Colbert v. State

• Decision Date: 23 June 1905
• Citation: 125 Wis. 423,104 N.W. 61
• Parties: COLBERT v. STATE.
• Court: Wisconsin Supreme Court

125 Wis. 423

104 N.W. 61

COLBERT

v.STATE.

Supreme Court of Wisconsin.

June 23, 1905.

Error to Circuit Court, Outagamie County; John Goodland, Judge.

Lucille Colbert was convicted of arson, and she brings error. Reversed.

The plaintiff in error was prosecuted and convicted of the crime of arson, and brings writ of error.

At about 4:40 o'clock on the morning of July 11, 1902, a small frame building occupied by the plaintiff in error (hereafter called the “defendant”) as a millinery store and residence on the principal street of the village of Welcome (formerly Bear Creek), in Outagamie county, was found to be on fire, and the building, with its entire contents, was totally destroyed, the fire spreading and causing the destruction of a number of other frame buildings; among them being the residence of one Thorn. The defendant had left the building a few minutes before the fire, and gone to the railroad station, which was just across the street, where she expected to take a train due at 4:43 for New London, Wis., having purchased her ticket and checked her trunk on the preceding day. The fire was discovered while she was waiting for the train at the station, and she returned to the building, protesting that there was no fire in it when she left, and that she had not even lighted a match in it that morning. The fire was also communicated to the railroad station building, and her trunk, with its contents, was destroyed. The defendant had insurance on her stock to the amount of $200, and upon her household goods to the amount of $100. The value of these articles was in some dispute, but the aggregate value did not materially exceed the insurance thereon, if in fact it equaled the insurance. She afterwards settled with the insurance companies for about $250. The defendant was a widow about 60 years of age. Her maiden name was Lucille, or Lucie, or Lucinda La Duc. Her first husband, to whom she was married in the year 1858, was named La Blanc or La Blanche. By him she had five adult children, none of whom were living with her at the time of the fire, nor for some years before. La Blanc died in 1892, after which defendant supported herself by her own efforts, and married one Colbert in 1899, who died very soon after the marriage, leaving no children. The defendant commenced the millinery business in Welcome in the year 1901, was burned out without any insurance in April, 1902, but saved about $200 worth of goods and re-established the business. After settling with the insurance companies, she engaged in the millinery business in New London. She filed a claim with the railroad company for the loss of her trunk and contents, but it was not paid, and thereafter she brought suit against the company for damages for the destruction of the trunk. The present prosecution was not commenced till some time after the fire. The defendant was a witness upon the trial, and strenuously denied all knowledge of the origin of the fire.J. E. Lehr (Pierce & Lehr, A. M. Spencer, and Maurice McKenna, of counsel), for plaintiff in error.

L. M. Sturdevant, Atty. Gen., Walter D. Corrigan, Asst. Atty. Gen., and F. M. Wilcox, Dist. Atty., for the State.

WINSLOW, J. (after stating the facts)

The assignments of error are numerous. Those which seem necessary to be considered in order to guide the trial court upon a new trial will be considered in their order.

1. At the opening of the trial the late Lyman E. Barnes, of Appleton, appeared as an attorney assisting Mr. Wilcox, the district attorney, in the prosecution, and objection was made to his participation in the trial, based on affidavits tending to show on information and belief that he was the general attorney for the Chicago & Northwestern Railway Company at Appleton, and was employed by that company to prosecute this action in order to defeat Mrs. Colbert's claim against the company for the loss of her trunk. No order had at this time been entered on the minutes appointing Mr. Barnes to assist the district attorney. Mr. Barnes was then sworn, and stated that he was asked by Mr. Wilcox to assist in the prosecution of the case at the preceding April term of the court, and that he was then verbally appointed in open court; that he was local attorney of the Chicago & Northwestern Railway, but that no one connected with the company ever communicated with him about the case, or employed him, and that he was getting no pay from that company; that he knew nothing about the baggage suit, and never heard of it until that moment; and that he expected his pay from Outagamie county alone, and no one else. Upon this showing the trial court directed that an entry be made upon the minutes of the court that Lyman E. Barnes “is appointed by the court, at the request of the district attorney, to assist him in prosecuting the case,” and that the minutes should further show that the appointment had been made verbally by the court in the latter part of April, 1903. Exception was taken to this order, and this is the first alleged error to be considered. This order was made under the power granted by section 750, Rev. St. 1898, which provides that in certain specified cases, such as the absence or disqualification of a district attorney and other cases, the trial court may, by order entered in the minutes, “stating the cause therefor,” appoint a suitable person to act as district attorney for the time being. The section then provides that the court may “in the same manner and in their discretion appoint counsel to assist the district attorney in the prosecution of criminal cases.” The appointment here was made under the second subdivision of the section, and the first claim is that the order is erroneous, because it does not state the cause. Whether such an omission would be good cause for reversing a conviction in any case may be justly doubted, but, in any event, we do not consider that the words “in the same manner” require the statement of the cause, but simply require that the order be entered in the minutes as an order appointing a district attorney pro tem. is entered. Mr. Barnes' testimony, which in its essential statements was undisputed, showed that he was unprejudiced, and not under any other retainer in the case, and hence his appointment was within the discretion of the trial court. French v. State, 93 Wis. 325, 67 N. W. 706.

2. The information contained three counts. The first count charged, in substance, with proper formal averments, that the defendant did in the daytime of July 11, 1902, willfully, maliciously, and feloniously set fire to and burn one certain frame building, the property of one Mary M. Dempsey, occupied by the defendant as tenant, by the firing and burning of which the dwelling house of one Thorn (the location of the house being fully set forth), the said Thorn being the owner and occupant of the house, and one Ballhorn being the owner of the lot on which it stood, was willfully, maliciously, and feloniously set on fire and burnt. The second count charged the willful, malicious, and felonious burning in the daytime of the frame building in which the fire originated; and the third count charged the willful, malicious, and felonious burning of the same building in the daytime, and that it was then occupied by the defendant as a dwelling house. Before the pleading to the information, motions were made by the defendant to compel the state to elect on which count it would proceed; also to quash each separate count of the information; all of which motions were overruled, leave being given to the defendant to renew the motion to require an election at a subsequent stage of the trial. At the close of the state's case the district attorney was allowed, against objection, to amend the first count of the information, and then elect to proceed upon that count as amended. In these rulings we have found no error. The matter of requiring an election was within the sound discretion of the trial court. The various counts all plainly referred to the same act, and there was nothing in them tending to mislead or embarrass the defense or distract the attention of the jury. Furthermore, all the evidence received was equally as applicable to the first count as to the second or third; hence there was no error in not requiring an election at the outset. The second and third counts having dropped out of the case, there is no necessity to consider the question of their sufficiency. The amendments to the first count were not substantial, but simply added greater detail to the descriptions of the two buildings, which we do not regard as essential for the reason that the count as originally framed sufficiently charged the crime of arson under the second clause of section 4400, Rev. St. 1898, which punishes the willful and malicious setting fire to any building by the burning whereof the dwelling house of another shall be burned in the daytime.

3. At the close of the state's case the defendant moved that a verdict of “not guilty” be directed for failure of proof. This motion was overruled, and this ruling is assigned as error. No argument is made by the defendant in this court upon the general proposition that the facts in evidence would not justify a finding that the defendant willfully set the fire, but it is argued that the dwelling of Thorn was so far removed from the building where the fire originated that malice cannot be imputed to the defendant. It appears that the Thorn building was between 70 and 80 feet distant from the store building of the defendant, with two buildings and three narrow alleys intervening. The difficulty with the argument is plain upon examination of the statute. The statute only requires that the first building shall be maliciously and willfully set on fire and that by the burning thereof the dwelling of another shall be burned. It is not required that the malicious intent to burn the dwelling house shall exist.

4. It appeared by the evidence that on the 19th...