Goodin v. Commonwealth

• Decision Date: 26 October 1934
• Citation: 256 Ky. 1,75 S.W.2d 567
• Parties: GOODIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

75 S.W.2d 567

256 Ky. 1

GOODIN v. COMMONWEALTH.

Court of Appeals of Kentucky

October 26, 1934

Appeal from Circuit Court, Boyd County.

John G Goodin was convicted of arson, and he appeals.

Reversed.

Waugh &amp Howerton, of Ashland, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

DRURY Commissioner.

John G. Goodin has appealed from a judgment imposing upon him two years imprisonment for arson.

Goodin owned three five-room cottages on Twenty-ninth street in Ashland, Ky. being numbers 1069, 1073, 1077. These houses were all drenched with kerosene and set on fire by Norma Davis and her husband, Jesse Davis, in the early morning of October 20, 1932. Whether Mr. and Mrs. Davis did this because of some grudge against Goodin or because he had hired them to do so, is sharply disputed. Some one discovered the fire and the alarm was turned in at 4:35 a. m. The fire department responded so promptly and worked so effectively that the fires were extinguished before any great damage had been done to the property.

On March 9, 1933, the grand jury returned an indictment charging John G. Goodin, Mary Myers, Jesse Davis, and Norma Davis with having burned this property pursuant to a conspiracy formed for that purpose.

Mary Myers is a well-to-do woman 52 years of age, her husband is 72 and in poor health. Her son, W. L. Myers, is 27 years of age.

John G. Goodin is a well-to-do man and a passenger conductor on the C. & O. Ry. He and his wife then lived in Louisville but he had a room at the Myers' home and boarded there when in Ashland; his duties on the railway compelling him to spend a part of his time in Louisville and a part of it in Ashland.

Mrs. Myers, her son, W. L. Myers, and the defendant, Goodin, were associated in the conduct of a dry-cleaning establishment known as the Swiss Dry Cleaners, which business was under the active management of W. L. Myers.

Jesse Davis is not much of a social figure, he makes no claim to having any settled occupation, and from this record we gather he is of the submerged type, and that in the Davis home, his wife is not only the provider but is also director of operations or as he expressed it, "She rules the roost." The evidence shows her reputation is bad; that she will lie and steal; that she is a bootlegger; and that she admits firing these houses, but she is a good worker and she was formerly employed at this Swiss dry-cleaning establishment, and had from time to time worked in this Myers' home as a domestic, but not at any time recently.

Her employment during the spring and summer before this fire was at this dry-cleaning establishment where she did repair work and soliciting.

In August, 1932, Mr. W. L. Myers discharged her, which he testifies made her mad and Mrs. Myers testifies Mrs. Davis asked her to get her son to take her back and she refused to do so. Mrs. Myers testified, "She must have been awful mad at me for the dirty things she has been saying about me all over town. Of course, she is mad at everybody, I guess, and wanted to do me dirty." Miss Mary Francis Myers testified Mrs. Davis became very angry at her mother because of this.

While Mrs. Davis was so employed, she and her husband lived in house 1073, which according to Goodin was rented to her furnished, not only with furniture, but that he paid the water, gas, and electric light bills, for which Mrs. Myers and Goodin testify he was paid $30 per month rent by her and that she paid her rent up to August 1, 1932, during which month the Swiss Dry Cleaners discharged her and Goodin says he began to ease her out of the property and Goodin's theory of this fire is that Mrs. Davis set fire to this property to get even with him for refusing to let her have $45 which she desired to use to make a first payment on an automobile, to get revenge for being discharged by the dry-cleaning plant, and to conceal the loss of certain furniture which she had moved out of this house 1073 when Goodin eased her out of it, whereas she testifies she did get from Goodin the money to make her payment on this automobile, occupied this house rent free, that Mrs. Myers gave her the furniture which she took out of this house before the fire, and that the only return expected of her for the occupation of these houses was that she would for Goodin collect the rent on the other two, and that she moved out because she did not want to be there when it was burned, which she had agreed with Mrs. Myers she would do, to enable Goodin to collect the insurance on the property, for which Mrs. Myers told her Goodin would pay her $750 when he collected his insurance.

These houses cost $10,800 to erect, $8,400 was loaned on them by the Home & Savings Building Association of Ashland, and insurance policies for that amount were then procured upon the property and deposited with it as collateral security for its loan. Goodin acquired these cottages from Dr. J. D. Williams in exchange for a piece of business property and Goodin took over the insurance that was on them and has since kept it up, $2,800 on each cottage, but has by payments to the Home & Savings Building Association reduced the debt to it to about $2,500 per house.

Mr. Geo. W. Snodgrass, an insurance agent, testified he acquired an insurance business that had formerly belonged to a Mr. Roper and that he found a copy of a policy of $2,000 written by that agency upon furniture in cottage 1073, and that he canceled that policy after the fire, but he was unable to say the policy had ever been delivered to Goodin, and that is all that was ever shown regarding insurance on this furniture. When it was written, the items it covered, when it would expire, and what was done with it nowhere appears.

If we could receive unconditionally the testimony of Mr. and Mrs. Davis, then it is shown Goodin was their confederate, their employer, their accomplice in this crime, but they are self-confessed arsonists, so engaging for hire, and the court correctly told the jury that Goodin could not be convicted upon their evidence unless it be corroborated by other evidence tending to connect Goodin with the crime, and that it is not enough if it merely show the crime was committed and the circumstances of its commission, so our problem is to look in this record for the evidence coming from sources other than Mr. and Mrs. Davis, connecting Goodin with the burning.

We shall now examine this evidence item by item in search for such corroboration if any there may be.

Refusal to Swear Out a Warrant.

The authorities began an active investigation of this fire. Goodin told them certain furniture was missing and soon they found in the possession of Mrs. Davis certain goods alleged to have come out of this house 1073 and they carried Goodin out to see it. They say Goodin said it looked like his furniture, but it had been done over (painted) and he was afraid to identify it and would not swear out a warrant charging the Davises with taking it.

The Employment of Levi.

Mr. C. R. Levi, an attorney in Ashland, testified that after Mr. and Mrs. Davis had been arrested and put in jail, Mr. Goodin employed him. Goodin was not then charged with anything, and that Goodin came to discuss with him the matter of their arrest. That was all to which Levi was permitted to testify in the presence of the jury.

Goodin testified about this incident and he testified he employed Levi to attend the examining trial of Mrs. Davis, not as her representative but as his, to see what they had against her, that he did not employ Levi to defend the Davises, but as he was working and could not be there, he wanted Levi to find out what they had against the Davises.

The Stenographer's Notes.

Some one connected with the state fire marshal's office had interrogated various parties, including the Davises relative to this fire, and the questions and answers were taken down by a stenographer and transcribed by her, and Goodin got from her a transcript of those questions and answers.

The commonwealth urges the refusal of Goodin to swear out warrants against the Davises for taking his furniture, his employment of Levi to attend the examining trial, and his procurement of a copy of the notes taken when the fire marshal made his investigation as circumstances to connect Goodin with this crime. Of course, one can be connected with a crime by circumstantial evidence and an accomplice can be corroborated by such evidence, but we have often said of circumstantial evidence that if it is as consistent with the innocence of the accused as with his guilt, it is insufficient. See Tarkaney v. Com., 240 Ky. 790, 43 S.W.2d 34, and we have held that rule applied to the corroboration of accomplices. See Bowling v. Com., 193 Ky. 642, 237 S.W. 381, and Mattingly v. Com., 195 Ky. 838, 243 S.W. 1044, and C.J., p. 705,§ 1439.

We know from malicious prosecution suits reaching this court that the arrest of a person, if he be not convicted, frequently results disastrously for the person who has it done and that a man who acts on the advice of counsel, after such counsel knows all the facts, is safe, hence Goodin's claim that he was afraid to identify the furniture, his employment of Levi to find out what they had against the Davises, and his procurement of a copy of the fire marshal's investigation are all perfectly consistent with the conduct of an innocent man, and the value of these three alleged items of corroboration is zero.

Motive.

For the commonwealth it is argued Goodin had a motive for this arson and that is urged as corroboration of the Davises. That raises two questions. Had Goodin a motive? Can motive corroborate an accomplice?

Burning houses that cost $10,800 to build in an effort to get $8,400...