State v. Baker.

• Decision Date: 24 May 1947
• Docket Number: No. 329.,329.
• Parties: STATE v. BAKER.
• Court: Vermont Supreme Court

53 A.2d 53

STATE

v.BAKER.

No. 329.

Supreme Court of Vermont.

May 6, 1947.

Reargument Denied May 24, 1947.

Exceptions from Chittenden County Court; Cleary, Judge.

Fred Baker was convicted of first-degree arson, and he brings exceptions.

Exceptions overruled, judgment affirmed and motion for new trial denied.

MOULTON, C. J., and JEFFORDS, J., dissenting.

Clarke A. Gravel, State's Atty., of Burlington, for the State.

Frederick W. Wakefield, Jr., of Burlington, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

SHERBURNE, Justice.

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 $1,000. Shortly after 1 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 and the furnishings to the amount of $200. The respondent and Mrs. Bailey returned after the fire had been put out, but before the fire trucks had left. The fire was in a 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. Goodhart, 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. Vermont 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 haste to get away he backed into the tree, and also the location and the nature of the fire and the inflammable nature of the things near the fire, we think that the circumstances create more than a mere suspicion, and that they exclude every reasonable hypothesis except that the fire was incendiary and that the respondent is guilty of setting it. The motion for a directed verdict was properly denied.

During argument the State's Attorney commented upon the failure of the respondent to testify, and the court charged the jury that, ‘although the respondent does not have to take the stand unless he sees fit to do so, if he fails to testify, that may be a matter of comment to the jury and the jury may draw reasonable inferences therefrom.’ To such argument and charge the respondent excepted. He claims that our statute allowing comment contravenes Chapter I, Article 10 of our Constitution, ‘That in all prosecutions for criminal offenses, a person hath a right to be heard by himself and his counsel; * * * nor can he be compelled to give evidence against himself; * * *’.

The foregoing provisions of our Constitution, except for the substitution of the word ‘person’ for the word ‘man’ in 1793, were incorporated into our first Constitution in 1777. By No. 40 of the Acts of 1866, it was provided: ‘In the trial of all indictments, complaints, informations and other proceedings against persons charged with crimes or offenses, the person so charged shall, at his own request and not otherwise, be deemed a competent witness, the credit to be given to his testimony being left solely to the jury, under the instructions of the court; but the refusal of such person to testify shall not be considered by the jury as evidence against him.’

Before the enactment of this Act a respondent on trial in this State was not a competent witness. The provisions of this Act without material change have been retained in all subsequent revisions of our statutes, and were re-enacted by P.L. 2383. In May, 1931, the American Law Institute by a vote of 91 to 53 approved a resolution that ‘the judge, the prosecuting attorney and counsel for the defense may comment of the fact that the defendant did not testify.’ Vol. IX of Proceedings, pages 202 to 218. At the annual meeting of the American Bar Association held in September, 1931, a law was recommended by a vote of 280 to 183 by which the prosecution would be permitted to comment to the jury on the fact that the defendant did not take the stand as a witness. 56 Reports of American Bar Association, pages 137 to 159. At the 1934 meeting of the Association the matter was again taken up, and a law was recommended permitting court and counsel to comment to the jury on the failure of a defendant in a criminal case to testify in his own behalf. 59 Reports of American Bar Association, pages 130 to 141. At the 1934 meeting of the Vermont Bar Association its legislative committee referred to the action recommended by the American Bar Association, and recommended that P.L. 2383 should be amended to read substantially as it was amended at the next session of the General Assembly by No. 52 of the Acts of 1935. This recommendation was adopted. 28 Vermont Bar Association Proceedings, ...