Frederick v. State
| Decision Date | 20 June 1960 |
| Docket Number | No. 29789,29789 |
| Citation | 240 Ind. 598,167 N.E.2d 879 |
| Parties | Paul J. FREDERICK, Sr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Richard Sproull, Charles E. Hughes, F. LeRoy Wiltrout, Elkhart, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, Richard M. Givan, Asst. Atty. Gen., John A. Pushor, Deputy Atty. Gen., for appellee.
Appellant was charged with second degree arson and was found guilty after a trial by jury which returned with their verdict a recommendation for a suspended sentence. Appellant was sentenced for an indeterminate term of one to ten years.
Error is assigned in overruling the motion for new trial which among other things asserted the verdict was not sustained by sufficient evidence and was contrary to law.
Appellant contends that there is no evidence or inferences supporting the verdict from which the jury could have found that appellant set fire to and burned the building, which he is charged with doing in the affidavit.
The building in question was of cement block and wood construction and was located west of the city of Elkhart, Indiana, on U.S. Highway 33. At the time of the fire it was owned by appellant's wife and was occupied by the K & N Paint Shop for the purpose of painting trailers and mobile homes.
The building had been constructed by appellant, who was in the construction business, for the use of a sewing machine company which occupied the building for some months but failed to pay its rent. Appellant and wife had executed a mortgage in the sum of $8,000 on the property with the understanding that the rent received from the sewing machine company would be applied on the mortgage. On failure to make payments on the mortgage, a foreclosure suit was brought which was pending at the time of the fire.
It further appeared that three fire insurance policies on the property totalling $21,000 were in force at the time of the fire. The property was estimated to be worth from $12,000 to $20,000. The fire damage came to $3,400, and appellant's wife after the fire sold the property, and the revenue stamps indicated a maximum consideration of $10,000.
Prior to the fire there had been a recommendation by fire officials that the furnace in the building be properly enclosed, or placed outside as paint shops were considered hazardous. The furnace had never been used.
The day before the fire three of appellant's construction employees started to build a partition around the furnace. Appellant's construction company ordered 200 gallons of oil delivered to the K & N Paint Shop that day, and when the tenants asked who was to pay for it, appellant stated he would. Appellant stated he got the oil to start the furnace and see if it was in running order. Partner Neal of the paint company said the company expected to pay for the fuel oil and couldn't understand when appellant said he would pay for it. During the afternoon the paint shop tenants expressed dissatisfaction with the way the furnace enclosure was being constructed and after a discussion appellant agreed to put the furnace outside. Concrete was then poured outside the building for the outside furnace room.
Evidence as to appellant's whereabouts on the night (September 20) before the fire, was introduced by the State, to the effect that appellant told a state police officer he left his shop at 4:00 or 5:00 p. m. and had supper at home with his wife, his son and the son's wife. That after supper his son and the two wives went to the Hump Restaurant leaving a small child with him at the house. Abut 11:00 p. m. they came home, and on going to the bathroom found water was squirting onto the floor from a broken copper tube in the toilet. That appellant and his son drove to the construction company, got a length of pipe, that they drove by the K & N Paint Shop to check the slab of cement, but neither got out of the car; that they went to a tavern to look for one of their employees, that appellant got a six pack of beer and drove directly home, arriving according to the son about midnight; that appellant was at his home until notified of the fire at 8:00 o'clock in the morning.
Evidence as to the time of the fire from the fire department was that they received a call about 1:45 a. m. on September 21, that there was a smell of oil burning on U. S. Highway 33 west, but it was foggy and no fire was discovered; that at 3:15 a. m. the fire department received another call for the K & N Paint Shop, and drove out and extinguished the fire.
There was evidence the fire was of an incendiary origin, to-wit: A device connected to the electric light circuit and containing four carbon rods wired together similar...
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