People v. Savinovich

SHAW, J.

The above-named defendants were jointly charged by information with the crime of arson, in that they, on or about October 2, 1921, willfully, unlawfully, feloniously, and maliciously, in the night-time of said day, set fire to and caused to be burned a certain inhabited building, with the felonious intent to destroy the same, which said building was then and there occupied by human beings. The jury found all of the defendants guilty of arson in the first degree. Judgment of imprisonment in the state prison was thereupon pronounced, and defendants have appealed therefrom and from an order denying their motion for a new trial.

It appears that the defendants owned and conducted a restaurant in the city of El Centro, known as the “San Francisco Grill.” About July 1st defendant Savinovieh left El Centro for Los Angeles, employing Nick Lettunich to act in his stead in the conduct of the business and for which service he individually was to compensate him. About August 20th Lettunich severed his connection with the firm,

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after which it was conducted, in the absence of Savinovich, by defendants Markovich and Rupar, the former still holding his interest in the firm. The fire occurred in the kitchen of the restaurant about 9 o’clock P. M. on October 2, 1921, and a few days thereafter Savinovich, receiving information of the fire, returned to El Centro. Over the restaurant in the second story of the building was a lodging-house, known as the “Panama Rooms,” conducted by Douglas Doty and wife, with whom lived Harvey Buckley, a son of the latter. While there is no evidence that any persons other than the three named were at the time occupants of the building as lodgers, it does appear that, while Mrs. Doty was temporarily absent from the building, they were occupying the same as a home. Mr. Doty, it appears, was in one of the rooms occupied by his family, over the kitchen of the restaurant, when he discovered the fire by noticing smoke coming up through the floor, to which fact he called the attention of young Buckley, who at the time had returned to his room in the building from which he had a few minutes before absented himself.

A number of assignments of error are urged in support of a reversal of the judgment and order, chief among which is the- fact that the court instructed the jury as follows: “If any evidence has been introduced in this case tending to establish a confederation or conspiracy to commit the offense charged in the information, between either of the defendants, then I instruct you that any act or declaration of either confederate in furtherance of the object and purpose of the confederation, is competent evidence against the others, if you believe beyond a reasonable doubt that a conspiracy existed to commit the offense.” It is insisted, first, that there is no evidence, either direct or circumstantial, tending to establish a conspiracy between the defendants to commit the offense, and hence it was error to instruct the jury as to conspiracy; and, second, assuming the existence of such evidence, the instruction was erroneous in that the jury were told that if a conspiracy was formed between any two of the defendants and either of them acted in furtherance of the object and purpose of the conspiracy, such fact was competent evidence against all of the defendants.