People v. Belcher

• Court: Court of Appeal of Michigan
• Writing for the Court: J. H. GILLIS
• Citation: People v. Belcher, 185 N.W.2d 440, 29 Mich.App. 341 (Mich. App. 1971)
• Decision Date: 18 January 1971
• Docket Number: Docket No. 5539,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry BELCHER, Defendant-Appellant

Page 440

185 N.W.2d 440

29 Mich.App. 341

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry BELCHER, Defendant-Appellant.

Docket No. 5539.

Court of Appeals of Michigan, Division No. 2.

Jan. 18, 1971.

Leave to Appeal Denied March 23, 1971.

Released for Publication April 9, 1971.

Jerome K. Barry, Merideth, Barry & Larin, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and DANHOF and O'HARA, ^* JJ.

J. H. GILLIS, Presiding Judge.

Defendant Harry Belcher, was charged with and convicted, following trial by jury, of committing murder in the perpetration of arson in contravention of M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). Defendant was sentenced to life imprisonment and brings this appeal upon leave granted. ¹

In the early morning of January 25, 1965, a fire struck the home of defendant, his wife, and six children. Defendant escaped the blaze suffering only from smoke inhalation. The remainder of the family died due to asphyxiation brought about by the smoke. Following investigation by the Ferndale police and fire departments, defendant was arrested and charged.

Defendant's first issue on appeal challenges the finding by the magistrate at the preliminary examination that a crime was committed and that probable cause existed to believe defendant committed the crime. The rule is well settled that the existence of probable cause is primarily for the determination of the examining magistrate. This Court is not at liberty to substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion. People v. Karcher (1948), 322 Mich. 158, 33 N.W.2d 744; People v. O'Leary (1967), 6 Mich.App. 115, 148 N.W.2d 516.

Where, as here, defendant is charged with murder committed in the perpetration of an arson, the prosecution may establish the Corpus delicti of the crime by showing that a building was burned, that the fire was intentionally or wilfully set, Peterson v. Oceana Circuit Judge (1928), 243 Mich. 215, 219 N.W. 934; People v. Porter (1934), 269 Mich. 284, 257 N.W. 705, and that a person died as a result of the fire. See generally 3 Gillespie, Mich. Criminal Law and Procedure (2d ed), § 1700, [29 Mich.App. 344] p. 2057, as to the establishment of the Corpus delicti by circumstantial evidence. Testimony was adduced at the preliminary examination, which, if believed, established that Catherine Joyce Belcher, defendant's wife, died due to asphyxiation during a fire in the Belcher home. There was also evidence tending to show that the fire originated on the landing of a stairway leading to the basement, that a fast burning accelerant was used in starting the fire, that the accelerant was gasoline, and that the fire did not start accidentally, but rather was incendiary in nature.

Regarding the question of probable cause to believe defendant started the fire the evidence centered on two points. First, defendant was the only person on the main floor of the house when the first witnesses arrived. Second, he had, for approximately one year, been dating another woman who, ten days before the fire, had threatened to stop seeing the defendant unless he told his wife that he was going to divorce her. In light of the evidence establishing that a crime was committed together with defendant's presence at the scene of the crime and possible motive ² for disposing of his wife, we are unable to conclude that the magistrate's finding of probable cause was a clear abuse of discretion.

Defendant's second claim on appeal is that the lower court erroneously allowed the prosecution to build inference upon inference in its proofs. In support of this claim defendant cites People v. Petro (1955), 342 Mich. 299, 70 N.W.2d 69.

It must be remembered, however, that an important distinction exists between the pyramiding of inferences condemned in Petro, supra, and the legitimate use of circumstantial evidence. The former amounts to little more than prohibiting inferences based upon evidence which is itself speculative or uncertain. People v. Helcher (1968), 14 Mich.App. 386, 165 N.W.2d 669. The latter, however, involves proof of a series of Facts, which when viewed together form a chain of evidence showing a certain result. As noted in People v. Vanderpool (1870), 1 Mich.N.P. 264, 269:

'If circumstantial evidence satisfies the mind, then it is equal to positive evidence, because it produces the same effect.'

Thus, although 'each link in the chain of circumstantial evidence must be established beyond a reasonable doubt,' (People v. Gerndt (1928), 244 Mich. 622, 637, 222 N.W. 185, 190) such evidence may justify a jury verdict. Furthermore, as a practical matter, 'The crime of arson is so peculiarly one of secrecy' that as is often the case in such instances, 'the people (might) necessarily (be) confined to circumstantial evidence.' People v. Porter (1934), 269 Mich. 284, 292, 257 N.W. 705, 708.

We believe that the following statement by the United States Court of Appeals for the First Circuit adequately articulates the point:

'The defendant cautions us against 'piling inference upon inference.' As interpreted by the defendant this means that a conviction could rarely be justified by circumstantial evidence. (Citations) The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. If enough pieces of a jigsaw puzzle fit together, the subject may be identified even though some pieces are lacking. Reviewing the evidence in this case as a whole, we think the jury was warranted in finding beyond a reasonable doubt the picture of defendant Dirring.' Dirring v. United States (CA 1, 1964), 328 F.2d 512, 515 cert. den. (1964), 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052, reh. den. (1964), 379 U.S. 874, 85 S.Ct. 27, 13 L.Ed.2d 83. (Citations omitted.)

See also, People v. Helcher, Supra.

Without going into detailed analysis of each of the points defendant alleges to be an inference based upon an inference, suffice it to say that we believe inferences necessary to the prosecution's case were permissible and not based upon speculation or conjecture. As the detailed recitation of facts set forth below illustrate, enough pieces of the jigsaw puzzle did fit together so that 'the subject may be identified even though some pieces are lacking.'

Turning to defendant's third issue on appeal, it is alleged that insufficient evidence was adduced at trial to support the jury verdict. We have reviewed the transcript of the trial with great care. The record discloses evidence, which, if believed, support the following.

Just before 6 A.M. on January 25, 1965, Dennis Lukasik was awakened from his sleep by a voice crying 'Help, fire.' After hearing the voice a second time, he got up, ran out to the front porch of his home and shouted 'Where are you?' He then heard the response: 'This is Belcher, 446 Hazelhurst.' Lukasik went back inside, called the fire department, dressed, and ran toward the Belcher residence.

After arriving, by way of an alley and through Belcher's back yard, Lukasik attempted to enter the home through the back door, but was driven off by smoke and flames. As he went around the house toward the front he saw defendant in one of the main floor windows. The glass was broken out and defendant's face was flush against the screen. Lukasik pulled the screen out of the window, got a ladder lying a few feet away and put it in position so defendant could climb out.

In a few moments the fire department arrived and took charge. Upon the department's arrival, defendant immediately pointed toward the upstairs of the house and said 'My wife and kids are up there.' A fire ladder was put in place and one of the firemen ascended to the second floor, carrying special breathing equipment with him. During a search of the upstairs the firemen located the bodies of the seven victims.

Both Lukasik and defendant were hospitalized--the latter for several days. Neither, however, suffered serious or permanent injury.

The combined investigation of the Ferndale police and fire departments and Michigan State police uncovered several significant findings. The fire originated on a small landing at the head of the basement stairs. From the landing the fire burned up and through the staircase leading to the second floor.

On a ledge in the landing area, the remains of a small plastic wastebasket which contained some garbage were found. The garbage was saturated with what was chemically proven to be gasoline. No other container showing traces of gasoline was found in the immediate vicinity of the fire. However, a gas can was located in defendant's workshop in the basement.

Beyond the existence of gasoline in the wastebasket expert witnesses also pointed to the depth of the char marks on the landing floor and char marks on the door jamb leading from the kitchen to the landing to show the existence of a fast burning accelerant. The deep char marks indicated that the fire burned downward into the flooring far more than usual, thereby contradicting the tendency of fires to burn in an upward direction. The second point demonstrated that the kitchen door was open during the fire. As one expert testified:

'Q. Now, this landing, 2 by 2 landing that you referred to, you described the fire as going in a cone-shaped form?

'A. No, in that it raised from there, but this landing was affected by a door to the kitchen, which would have been the normal pattern. The fire in this instance was so intense in this landing area that it acted something like a blowtorch and burnt up through the upper stairway and went up to the...