People v. Peloian

[97]

NOURSE, J.

The defendant was tried upon an information in two counts, the first charging arson and the second charging “burning insured property.” The jury returned a verdict of guilty on both counts, but the trial court granted defendant’s motion for a new trial on count one. From the order denying his motion for a new trial on count two, and from the judgment of conviction the defendant has appealed ón a typewritten record.

On the night of January 31, 1928, a house situated in the city of Fresno was partially damaged by fire. The property was jointly owned by defendant’s wife, in her separate right, and by her two minor children by a former marriage. For some time prior to the fire it had been managed solely by the wife of defendant, who had covered it with two policies of fire insurance in the sum of two thousand dollars each. The property was unoccupied at the time of the fire, but when the firemen arrived at the scene they discovered that coal-oil had been sprinkled upon the walls and floors of the house and that candles had been placed in various rooms, all of which tended to convince them that the fire was of incendiary origin. Upon investigation a five-gallon can containing some coal-oil was found. This can bore a yellow label, partially torn, the remaining portions of which were found inside the rear door of defendant’s store. It was also shown that defendant carried coal-oil for sale at his store and that he had a Ford truck for delivery purposes which had four new Fisk tires corresponding to fresh automobile tracks found in the alley behind the burned property. The state also showed that certain paper wrappers found at the fire had been delivered to the defendant’s store on January 19, preceding the fire.

This is all the evidence upon which the state relies as connecting defendant with the commission of the crime. It is the contention of appellant on this appeal that it is insufficient to support the verdict, that it merely creates a suspicion that the appellant, or one of his clerks could have, or might have, committed the crime, and that this suspicion rests entirely upon the fact that they had access to the coal-oil and cartons in the store and to the key to a Ford automobile which could have made the tracks observed near the burned building. But we should add, not for the pur