Code, § 1237.)

The claimed grounds for reversal are:

1. That the evidence is insufficient to establish that the defendant set the fire in question;

2. That the court erred in admitting evidence that the defendant had collected on other fire insurance claims;

3. That the district attorney was guilty of bad faith and prejudicial misconduct in asking a question of the defendant as to which the latter’s objection was sustained.

[389]

The defendant was the operator of a food market, and the insured under a policy of fire insurance in the sum of $15,000 covering his equipment, in the sum of $14,000 covering his stock in trade, and in the sum of $1,500 covering business interruption. On May 3, 1961, after closing hours, a fire of incendiary origin broke out within his store, causing substantial damage.

The defendant concedes the incendiary nature of this fire but contends that he was not the person who set the same. This contention is without merit. There was substantial evidence establishing that the defendant closed the store and left for home about 8:15 o’clock on the evening in question; that no one was present therein at the time he left; that all of the doors were either nailed, bolted or locked shut; that, from the nature of the fire and the condition of all available means of entry at the time the firemen arrived, it may be inferred that no one entered or left the store after the defendant departed; that the fire started between 15 and 30 minutes after he had left; that the preparations for setting the fire were extensive and would have taken more time than this period allowed; and that candles were used as wicks to ignite inflammatory material which had been deposited on the floor close to where the fire started and thus provided a delayed ignition. There also was evidence which showed that the defendant had depleted his stock; had been using capital from outside sources to finance the operation of his business; after giving notice of his intention to vacate the premises, had asked for an extension of time in this regard; and his principal existing investment was in his fixtures and equipment, which would have to be moved; all of which indicate that his business was unsuccessful and furnished a motive for setting the fire and collecting upon his insurance. (Generally see