Commonwealth v. Kosior

• Citation: 280 Mass. 418,182 N.E. 852
• Parties: COMMONWEALTH v. KOSIOR.
• Decision Date: 27 October 1932
• Court: United States State Supreme Judicial Court of Massachusetts

280 Mass. 418

182 N.E. 852

COMMONWEALTH

v.KOSIOR.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 27, 1932.

Exceptions from Superior Court, Hampshire County; Beaudreau, Judge.

John T. Kosior was convicted of burning his house, barn, and chattels with intent to injure corporations insuring such property against loss or damage by fire, and he brings exceptions.

Exceptions sustained.J. T. Bartlett, Dist. Atty., of Greenfield, for the commonwealth.

D. H. Keedy, of Springfield, and S. J. Vanderlick, of Northampton, for defendant.

LUMMUS, J.

The defendant was convicted upon circumstantial evidence of burning, on December 2, 1931, his house and barn and also chattels, with intent to injure corporations insuring such property against loss or damage by fire. G. L. (Ter. Ed.) c. 266, § 10. His exceptions raise questions of evidence.

[1] 1. There was evidence that the defendant, on the afternoon before the fire, went to the insurance agent, told the agent that he thought the balance due for insurance premiums upon the property in question was $50, and paid the agent that amount. The agent, not knowing the exact amount due, accepted the payment, and gave the defendant a receipt in full. In fact, the amount due was $45.64. The defendant excepted to the exclusion of a question to the defendant, as to whether the defendant knew that he was paying more than was due. This exception must be overruled. The defendant's position, that he had forgotten to bring the bill showing the amount due, and believed that he was paying the correct amount, appeared pretty plainly from his answer to another question. The relevancy of the whole matter was slight. We think that the defendant was not harmed.

2. The commonwealth, as evidence of preparation for a fire, showed that in the barn there was a large quantity of cornstalks. Some of the cornstalks were on common tobacco poles above the driveway of the barn. Witnesses, both for the commonwealth and for the defendant, testified that the cornstalks above the driveway had been there since late October. A witness for the defendant added that these cornstalks had been used until late October in the same barn to cover tobacco in order to prevent the escape of moisture from the tobacco. The defendant offered to show, apparently by the same witness, that there was a practice or custom among tobacco growers to use cornstalks for that purpose. To the exclusion of evidence of such practice or custom the defendant excepted. This exception must be overruled. The defendant already had introduced the direct evidence of the witness showing the innocent purpose for which the cornstalks were actually used, and so far as appears that evidence was uncontradicted. The trial judge was not bound to receive further evidence from the same witness, tending by inference to support what he had already testified positively of his own knowledge. McCooe v. Dighton, Somerset & Swansea Street Railway, 173 Mass. 117, 53 N. E. 133;Sanderson v. Carroll, 238 Mass. 142, 130 N. E. 81;Commonwealth v. Bedrosian, 247 Mass. 573, 142 N. E. 778;Commonwealth v. Sacco, 255 Mass. 369, 441, 151 N. E. 839;Nelson v. Hamlin, 258 Mass. 331, 341, 155 N. E. 18.

[3] 3. The commonwealth introduced evidence that on the day after the fire police officers discovered in the barn, in which fire had broken out and had been extinguished three times during the night, a partly burned candle standing upright in a small box, surrounded by rags which smelled of kerosene. There was no continuous burning from the house to the barn. The commonwealth, over the defendant's exception, was permitted to introduce the testimony of a tenant of the defendant, living in a house situated a few feet from a tobacco barn which was connected with the barn before mentioned, to the effect that about three weeks before the fire the defendant advised her to get good insurance on her furniture and then ‘to take a rag and put kerosene on and put a candle and let it burn and it will be all set by the time you get down to your mother's.’ This evidence was admissible. It tended to show that the defendant was familiar with the very method of setting fires that, according to the evidence, was adopted by some person in setting the fire in question, and thus to identify the defendant with the malefactor. Commonwealth v. Choate, 105 Mass. 451; Wigmore, Evidence (2d Ed.) 413. In Bemis's Report, 89, 98, of the trial of Commonwealth v. Webster, 5 Cush. 295, 52 Ann. Dec. 711, it appears that the full court admitted evidence that the mode of dissection of the body which was adopted by the murderer showed a knowledge of anatomy, the defendant being a professor in a school of medicine. In Costelo v. Crowell, 139 Mass. 588, 2 N. E. 698, where evidence of the plaintiff's ability to forge documents was held inadmissible in a suit upon a note which, the defendant contended, was forged by the plaintiff, no question of identity arose. We need not consider whether the evidence was also admissible as showing a purpose to cause to be burned the neighboring buildings that subsequently were burned. Commonwealth v. Bradford, 126 Mass. 42;Commonwealth v. Leventhal, 236 Mass. 516, 521, 128 N. E. 864;Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452; Wigmore, Evidence (2d Ed.) §§ 102–106.

[4] 4. The commonwealth introduced the testimony of a police officer that on the day after the fire he talked with the defendant about some tobacco which one Carl had purchased from the defendant for delivery on December 7, but which the defendant on the day before the fire moved out from the barn which subsequently burned into another barn. The defendant told the police officer that he moved the tobacco in order to make it more convenient for the truckman, and that the tobacco was not insured against fire. The judge, over the defendant's exception, admitted the testimony of the police officer that he told the defendant that Carl had declared that the defendant, on the day before the fire,...