State v. Baker

• Decision Date: 06 May 1947
• Parties: STATE v. FRED BAKER
• Court: Vermont Supreme Court

53 A.2d 53

115 Vt. 94

STATE v. FRED BAKER

Supreme Court of Vermont

May 6, 1947

February Term, 1947.

Self Incrimination. Arson.

1. The mere fact of the burning of a building is not sufficient to establish the corpus delicti, for if nothing more appears it will be presumed that the fire was the result of accident or some providential cause, rather than the result of a criminal design; but the incendiarism may be proved by circumstantial evidence.

2. When the evidence indicating that a fire was incendiary and that the respondent set it is entirely circumstantial, the circumstances proved must do more than create a mere suspicion, however strong; the circumstances shown must exclude every reasonable hypothesis except that the respondent is guilty.

3. In a prosecution for arson, evidence that the respondent left the house hurriedly after smelling smoke, and remained away until the fire was put out, that he gave false answers to inquiries as to where he was during the fire and that he could give no explanation for the trip he took, is incriminating and tends to show consciousness of guilt.

4. The constitutional validity of No. 52 of the Acts of 1935 depends upon the meaning which the words "nor can he be compelled to give evidence against himself" bore in 1777, when they were included in the Bill of Rights.

5. Where a respondent has it peculiarly within his power to produce a witness, whose testimony would elucidate the transaction, his failure to do so is a proper matter of comment by counsel and court and of consideration by the jury, and creates a presumption, or raises the inference that the testimony if produced would be unfavorable.

6. The inference arising from the failure of the accused to testify in his defense does not amount to substantive proof of a fact necessary to the State's case, and does not arise until the State has introduced evidence of facts and circumstances which, if believed, show beyond a reasonable doubt that the respondent is guilty as charged.

7. When the State has introduced evidence of incriminating facts and circumstances which the accused could by his oath deny or explain, his failure to testify in his own behalf raises a strong inference that he cannot truthfully deny or explain them.

8. No 52 of the Acts of 1935 held to be constitutional.

9. A motion to quash does not allow joinder of issues of fact depending upon the testimony of witnesses.

10. Upon petition for new trial based upon newly discovered evidence, the affidavits must be such as to indicate to the Court whether the action taken at the previous trial and the circumstances show the required diligence to have been exercised.

11. Under the long recognized rule that questions to a witness directed toward aiding the jury in setting a proper estimate on his testimony are preliminary in their nature and may properly be asked in direct examination, as, for example questions which relate to the age of the witness, his residence, his occupation and his condition in life, it is proper in direct examination to inquire of the witness as to his mental or language deficiencies and as to his previous criminal record.

PROSECUTION FOR ARSON. Trial by jury, Chittenden County Court, March Term, 1946, Cleary, J., presiding. The respondent was convicted of first degree arson.

Exceptions overruled and judgment affirmed. Let execution be done. Motion for new trial denied.

Frederick W. Wakefield for the respondent.

Clarke A. Gravel, State's Attorney, for the State.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is a prosecution for first degree arson. From a verdict and judgment of guilty the respondent has excepted.

Viewing the evidence most favorably to the State the following facts appeared: For a few months prior to April 29, 1946, the respondent and a Mrs. Bailey had been residing in a rented house in the City of Burlington. He owned the furniture and carried fire insurance upon it to the amount of $ 1000.00. Shortly after one o'clock in the morning of April 29, 1946, Mrs. Bailey came out of the house and immediately went back in, then she and the respondent came out, shut the door, and got into respondent's automobile standing in the driveway to the house, and backed the car out and in doing so bumped against a tree standing near the driveway hard enough to make a loud noise and to knock some bark off the tree. They then drove away. Within two or three minutes after they left, the house was observed to be on fire, and in a few minutes more a neighbor rang in a fire alarm which was received at the fire station at 1:28 A. M. The fire trucks came promptly, and the fire was put out after it had damaged the house to the amount of $ 300.00 and the furnishings to the amount of $ 200.00. The respondent and Mrs. Bailey returned after the fire had been put out, but before the fire trucks had left. The fire was in corner of a shed room of the house, where there was a bin that had had some fire wood and paper in it. In this room there were found a lot of paper, shavings, straw mats, an empty oil drum, and a full five gallon can of gasoline near where the fire had burned. There was nothing in the room that might of itself have started the fire. Early in the morning after the fire had been put out the respondent told the chief of the fire department that he was last in the house and left it between 8:30 and 9 o'clock of the previous evening. Mrs. Bailey told him that she left the house not later than 10:30 that evening. In the morning of the next day, April 30, the deputy State fire marshal came to the house and the respondent, in the presence of Mrs. Bailey, told him that in the afternoon of April 28, he and Mrs. Bailey were at the Sand Bar Bridge fishing, and while there met an acquaintance of his. They returned home in the vicinity of 7:30 or 8 in the evening, and cooked and ate their fish. They then left the house at around 9 o'clock to return to fishing at Sand Bar Bridge and to see if they could find this acquaintance, and when they didn't find him they decided it was too cold to go fishing and returned to Burlington, getting to the house after the fire was out and when the fire department was getting ready to leave. Mrs. Bailey corroborated this statement. In the evening of April 30, the respondent was sworn and questioned at an investigation conducted by the deputy fire marshal. When first so questioned he gave substantially the same account that he had given in the morning. Later, toward the close of the investigation, he voluntarily and freely changed his account of the happenings immediately before the fire, and testified that he did not leave the house on the evening before the fire at 9 o'clock and go fishing; that he was in the room adjacent to the living room and smelled smoke and Mrs. Bailey told him something was burning; that they both went out of the house immediately, jumped into the car, backed out of the drive way, striking the tree as they went, and drove away toward Mallets Bay. He testified that he did not ring in a fire alarm and made no attempt to telephone the fire department, and that he didn't know why he drove out to Mallets Bay after discovering the fire. He also testified that he had had some talk with an insurance adjuster, and that the loss on his furniture had been adjusted but not paid.

At the conclusion of the State's case the respondent moved for a directed verdict on the ground that there was no evidence that the respondent set the fire with the intention of setting it. The motion was overruled, subject to exception, and the respondent then rested without introducing any evidence.

The mere fact of the burning of a building is not sufficient to establish the corpus delicti, for if nothing more appears it will be presumed that the fire was the result of accident or some providential cause, rather than the result of a criminal design; but the incendiarism may be proved by circumstantial evidence. State v. Lizotte, 109 Vt. 378, 385, 197 A. 396. Since the evidence that the fire was incendiary and that the respondent set it is entirely circumstantial, the circumstances proved must do more than create a mere suspicion, however strong. State v. Goodhart, 112 Vt. 154, 158, 22 A.2d 151; State v. Foss, 110 Vt. 453, 458, 8 A.2d 648; State v. Rounds, 104 Vt. 442, 449, 160 A. 249. The circumstances shown must exclude every reasonable hypothesis except that the respondent is guilty. State v. Levy, 113 Vt. 459, 461, 35 A.2d 853; State v. Goodhard, supra; State v. Boudreau, 111 Vt. 351, 360, 16 A.2d 262; State v. Foss, supra; State v. Bean, 77 Vt. 384, 403, 60 A. 807.

The evidence tends to show that the respondent left the house hurriedly and drove away after he smelled smoke and was told that something was burning and stayed away until the fire was put out. When inquired of as to his whereabouts just before the fire he gave false answers. When asked why he drove out to Mallets Bay after he had discovered the fire he said he didn't know. These were incriminating circumstances and show a consciousness of guilt. State v Stacy, 104 Vt. 379, 407, 160 A. 257, 747; Girard v. Vt. Mut. Fire Ins. Co., 103 Vt. 330, 337, 338, 154 A. 666, cases of false statements as to whereabouts; and State v. Dugee, 101 Vt. 491, 494, 144 A. 689, a case of unexplained flight immediately after the commission of an alleged offense. Taking also into consideration that the house was observed to be on fire almost immediately after the respondent drove away, his indifference as to what would happen to the house, and that, although he owned the furniture upon which he carried insurance, he made no attempt to call the fire department or to put the fire out, and that in his...