People v. Horowitz, Docket No. 10812

• Decision Date: 23 November 1971
• Docket Number: No. 1,Docket No. 10812,1
• Citation: 194 N.W.2d 375,37 Mich.App. 151
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Henry HOROWITZ and William Kozin, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 375

194 N.W.2d 375

37 Mich.App. 151

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Henry HOROWITZ and William Kozin, Defendants-Appellants.

Docket No. 10812.

Court of Appeals of Michigan, Division No. 1.

Nov. 23, 1971.

Released for Publication Feb. 25, 1972.

Leave to Appeal Denied March 2, 1972.

John D. O'Connell, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and O'HARA, ^* JJ.

O'HARA, Judge.

Defendants, Lawrence Henry Horowitz and William Kozin were charged in a six-count information with conspiracy to commit arson and substantive arson offenses. M.C.L.A. § 750.73 (Stat.Ann.1962 Rev. § 28.268); M.C.L.A. § 750.75 (Stat.Ann.1962 Rev. § 28.270); M.C.L.A. § 750.77 (Stat.Ann.1962 Rev. § 28.272).

The trial court directed verdicts for defendants on the conspiracy charges (counts 1--3) but allowed the arson charges to go to the jury which returned verdicts of guilty. They were placed on probation and fined $2,000 by the court. This appeal followed of right.

The specific charges upon which they were convicted were: (1) the wilful and malicious burning of the premises which they rented in their catering service, the premises not being a dwelling house or a building within the curtilage of a dwelling house; (2) the malicious and wilful burning of the previously described building which was insured, with intent to defraud the insurer; and (3) the unlawful placing of inflammable and combustible substance in the building with the intent eventually to burn the property.

Defendants allege that the people failed to establish the Corpus delicti of the crime and that the proofs were insufficient to rebut the presumption that the fire was caused by accidental or natural means.

It is imprudent to discuss the Corpus delicti of the crime of arson in a generic sense because of the statutory variations of the offense as it was known to the common law. Mr. Justice Fead, speaking for a unanimous Supreme Court, observed that in general terms, 'The Corpus delicti in arson includes not only the fact of a fire, but also that it was unlawfully caused by a person.' People v. Porter (1934), 269 Mich. 284, 289, 257 N.W. 705, 707. These requisite elements were established in part by direct testimony and in part by permissible inference from established facts.

There was expert testimony tending to show that the most intense burning took place in the south banquet hall of defendants' business premises. Other testimony indicated that at the point of greatest destruction plastic remnants were discovered in which was found traces of a flammable liquid. It was the opinion testimony of a duly qualified expert witness that the fire was of an incendiary nature. That is to say, set by a person.

The record discloses that defendants had both the opportunity and the motive to set the fire. They had ready access to the premises. Their admittedly precarious financial condition furnished a plausible motive of recouping losses by insurance proceeds.

It is the nature of the offense of arson that it is usually committed surreptitiously. Rare is the occasion when eyewitnesses will be available. By necessity, proofs will normally be circumstantial.

We think that the evidence sufficiently established that the conflagration was of incendiary origin and not attributable to natural phenomena.

Objection is next made that the trial court erroneously permitted the prosecutor to prove his case by building inference upon inference. People v. Petro (1955), 342 Mich. 299, 70 N.W.2d 69. It is claimed that an inference was initially drawn that the fire was of incendiary origin. It was then inferred that defendants set it.

In the law an important distinction obtains between the proscription in People v. Petro, Supra, and the legitimate use of circumstantial evidence. As was observed in Dirring v. United States (CA 1, 1964) ¹

'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 (Citation omitted.) 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. (Citations omitted.) 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.'

We think the same is true of the case at bar.

Thirdly, defendants allege that insufficient evidence was adduced at trial to support a finding of guilty beyond a reasonable doubt. The record discloses evidence which, if believed, indicates the following:

Defendants operated a catering service on Wyoming Avenue in the City of Detroit. They rented two buildings which were adjacent to each other and which had a connecting structure between them. In the early morning hours of March 27, 1967 at approximately 3:40 a.m., a passerby observed the structures on fire and summoned the fire department. After the blaze was extinguished, the arson squad of the fire department conducted an investigation. Thereafter, charges were filed by the Wayne County prosecutor.

At trial it was established that defendants had catered two parties the night preceding the fire. Both defendants and their hired help returned to the business offices on Wyoming Avenue. Not long thereafter, at approximately 2:20 a.m., Horowitz and Kozin secured the premises and left in the company of their employees. Horowitz departed in his own car. Kozin and his wife left in his automobile. Kozin loaned his wife's vehicle to one of the employees to drive the other hired help home. The fire was discovered at about 3:40 a.m.

Mr. Roger LaCasse, a member of the Detroit Fire Department Arson Squad, testified that after the fire had been extinguished, he examined the south building. The interior was completely burned and the walls badly charred. He gathered two items from the ruins: a piece of what appeared to be molten plastic, removed from a table located in the south building, and a plastic container which apparently had melted from the top down with the base still intact. This, too, was discovered on a table in the same structure. The witness also related that he had detected the smell of flammable liquid in one of the exhibits. ² He concluded by giving his opinion that the fire could have been caused by placing flammable liquids in plastic containers found in the ruins. ³

Another member of the arson squad, William O'Brien, testified that an arson detection device revealed the presence of a flammable substance in an area of the south building where he had smelled a suspicious odor. O'Brien further stated that he found a...