People v. Cole, Cr. 13802

• Decision Date: 06 February 1968
• Docket Number: Cr. 13802
• Citation: 258 Cal.App.2d 656,65 Cal.Rptr. 848
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Ellis COLE, Defendant and Appellant.

Page 848

65 Cal.Rptr. 848

258 Cal.App.2d 656

The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Ellis COLE, Defendant and Appellant.

Cr. 13802.

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

Feb. 6, 1968.

Hearing Denied April 4, 1968.

Joseph Amato, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

FOURT, Associate Justice.

Walter Ellis Cole appeals from a judgment of conviction of arson (Pen.Code, § 447a) in a nonjury trial.

A re sume of some of the facts is as follows:

Defendant resided with his wife and three children in the lower apartment of a two-story stucco duplex located at 1219 East 33rd Street in Los Angeles. The apartment was rented from Shedrick Johnson, who lived in a single family residence at the front of the property. Patricia Ann Hicks lived in the upper duplex apartment with her baby and Elmer Johnson, son of the landlord. A few minutes before noon on October 14, 1966, Cole left his apartment in the company of his cousin, Frank Carter, and another man. Shortly thereafter his wife departed with the children to visit the doctor and she locked the door. At about 1 p.m. Patricia Hicks saw Cole and Carter return in an automobile; Cole went into his apartment while Carter remained in the car. About five minutes later Patricia Hicks heard the front door of the lower apartment close again and believed that Cole then left the apartment. Only five or ten minutes thereafter she went out on her porch, saw smoke coming from the living room windows of the Cole apartment, and immediately went downstairs to find someone to call the fire department but learned that a man already had summoned firemen. When the firemen arrived a few minutes later they entered the front door and confirmed that no one was in the apartment.

Ralph L. Wheeler, Battalion Chief of the Los Angeles Fire Department, arrived after another fire unit already had reached the scene, but found smoke and low flames still coming from the apartment window. He entered the main door and found one fire in the living room and another fire, without physical connection, in the bedroom; he believed these fires were separately caused.

Delbert H. Winter, an arson expert with eight years of specialized experience on the Los Angeles City Fire Department, investigated the building when the fire had been burning for 15 or 20 minutes. The physical evidence indicated to him that two separate and distinct fires had been started on the premises within minutes of one another. In his opinion, each fire was caused by human hands using an open flame. It appeared that the living room draperies and a bedroom mattress were burned, while damage to the building was limited to smoke, heat and wood char.

Shedrick Johnson, who had given no one permission to start a fire in the apartment, had set Cole's furniture and furnishings out in the yard, but Cole failed to pick them up. About 10 days later the landlord's daughter, Mary Johnson, saw Cole in a parking lot and told him that her father wanted to see him. Defendant responded in abusive language that he wanted his tables back from her father or else he was going to 'burn that damn place down.' On or about October 27, 1966, Cole came to the door of the upstairs apartment with his cousin, Frank Carter, and spoke to Patricia Hicks. He said that he was looking for two tables and two lamps which belonged to him. When she told him that the furniture had been set outside for him, he said that it was not all there and that he had burned the building down once and if his belongings were not returned he would do it again.

Defendant testified in his own defense that on October 14, 1966, he had left the car for his wife to use knowing that she had a medical appointment for the children, and he...