People v. Bowman

• Decision Date: 24 February 1966
• Docket Number: Cr. 4769
• Citation: 240 Cal.App.2d 358,49 Cal.Rptr. 772
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse T. BOWMAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 772

49 Cal.Rptr. 772

240 Cal.App.2d 358

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse T. BOWMAN, Defendant and Appellant.

Cr. 4769.

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

Feb. 24, 1966.

Lucas, Wyckoff, Miller, Stanley & Scott, Santa Cruz, for appellant.

Thomas C. Lynch, Atty. Gen., Derald E.Granberg, Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from a judgment sentencing him to state prison following his conviction by jury verdict of arson in violation of section 447a of the Penal Code.

He contends that evidence of his conversations with alleged accomplices was unlawfully obtained and improperly received in evidence; that there was error in receiving in evidence a witness' opinion as to the location at which the fire started; that the trial judge showed bias and partiality in conducting the proceedings; that the prosecutor's comments violated defendant's constitutional privilege against self-incrimination; that the prosecutor committed other prejudicial misconduct in his argument to the jury; and that the court erred in instructing the jury. An examination of the record and the foregoing contentions, in the light of the principles of law applicable thereto, reveals no prejudicial error which would warrant a reversal and the judgment must be affirmed.

In July 1963 defendant and his wife apparently held title to a house on what is referred to as Justice Lane just off Soquel Drive, or 5229 Soquel Drive, in the area of Santa Cruz County serviced by the Soquel volunteer fire department. The property was subject to a first deed of trust which secured an obligation in the sum of $11,500, on which no more than $100 had been paid on the principal, and a second deed of trust which secured an obligation of $1,500, upon which nothing had been paid.

One Cole, a thrice-convicted felon, first revealed his part in the offense under review, after discussing the matter with his attorney, when arrested on a forgery charge in November 1963. He sought and was granted leniency on the latter charge, and he never was prosecuted for his participation in the burning of defendant's house, or for admittedly setting a fire at another house. He testified as follows: that he had known defendant since 1960; that he had traded pick-up trucks with him in 1962 and received a truck which defendant represented had a trade-in value greatly in excess of that which the witness was able to obtain a month later; that he was working for defendant in July 1963 doing carpenter work for which defendant owed him a little better than $200; that around the 8th or 10th of July, defendant, in the middle of the day, asked him to leave the job he was working on to go to the Soquel Drive premises; that he accompanied defendant in the latter's vehicle; that in the conversation in the car and at the premises, which they entered through a door from the carport to the kitchen after opening it with a key kept in a can in the carport, defendant told him: that he had put several thousand dollars into remodeling the house; that it had been sitting there for fifteen or eighteen months and he was unable to move it; that he had $18,000 worth of insurance on the house, as was evidenced by a policy which he took from a drawer in the kitchen and exhibited to Cole; and that he would pay Cole to have it burned down--$500 cash if the insurance paid him less than $12,500, or anything over and above $12,000; and that Cole should be sure defendant was out of town when it happened.

Cole related that he could not remember how long he worked for defendant after the foregoing conversation, probably three or four days, and that he was working on the floors at the job previously referred to at the time defendant went to the hospital; that he saw and conversed with defendant almost every day at one or another of two bars they each frequented; that defendant told him he was going to a hospital in Watsonville, but did not tell him when he would be out; that he did not see defendant at the hospital, but subsequently learned from a conversation with an unidentified man in a bar that defendant was getting out of the hospital the following day.

At the trial Cole recited that Ray Mount and Wayne Cook were with him as lookouts at the time he set the fire. He was unable to remember when he first discussed the matter with either, but indicated that he talked to Mount before Cook, and the latter, in the presence of Mount, shortly before the house was burned--either that evening or a day or so before. He acknowledged he offered $100 to each of them to assist, and told them he was to get $500 for burning the house. According to Mount, who also testified, Cole first told him of the plan to burn the house two or three weeks before the event, and he advised Cole not to do it; and thereafter on the day preceding the fire Cole enlisted the aid of Mount, Cook, and Tommy Crank and offered each of them $100 to assist. Cole testified on direct examination that he had been back to the Bowman house before the fire at a date he could not remember, but on cross-examination could not recall whether he had returned or not during that interval. Mount, however, placed Cole, himself, Cook and Crank on the premises between two and four o'clock of the afternoon preceding the blaze. He stated that they walked through the house while Cole looked for a place to start the fire, and that Cole stated he thought he would start it in a closet somewhere right near the kitchen.

Cole gave the following version of the commission of the offense: The four last mentioned were at Cook's home, which was located either three-quarters of a block or about two blocks up and across the road from the Bowman house. Between 2:30 and 3 a. m. Cole went to the carport, secured the key and entered through the door on the back side to a service porch so he could not be seen from the front, and left Mount and Cook as lookouts. He could not recall any prearranged signal, nor could he recall his prior statements to the investigating officer that a party whom he did not wish to identify, but who he subsequently during the investigation identified as Cook, went under the house and poured a can of lacquer thinner under the floor and lit it. Cole went into the kitchen where some paint was stored, selected a bucket of paint, returned to the service porch, poured the paint in and around the bottom of a small closet, which was just a little bit larger than the size of a hot water heater and which had a vent or hole in the bottom, and set the paint afire with one or more matches. The paint bucket was left in or nearby the closet. He was in the house less than ten minutes. He could not recollect which door he went out, nor remember whether or not he locked it, but he replaced the key, and returned to Cook's house where he remained for 35 or 40 minutes or so and watched the fire burning and the firemen fighting the fire.

Mount testified that he had known Cole about a year at the time of trial (11 months after the fire) and also knew Bowman. He had not been prosecuted for his admitted part in the offense. He placed Crank at the scene of the blaze, but he did not see where either Cook or Crank went. He confirmed that Cole got the key in the carport and entered the house where he remained not over five minutes while Mount was outside in the carport watching. According to Mount, Cole entered the door from the carport into the kitchen. When he came out he said, 'It's set. Let's go,' and they walked off.

The assistant chief of the local volunteer fire department, who had participated in fighting at least thirty fires a year for the preceding 20 or 21 years, arrived at the scene at 4:23 a. m. At that time the fire had a pretty good start through the back of the building. The big flame was through the roof in the middle of the building to the rear and north side between the service porch and the kitchen. After the fire died down he went into the back entry hall. Opposite the door was a wall (south) with a cupboard, and a hot water heater to the left of the cupboard; the door into the kitchen was on the left (east) wall, and between the door (north) and the east wall was a hole in the floor and the remnants of what appeared to have been a cooler with a ventilating hole through the floor. A paint can was lying in front of it with the top tipped toward the aperture in the floor. The witness opined, after reviewing the damage he inspected, that the fire started in the service porch, and that it most likely started on the north wall where it appeared an old type cooler had been. He went back to the premises on two or three occasions, the last of which was two or three weeks after the fire, and the paint can was still there.

A self-employed insurance adjustor testified that he came to the house between 9 and 9:30 a. m. on the morning of the fire. He described the damage and physical condition he witnessed including an overturned paint can in the service porch, and paint, which was partially burned and partially still moist, on the floor next to a hole in the northeast corner of the service porch. No evidence of burning underneath the house was detected except around this hole. He left the paint can on the premises and retrieved it and turned it over to the sheriff on August 12th when he had occasion to investigate a nearby fire where there was evidence of paint burning. He recalled seeing a box with from three to five paint cans in either the kitchen or the carport. He saw defendant on the premises on one or two occasions between the fire and August 12th and told him he thought the fire started where the cooler was but never told him that he thought paint was used to start the fire. His investigation revealed that the gas and electric service were connected and on at the time of the fire.

Cole testified that he saw defendant when...