People v. Folsom

BROWN (Gerald), J. Defendant appeals from a judgment convicting him on two counts: (1) burning personal property with intent to defraud an insurer (Pen. Code, § 450a); and (2) presenting a false or fraudulent insurance claim (Ins. Code, § 556, subd. (a)).

In the same trial defendant’s brother-in-law, Virgil Garrett, was convicted of violating Penal Code, section 450a and Insurance Code, section 556, subdivision (b) ; he has not pursued an appeal.

[811]In the late afternoon of December 17, 1961, defendant and Garrett were the sole occupants of defendant’s 1960 Chevrolet Imp ala automobile which burned near Julian, California. Defendant's wife was the assured under a fire insurance policy which excluded all coverage while defendant operated the vehicle, the reason apparently being that defendant’s driver’s license had been suspended. Defendant testified that Garrett was driving at the time the fire originated. Notice of cancellation of the insurance policy had been mailed December 11, to be effective December 22, which was five days after the fire occurred.

While the only witnesses to the fire at the time it started were defendant and Garrett, experts for the People testified the fire started between the front and rear seats, and that a flammable liquid additive was present to encourage the blaze. They concluded the fire could not have started in the engine compartment and any damage in that section resulted from transmitted heat. The defendant and Garrett testified that there was a muffled explosion under the hood as the car was being driven along the road by Garrett, that they stopped the car and sought to extinguish the flames but were unsuccessful as it transmitted to and consumed the balance of the car.

Defendant does not question the sufficiency of the evidence, but bases his appeal on prejudicial misconduct of the district attorney in five particulars: 1) The district attorney commented on defendant’s failure to produce a character witness. Garrett had produced a character witness; the People contend that defendant raised the issue by arguing to the jury that only recently he had come to the San Diego community after spending several years in various branches of military service, that this argument immediately followed a discussion relating to Garrett’s character witness, thus implicitly excusing defendant’s failure to produce a character witness. The complete arguments of counsel in this respect are not presented to us and the excerpts brought to our attention do not clearly support one side or the other. In any event defendant’s objection to the remark prompted the court forthwith to instruct the jurors to disregard it, and they are presumed to have done so. (People v. Caetano, 29 Cal.2d 616, 619-620 [177 P.2d 1].)