People v. Campbell
| Decision Date | 18 May 1942 |
| Docket Number | No. 79.,79. |
| Citation | 301 Mich. 670,4 N.W.2d 51 |
| Parties | PEOPLE v. CAMPBELL et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Marshall Campbell and Edward Dayle Kettler were convicted of wilfully burning an unoccupied dwelling house, and they appeal.
Affirmed.Appeal from Circuit Court, Livingston County; Joseph H. Collins, judge.
Before the Entire Bench.
Shields & Smith, of Howell, for appellants.
Joe P. Gates, Pros. Atty., of Howell, for appellee.
Defendants were charged with and convicted of the crime of wilfully burning an unoccupied dwelling house, owned by defendant Edward Dayle Kettler, at Patterson Lake, in Livingston county, and each sentenced to imprisonment from three to twenty years.
At the close of the examination before the magistrate they moved for discharge on the ground that the crime charged had not been shown. The motion was denied and they were held for trial. Upon arraignment in the circuit court and before plea they renewed the motion which was again denied and, upon their standing mute, the court entered pleas of not guilty.
The testimony before the magistrate is in the record and under defendants' appeal the first question is whether it established the fact, outside of defendants' extrajudicial statements, that the fire was of incendiary origin. If the fire was of incendiary origin then statements of defendants of their connection therewith were admissible to show they committed the crime, but such extrajudicial statements could not be used to establish the fact that the fire was incendiary. People v. Kirby, 223 Mich. 440, 194 N.W. 142. If the circumstances accompanying the fire disclosed it was of incendiary origin then commission of the crime by some one could be found. People v. Burlingame, 257 Mich. 252, 241 N.W. 253;Peterson v. Oceana Circuit Judge, 243 Mich. 215, 219 N.W. 934.
If the fire was incendiary the extrajudicial statements made by defendants of their connection therewith could be shown upon the question of the guilt of the utterer.
The fire was discovered about 1:30, the morning of February 21, 1940, by a neighbor, living nearby, who heard an explosion and, upon investigation, noticed a flash of flame at the Kettler house, went over and found the house filled with smoke. Others soon came, including the fire department of a nearby village. The door of the house was found unlocked and a bed mattress and some rags were in a smouldering fire and an odor of gasoline was present. The fire was soon extinguished and the house and its other contents saved. An almost empty gasoline can and a partly filled kerosene can were found on a table, and the bed and rags carried evidence of gasoline.
Considering the time of year, the night hour of the fire, and the disclosed circumstances accompanying it, we think the evidence sufficiently established the fact that it was incendiary in origin and, therefore, the crime charged was committed by some one, and defendants' extrajudicial statements of their connection therewith were sufficient to hold them for trial in the circuit court.
Counsel, representing both defendants, moved for separate trials, claiming extrajudicial statements, purported to have been made by defendant Campbell, not in the presence of defendant Kettler, and, therefore, not admissible against Kettler, would be prejudicial to Kettler despite any instructionof the court on the subject. Separate trials were denied.
The statute, Comp.Laws 1929, § 17298, Stat.Ann. § 28.1028, provides: ‘When two (2) or more defendants shall be jointly indicted for any criminal offense, they shall be tried separately or jointly, in the discretion of the court.’
We find no abuse of discretion in denying separate trials.
The circuit judge was careful throughout the trial to warn the jury relative to the use of the statements made by defendant Campbell, not in the presence of defendant Kettler, and instructed the jury:
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