Woodruff v. Superior Court

KATZ, J. pro tem.

*

This is a petition for writ of prohibition to restrain further proceedings in a criminal prosecution for murder. Petitioner was named defendant in a complaint filed in the municipal court charging the crimes of murder and arson. After a preliminary hearing in that court, he was held to answer both charges, and an information was filed in the superior court. Count I of the information accuses petitioner of the crime of murder and Count II accuses him of the malicious burning of real property. Petitioner contends

[750]

that he was committed without reasonable or probable cause with reference to the murder charge in Count I.

The transcript of the preliminary hearing shows that petitioner was the owner of a cafe which had been operating at a financial loss and which was insured against loss by fire. On October 24, 1964, a fire of incendiary origin, caused by flammable liquid, occurred in the cafe. Petitioner was not present at the time. It appears that Gary Sutlovich, a friend of petitioner, started the fire with gasoline and in so doing suffered such severe burns that he died therefrom a few days later. There was also evidence from which it could be inferred that petitioner procured Sutlovich to burn the cafe, or otherwise conspired with him, and aided in the preparations for the fire.

The question presented is whether a person who aids, counsels or procures another to maliciously set fire to a building, but who is not physically present at the scene of the arson, is guilty of murder when his confederate negligently or accidentally burns himself to death while setting the fire. The question has been answered previously in the negative by the Supreme Court in

People

v.

Ferlin,

203 Cal. 587, 597 [265 P. 230],

1

wherein the facts were practically identical to those in the present case. In holding the felony-murder rule

2

to be inapplicable, the court referred to the statutory definition of murder,