People v. Barbera

CONREY, P. J.

The defendant appeals from the judgment and from an order denying his motion for a new trial.

The defendant and one -Salvatore Turco were jointly indicted and accused of the crime of burning and destroying property insured. It was charged that the defendants, at a stated time and place, did willfully, etc., burn, injure, and destroy certain property, to wit, a certain store building situate as described in the city of Los Angeles, which said property was then and there insured against loss and damage by fire in the London Assurance Corporation, with the intent then and there and thereby to defraud and prejudice the insurer. This defendant demurred upon several grounds, one being that the facts stated did not constitute a public offense, and another being that the indictment was not direct and

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certain with respect to the offense charged, and that it did not, with sufficient particularity to constitute a complete offense, state the circumstances thereof. The defect claimed and upon which appellant relies is the omission to state in the indictment the name of the person to whom the property belonged, or who was the beneficiary of the insurance:

This prosecution was not for the crime of arson. It was that defendants committed the crime defined in section 548 of the Penal Code, as follows: “Every person who willfully burns, or in any other manner injures or destroys any property which is at the time insured against loss or damage by fire or by any other casualty, with intent to defraud or prejudice the insurer, whether the same be the property of or in possession of such person, or of any other, is punishable by imprisonment in the state prison not less than one nor more than ten years.” In a prosecution for this offense the defendant might be guilty even if the property belonged to himself, and a statement of the fact that the property burned was property of any particular person is not essential to a complete description of the offense. The essential facts are that the property was insured against such loss, and that the defendant burned or otherwise injured or destroyed the property with intent to defraud or prejudice the insurer. The question of ownership would arise only as a matter of evidence for the purpose of showing that the person in whose favor the policy had been issued had an insurable interest in the property described in the policy. The order overruling the demurrer was not erroneous.