People v. Fournier

TEMPLE, J. The defendant was charged, under section 548 of the Penal Code, with the offense of willfully destroying by fire a certain building, with the intent to defraud the Palatine Insurance Company, Limited, of Manchester, England, a corporation, in which company the property was then insured. A fire occurred in the town of Madera on the 27th of July, 1895, in which several buildings were consumed, one of which belonged to the defendant, and was insured for the sum of $600. The witnesses all agreed that the fire commenced either in the building occupied by the Tribune newspaper, between which and the defendant’s building there was a space of eight feet, or somewhere along the line of a fence running northerly from the rear of the Tribune building some twenty feet to a shed adjacent to the dwelling occupied by the defendant and his wife. The defendant did not own the land upon which the building was, but occupied the same under a lease, and had built a small wooden house on the southeast corner of the lot, which he occupied as a saloon. On the rear of the lot, and some forty feet from the saloon, northerly, was the dwelling spoken of. Some of the witnesses—and apparently those who were first at the fire—testified that when first discovered by them it was immediately in the rear of the Tribune building, back of which was a little porch; others, that when they saw it it was upon the fence mentioned, and was spreading rapidly along the fence from the dwelling occupied by the defendant toward the Tribune building. The fence partly divided the lot occupied by the defendant from the lot upon which the Tribune building was situated. The evidence that the fire was of incendiary character, and tending to cast suspicion upon the defendant, was entirely circumstantial. That which tended to show that the fire was of an incendiary character, [622]aside from that which cast suspicion upon the defendant, was the testimony of some of the witnesses that the fire was proceeding along the fence from the dwelling of the defendant to the Tribune building rapidly, indicating that the fence might have been saturated with coal-oil, and that they perceived the odor of coal-oil.

The evidence which tended especially to raise a suspicion against the defendant was simply and only: (1) That he was a Frenchman, and had announced his intention of soon returning to France, and that he had an insurance upon the building, as stated. (2) On the very day of the fire he removed from the saloon to his dwelling a barrel of brandy and two cases of champagne. And (3) he and his wife were, shortly before the fire, sitting on the sidewalk by the saloon. The fire occurred shortly before midnight, and defendant and his wife claimed that they were both in bed at the time the alarm was given. The fire occurred in the middle of summer, and it appeared that in the rear of the printing office, which was first on fire, there was a great deal of rubbish, consisting of old rags, paper, straw, etc. A witness for the prosecution, who occupied one of the houses destroyed, testified that she was awakened during the night by mosquitoes, and immediately smelled fire, as of burning rags. She looked from her window, and saw the fire. She thought it was back of the Tribune office, nearer the office than the fence; and finally she stated that she was sure that it was under the porch, back of the Tribune building. On cross-examination the witness was asked as to the condition of the premises—whether there was anything on the ground in the shape of rubbish, paper or anything of the kind. The question was objected to as incompetent, immaterial and irrelevant, and not cross-examination, and the objection was sustained. On like objection the court refused to permit an answer to the question whether at other times she had not perceived- the odor of coal-oil upon the premises, and the court ' also refused to permit the question whether, on the day before the fire, there had not been a pile of rubbish on fire, back of the Tribune office. These rulings were assigned as error here, and the attorney general hardly attempts a defense of them.