Solomon v. State

• Decision Date: 30 November 1934
• Citation: 76 S.W.2d 331
• Parties: SOLOMON v. STATE.
• Court: Tennessee Supreme Court

76 S.W.2d 331

SOLOMON v. STATE.

Supreme Court of Tennessee.

November 30, 1934.

Error to Criminal Court, Hamilton County; Charles W. Lusk, Judge.

Mayer Solomon was convicted of arson, and he brings error.

Affirmed.

Peabody Howard, of Chattanooga, for plaintiff in error.

W. F. Barry, Jr., Asst. Atty. Gen., for the State.

McKINNEY, Justice.

Mayer Solomon, referred to herein as the defendant, was convicted for violating section 10898 of the Code, which is as follows:

"Any person who willfully and maliciously causes to be burned, or who aids, counsels or procures the burning of any of the property mentioned in this article, shall be guilty of arson and shall be punished as provided herein for those who are guilty of setting fire to or burning such property themselves."

The maximum punishment of defendant was fixed at four years in the penitentiary.

The defendant is a naturalized Russian Jew, forty-two years of age, and at the date of the offense was operating a grocery store in the city of Chattanooga. He was convicted of voluntary manslaughter in 1927, and given a sentence of two years in the penitentiary. He was pardoned after serving eleven months of this sentence.

For some time prior to May, 1932, defendant's wife owned a house located on Lazard street in the town of East Ridge, Hamilton county. The house was constructed at a cost of $2,100, four years prior to the attempted burning, was mortgaged for $1,400, and insured for $2,700. Defendant admitted that he had been having difficulty in collecting the rent on this house.

Certain officers had information that an attempt would be made to burn this property. They watched the house during the night of May 7, 1932, the day on which the tenant moved out, but no attempt was made to burn it that night. On the next night the officers went to the place about 10 o'clock, and one of the neighbors told them that some one had come to the premises in a car and had gone into the house. The officers immediately went to the place with the intention of capturing the parties, but, before they had an opportunity to do so, the car was hurriedly backed out of the driveway and an escape attempted. The parties in the car were Joyner and Mann. They were pursued by the officers, and Joyner, who was driving, in his haste to get away, failed to make a turn in the street and ran out into a field. He then jumped out of the car and made his escape. He was later arrested and released on bond furnished by defendant, which he forfeited. He has never been apprehended. Mann was discovered secreted in the back of the car, was arrested, carried to jail, and through him the officers learned that the car belonged to defendant and that Joyner was to return it to him at the Y. M. H. A. at 10 o'clock. The officers then went to the Y. M. H. A., arrested defendant, and brought him to the police station, where he admitted ownership of the car, but claimed he had loaned it to Joyner to take a girl riding.

After capturing Mann, the officers returned to the Solomon house, and in the basement found a partially burned burlap bag which had been saturated with coal oil. They put out the fire, which had burned some distance up the weatherboarding; the damage resulting therefrom being about $100. Mann was not known to the defendant at all.

The state attempted to establish a conspiracy between defendant and Joyner, and then, upon the assumption that a prima facie conspiracy had been established, had Mann to testify, over objections of defendant, as to statements made to him by Joyner about burning the house. If such conspiracy was established, then the testimony was competent; otherwise it was not, was highly prejudicial, and the defendant should have a new trial.

Echols, who was a tenant on the property shortly before it burned, testified that on the night of May 2nd some parties came to the house about midnight and set fire to a place near the basement window; that he was awakened and saw their car drive away. This information was imparted to the officers, which accounts for their presence on the premises at the times heretofore stated. Echols further testified that defendant came to the house a few days before he moved out and attempted to get him to move a yard hydrant which was located 10 feet from the house, and which furnished the outdoor water supply.

It is further shown that defendant took Joyner out of the workhouse on March 21, 1932, and paid or secured his fine of $65.70. After Joyner's arrest in this case, defendant paid $40 to a bondsman to make his bond. Joyner has a criminal record. Defendant says he did the things herein enumerated because Joyner had a sister who operated a restaurant and who was one of his best customers.

Mann testified, in effect, that on the night in question Joyner picked him up in defendant's automobile about 7 o'clock, drove to Solomon's store, went inside, and came out a few minutes later with a burlap sack, containing what he later found to be an oil can. Such a sack and oil can were found by the fire marshal at the precise place where the fire started. In view of the foregoing circumstances, we concur with the trial court in holding that a prima facie case of conspiracy had been made out, and hence the testimony of Mann as to statements made to him by Joyner were admissible. Mann's testimony is as follows:

"He (Joyner) came to me on Wednesday before the Sunday the house was set on fire and asked me if I would like to make some money and I asked him what, he told me Mr. Solomon offered him $100.00 to burn his house east of the ridge and he offered me $50.00 and asked me if I would help, and I said I didn't know, I didn't like to do anything like that and I went down to the restaurant that afternoon and he talked to me about it and I didn't see him any more until Saturday and he told me Saturday would I go with him Sunday night. I told him I didn't know. I talked to him again Sunday and he told me Solomon was to go to the Y. M. H. A. for some kind of a meeting, and was going to leave the keys in his car and he would come by home after me, and he came by home about seven o'clock, and we went from my house to Mr. Solomon's store where he got the sack with something in it and from there to Lazard Street and Mr. Joyner got out of the car and asked me to hand him the sack and I did and he went on the front porch and it is built so I could not see up there, and in about five minutes he came out the basement window on the opposite side and got in the car and Mr. Avery and Mr. Wakefield fired at us."

The defendant made a complete denial of his complicity in this matter.

Upon the foregoing facts, we think the verdict is abundantly sustained.

With respect to the law of conspiracy, this court, in Owen v. State, 16 Lea (84 Tenn.) 1, 3, 4, said:

"A conspiracy is, in general terms, a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose: 3 Greenl. Ev., § 89.

"When the conspiracy is established, the act or declaration of one conspirator in the prosecution of the common enterprise, is considered the act or declaration of all, and is evidence against all. A foundation, however, must or should be laid to establish a prima facie case of conspiracy before the admission of evidence of acts or declarations of one as evidence...