People v. Gentekos

ARCHBALD, J.,

pro tem.

This is an appeal by the defendant from judgments of conviction after verdicts of guilty on two counts of an information charging arson and burning of insured property, respectively, and from an order denying a motion for new trial.

Defendant was charged with arson, in count one, and in count two with the burning of insured property. The first count was amended before trial, by order of the court and at the request of the district attorney, to charge wilful and malicious burning of property under section 448a of the Penal Code; and the second count, which read “did wilfully, unlawfully and feloniously burn”, etc., was amended by inserting the word “maliciously” after the word “unlawfully”, and the words “set fire to and” after the word “feloniously”. The jury returned a verdict of guilty on each count. Motion for new trial was made and denied. The court, however, announced in so doing that as to the second count there was no evidence that any “insured property” was burned, and that the court as to such count would “upon passing judgment modify the judgment” so as to show “attempt” to commit the crime charged. The record before us does not disclose that such was in fact done, as the judgment of conviction actually pronounced, as shown by

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such record, is based on the charge in the information and the verdict as returned thereon, viz., “burning insured property, a felony”.

Appellant contends that the court erred (1) in admitting certain evidence, (2) .in excluding certain of defendant’s evidence, (3) in denying defendant’s motion for a directed verdict, (4) in refusing to give certain instructions requested by defendant, (5) in giving certain instructions, (6) in denying defendant’s motion for a new trial, and also urges (7) that the verdicts are not supported by the evidence.

It appears from the evidence that defendant operated a small restaurant on East 8th Street, Los Angeles, in which fire broke out at about 10:30 P. M. on January 24, 1931. The firemen responding to the alarm found both front and rear doors locked, and on breaking in found the door between the kitchen and the rear hallway open and a fire burning near the east wall of the kitchen, which was back of the room where the meals were served and at the rear of the building. This fire apparently originated at the spot where it was burning, and in its debris was found a broken drinking glass which had evidently contained alcohol and a rag saturated therewith. Between the counter and the shelving in the front room of the place, about twenty-five feet from the site of the fire in the kitchen, there was discovered an arson “plant”, reaching from the floor to about the level of the counters, consisting of a paper bag on the floor with a burning tallow candle in the center of it, surrounded by “a number of boxes, paper, etc., crumpled up newspapers, and over the whole thing was a couple of table-cloths or table-covers. There were also four glasses containing alcohol ’ ’ located at the four corners of the “plant”. The defendant was found in his room a short distance from the restaurant. He told the officers that he had closed the restaurant at about 5 P. M. that day and went to visit a friend, returning alone to the restaurant at about 8 P. M. for the purpose of using the toilet and hiding ten dollars in currency he had left there; that he turned on the lights when he entered and then turned them off for about ten minutes while he was hiding the money; that he locked the door and then left. At the trial he testified that he returned to the restaurant as he did for the purpose of making some sandwiches to take on a hunting trip he intended to make the next day