People v. Clagg

CONLEY, P. J.

The defendant was convicted of arson (Pen. Code, § 447a), the indictment charging that defendant did “. . . on or about the 25th day of December, A. D. 1960 . . . willfully, unlawfully, feloniously and maliciously set fire to and burn the dwelling house building at number 349 South Magnolia Street, in the City of Woodlake.”

The defendant raises two points on appeal, claiming (1) that the evidence did not justify the conviction, and (2) that the trial court committed error in receiving the testimony of his “wife,” Wilma Gertrude Clagg, who had entered into a marriage ceremony with him which the trial court held to be absolutely void, by reason of the fact that her final decree of divorce from a previous husband had not then been entered.

Early on Christmas morning in 1960 a fire broke out in the dwelling house occupied at that time solely by the defendant. Mrs. Clagg was not living at the home for the reason that there had been extensive difficulties between them which had resulted in their separation two weeks previously. On several occasions appellant had threatened that if a separation took place she would not get anything out of the house and that he would burn everything in it. He also had told her that if she did not destroy a power of attorney which he had given her he would break up and burn everything in the house. The defendant had spent a large part of the previous day drinking in local taverns, and he had told the witness James F. Jackson

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that Wilma Clagg had sworn out a warrant for the arrest of his mother and that “. . . he was going to fix her or have her arrested or something to that effect.”

Appellant arrived at the house at about 11:30 p.m. on the night preceding the fire and remained there until the fire broke out, when he got into his truck, and instead of telephoning the fire department from a neighbor’s home or going directly to the fire station, which was only two blocks north of his house, he drove a considerable distance to report the occurrence to a police officer. At the scene he told Officer Mayfield that he had lost everything in the fire, including a television set and sewing machine, although he had previously delivered the sewing machine to one James F. McFarland as collateral on a $100 loan. Most of the furniture in the house had been purchased by Wilma Clagg before the marriage, or had been obtained as a result of trading furniture which had belonged to her. The defendant testified that he had given her a power of attorney “to everything we own” and that she was thereby authorized “to take everything we own except the clothes on my back or anything she wanted if I violated my marriage vows.”