People v. Agrusa

LANGDON, P. J.

This is an appeal by the defendant from a judgment of conviction of the crime of arson. Defendant was charged with willfully, unlawfully, feloniously and maliciously, on January 23, 1918, in the night-time of said day, setting fire to and burning and causing to be burned that certain inhabited structure, building, and dwelling-house of. one Albert J. Nymand, known and desig? nated as No. 607 Vallejo Street, situated in the city and county of San Francisco, and with the felonious intent then, there, and thereby to destroy the same, the said structure, building, and dwelling-house, as aforesaid, being then and there actually occupied and inhabited by human beings. Defendant pleaded not guilty and upon the trial it was shown:

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That defendant conducted a musical instrument store in the premises at 607 Vallejo Street. This was a three-story frame building, on the first floor of which was the store of defendant and the upper two stories of which building were occupied by lodgers. The fire occurred about 2 o’clock in the morning, and was plainly of incendiary origin. The cause of the fire was apparent from the testimony of the fire chief and his assistants and the policemen on duty in the neighborhood, all of whom arrived upon the scene within a few moments after an explosion had blown out the front window of the store. They found several hat boxes upon the floor about four feet apart in a line. These boxes contained gasoline, and the flames were springing up in a straight line directly from these receptacles. Some of these containers were introduced in evidence, as were also pictures showing the condition of the premises after the fire. The officers broke open the door of the building and were obliged to send for reinforcements to get the lodgers out of the building. The defendant was notified by a police officer of the fire at his store, and he came to the premises while the firemen and police officers were there. He was questioned by the fire chief and by the police officer and he stated, according to their testimony, that he was the only person who had a key to the store. The prosecution introduced testimony to the effect that the value of the musical instruments, fixtures, etc., in the store was approximately twelve hundred dollars. The contents of the store was insured for two thousand dollars.

Appellant’s principal objection is that no proof was offered as to the ownership of the building, and that “the evidence shows that, for the purpose 'of this ease, the appellant Tony Agrusa was the owner of 607 Vallejo Street ; that 607 Vallejo Street was a musical instrument store and not an inhabited structure, building, and dwelling-house.” Section 452 of the Penal Code provides: “To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof.”