People v. Rosa

STURTEVANT, J.

The district attorney filed an information against the defendant charging him with having committed the crime of arson. The defendant appeared and pleaded not guilty. The action was tried before the court sitting with a jury. The jury returned a verdict of guilty. The defendant made a motion for a new trial, the motion was denied and judgment was pronounced on the verdict as rendered. The defendant has appealed and has brought up a typewritten record.

The evidence introduced at the trial showed without conflict that about half-past 2 o’clock in the morning on March 18, 1928, St. Joseph’s Catholic Church, located in the town of Mountain View, was destroyed by fire. The fire broke out on the outside of the church under or near the stairs. That fact and other facts introduced by the prosecution showed that the fire was incendiary. As to who set the fire rested on circumstantial evidence. The defendant attempted to prove an alibi, and, in doing so, to account for his movements from Thursday, March 15, 1928, to and including Sunday, March 18, 1928.

The defendant makes several points. We will not discuss all of them. We have examined each point and the record in connection with it. Those points which we do not discuss have not, in our judgment, any merit. We will proceed to discuss the points that seem to have merit.

[503]

(1) The chief of police was called as a witness by the prosecution and was asked if he held a conversation with the defendant shortly after the fire. When he stated that he did have he was asked to state the conversation. The defendant interposed no objection. The witness proceeded: “I asked him, I said, ‘Do you belong to the I. W. W.’ He said, ‘Yes, I do, I am proud of it.’ Mr. Armstrong: We ask that portion be stricken out as not connected with the

res gestae

in this matter whatever organization he belongs to. The Court: The court will allow you to tell the conversation.” As the portion of the conversation was “not connected with the

res geitae

in this matter,” the motion should have been granted. The importance of the ruling appears as we proceed. The witness J. A. Meek delineated a conversation he had with the defendant. In that conversation he asked the defendant where he was on Friday night, two days before the fire. Continuing he stated that the defendant replied that he had listened out of his window to exhortations or speeches of a man connected with the I. W. W. In his argument to the jury the district attorney said: “This boy’s mother, who brought him into the world, now has nothing to do with him since the I. W. W. got hold of him.” The defendant objected and assigned the remark as a misstatement of the evidence and reversible error. The trial court ruled that the jury could determine whether the remark was supported by the testimony. The district attorney continued: “That is not the testimony, that is simply my conclusion.” That conclusion was formed in part at least on the evidence which the trial court refused to strike out. If we are correct in what we have said regarding the soundness of the motion to strike, it follows that the ruling last discussed continued the error.