People v. Alexander

• Citation: 182 Cal.App.2d 281,6 Cal.Rptr. 153
• Decision Date: 29 June 1960
• Docket Number: Cr. 3734
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert D. ALEXANDER, Defendant and Appellant.

Page 153

6 Cal.Rptr. 153

182 Cal.App.2d 281

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert D. ALEXANDER, Defendant and Appellant.

Cr. 3734.

District Court of Appeal, First District, Division 1, California.

June 29, 1960.

Hearing Denied Aug. 24, 1960.

Leo R. Friedman, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Albert W. Harris, Jr., Deputy Attys. Gen., for respondent.

DUNIWAY, Justice.

Appeal from a judgment of conviction (granting probation) and order denying motion for new trial, upon a charge of arson (Pen.Code, § 448a). Appellant claims (1) that the evidence is insufficient to sustain the verdict; (2) that the court erred in refusing to instruct the jury upon the defense of unconsciousness (Pen.Code, § 26, subdivision five); and (3) that the court abused its discretion in fixing the terms of probation. We conclude that the judgment must be affirmed.

'1. The evidence is sufficient.

We, of course, must view the evidence in the light most favorable to the prosecution, in considering this question. We state only that portion of the evidence directly related to appellant's contention, which is that the evidence only establishes that appellant was in the building while it was burning, but does not in any way show that he started the fire.

In the early hours of Sunday, August 10, 1958, a factory building located in San Francisco, the property of Culter-Hammer, Inc., was severely damaged by fire. The building faces on Third Street and extends to the rear to Tennessee Street, the next street west, and its southern border is formed by a building which contains a grocery store operated by one Aristide Ribolini. The main entrance to the building is on Third Street and is formed by two plate glass doors. A stairway leads from this entrance to a landing, makes a right-angle turn and continues up to a mezzanine floor which extends across the southern end of the building. The first portion of this mezzanine is given to sales and administrative offices, of which there are seven, and two hallways. The building has five doors, three on Third Street, of which one is a 'roll-away,' and two on Tennessee Street, one of which is also a 'roll-away.' The roll-away doors are steel and cannot be opened from the outside. They were closed. Of the other two doors (other than the main entrance), one was locked, and the other could not be opened from the outside. Both were forced open by the firemen. It was stipulated that 14 persons had keys to the building, and that, if called, all but the janitor, who worked Saturday morning, would testify that they did not enter the building after Friday.

At 1:10 A.M., appellant, apparently drunk and belligerent, kicked on the door of Ribolini's store. Ribolini told him to go away, threatened to call the police, and did so when appellant persisted. While he was calling, Robolini saw appellant walk away, and shortly heard the sound of breaking glass. This was at about 1:15 A.M. One policeman arrived at Ribolini's at 1:17 A.M., two others, just afterward. About ten minutes later, Ribolini noticed that the righthand glass door in the main entrance to the Cutler-Hammer building was broken, and that the stairway was lighted. Two of the officers saw a man, dressed, as was appellant, in a sport coat and white shirt, coming down the stairway. He stopped and ran back upstairs. At or about this time, there was a flash of light on the mezzanine. One or more of the officers started up the stairs, but smoke drove them back. At about that time, there was a crash of a window being broken overhead, and appellant appeared, saying, 'I can't breathe.' Shortly afterward he jumped or fell to the pavement where he lay unconscious. An offduty fireman saw flames in the building and turned in an alarm, at 1:33 or 1:34 A.M. Appellant's fall to the pavement was immediately afterward. The first fire truck arrived within three or four minutes, and by that time the fire was vigorous. The entire office area of the mezzanine was on fire, but the blaze was contained in that area.

Expert testimony showed that the fire was deliberately set in five separate places throughout the office area, including the main office and the top portion of the stairway leading to the main entrance, and that a volatile liquid was used for this purpose. Desk drawers and filing cabinets had been opened in some of the offices. A duplicating machine was located in the main office, and the duplicating fluid which was used in conjunction with the machine might have been the liquid which was employed to initiate the conflagration. The liquid used was of the alcohol group, and the duplicating fluid contained methyl alcohol. The fluid was stored by the machine, there were three cans in that location--one full, one two-thirds full with a plastic puring spout inserted in it, and one empty, and those cans were not wrapped in paper. After the fire two full cans of duplicating fluid, wrapped in paper, were found near the duplicating machine. Two empty cans, whether or not wrapped the record does not disclose, were found in a pile of debris which had been removed from the building. An empty unwrapped can with a plastic spout was found on top of a desk in the main office.

Appellant suffered no burns, and none of the witnessess had seen any burning, singeing or charring of his clothes. He had lost a shoe at the scene of the fire. It was neither burned nor scorched, and betrayed no trace of a volatile liquid.

When the officers first arrived, they looked for appellant, both on Third Street and on Tennessee Street. No one was seen to enter or leave the Cutler-Hammer building, nor was anyone but appellant found in it.

Appellant first claims that it was physically impossible for him to have set the fire. The argument may be stated as follows: Appellant was in a strange building no more than 18 minutes. In that time it would have been necessary for him to find the violatile fluid, 'slosh' it in five separate places throughout the office area, ignite the fire, run down the stairs and then back up, and then jump out of the window. As much liquid as was used to start the fire could not have been thrown 'in a volatile fluid, 'slosh' it in five separate cans containing the duplicating fluid, without out some fluid getting on the clothes of the arsonist. No one detected the odor of methyl alcohol on appellant's clothes, nor were his clothes burned or signed. His shoe was examined and was neither burned nor scorched, nor did it reveal any trace of a violatile fluid. According to an expert who testified for respondent, if any of the fluid had splashed on the arsonist's clothes, the intense heat would have caused it to ignite and the clothes would have been burned.

No physical impossibility appears as a matter of law from the fact that the floor plan of the building was unknown to appellant, or from the limited time which was available to him. Respondent's expert testified that if one were careful one could splash or throw fluid in the manner in which the arsonist did and from the cans in question, without getting any of it on oneself. Of appellant's clothes, only one shoe was subjected to an examination, and as far as odors are concerned, there is testimony that appellant smelled of smoke and fire. According to this expert, a small amount of the fluid on the arsonist's clothes would have evaporated, the fluid being highly volatile, while a large amount would have led to a flaming death.

Appellant next argues that the fire must have started before he entered the building. This argument adds to the physical impossibility argument the testimony of a bartender that appellant was in his bar five or ten minutes before the bartender saw the fire. His testimony is contrary to that of six other witnesses and was doubtless rejected by the jury.

The final argument on the evidence is that it showed no more than opportunity to commit the crime, and 'the opportunity to commit an offense can have no weight, apart from other circumstances, unless it excludes all reasonable opportunity for its commission by another, and, standing alone, is insufficient to sustain a conviction.' People v. Tarbox, 1896, 115 Cal. 57, 63, 46 P. 896, 897; see also People v. Planagan, 1944, 65 Cal.App.2d 371, 412, 150 P.2d 927; People v. Jollet, 1943, 60 Cal.App.2d 245, 249, 140 P.2d 479.

The evidence, however, shows more than mere opportunity. Moreover, it could be viewed as excluding any reasonable opportunity for another to commit the crime. Appellant was truculent before Ribolini's store and scarely less so when he smashed an entry into the Cutler-Hammer building moments later. There was expert testimony that the fire was ignited while he was in the building. Certainly the mezzanine was in flames at the time appellant was seen descending the stairway, and yet as the jury could have found, appellant chose to return to the inferno raging above him rather than take the few remaining steps down to safety and the police. The jury could properly have refused to believe that, while appellant was wandering through the offices on whatever business he had there, some unknown person was walking about the same area engaged in setting a fire. That body, after observing appellant on the stand and hearing the evidence as to the amount of alcohol he had consumed (appellant's medical expert, to support) his diagnosis of unconsciousness caused by intoxication, was constrained to assume that appellant had drunk more than the evidence indicated), may have rejected his claim of amnesia and have drawn unfavorable inferences from his failure to disclose what had occurred while he was inside the building.

There was adequate evidence for the jury to find that all doors which could be opened from the outside had been locked since Saturday morning. As for former employees with keys, Cutler-Hammer's administrative supervisor testified that there had been few of them...