State v. Billberg

• Decision Date: 18 February 1941
• Docket Number: No. 45395.,45395.
• Citation: 229 Iowa 1208,296 N.W. 396
• Parties: STATE v. BILLBERG.
• Court: Iowa Supreme Court

229 Iowa 1208

296 N.W. 396

STATE

v.BILLBERG.

No. 45395.

Supreme Court of Iowa.

Feb. 18, 1941.

Appeal from District Court, Appanoose County; Charles F. Wennerstrum, Judge.

Upon trial to a jury defendant was convicted of the crime of arson and appeals. Opinion states the facts.

Affirmed.

Purley Rinker, of Centerville, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and C. L. Johnston, Co. Atty., and E. L. Simmons, Sp. Prosecutor, both of Centerville, for appellee.

OLIVER, Justice.

The indictment charged that on March 23, 1940, appellant, W. O. Billberg, “did wilfully and maliciously burn a building known as the Home Oil Station, the propertyof himself” contrary to Section 12991.2, Code of 1939. Trial to a jury resulted in conviction and this appeal.

I. In passing upon the errors assigned we will first consider the one directed to the sufficiency of the evidence relied upon by the State to justify the submission of the case to the jury. Appellant had purchased the buildings and equipment on leased ground in 1930, and continuously operated the automobile service station thereon till the fire on March 23, 1940, at 3:45 a. m. Soon after he purchased the service station he transferred it to an employee, L. J. Davis, in whose name it remained until about two months before the fire. Davis gave appellant a mortgage on the property for which there was no consideration. The purpose of this transfer was to “get out from under” a contract which appellant regarded as unfair. However, appellant testified Davis was the owner of the property during the time he held title and that Davis hired appellant as manager and paid him $25 weekly salary and all the profits while Davis received $25 weekly salary.

The property appears to have been kept insured in appellant's name and at the time of the fire, there were two policies thereon, payable to appellant, aggregating $11,800. Witnesses for the State testified this was in excess of its value, and that in 1937, appellant offered it for sale for $7,500. Appellant admitted that the profits of the business had been going down for the past few months and had not been good. There was evidence he was having difficulty meeting some of his financial obligations. The grease-rack room was not high enough to permit greasing large trucks therein. The stock of gasoline was low and Eddie Palmer, an employee of appellant, had loaded into a small truck much of the merchandise kept at the station, consisting of tires, tubes, cans of oil, supplies, etc., and some of the tools, and at about 3 a. m. had hauled the same to appellant's warehouse. One box of tubes apparently was lost in the street during the trip and the other merchandise appears to have been piled in a corner of the warehouse, while some of the tools were found by the police at about 5 a. m. under the warehouse floor in which there was a broken place. Among other things found in the warehouse was a tire and wheel which had been left with appellant by a customer the evening before for repair and which had not been repaired. Appellant had previously instructed Palmer to remove the merchandise to the warehouse.

The fire started at 3:45 a. m. with an explosion in the grease-rack room, at the north end of the building. It did not start in the pumps or tanks. The office was in another part of the building. Paul Jones, a trucker, and Dave Johnson, an unemployed man, were sleeping on the floor in the office at the time. Johnson had gone to sleep in the grease-rack room, and about 1 a. m. defendant awakened him, gave him a drink of liquor and told him to go into the office and sleep. A motorist who attempted to secure storage in the station for his automobile about 1 or 1:30 a. m. was unable to do so.

When the fire started appellant was the only person at the station except the two men sleeping in the office. A few seconds later a witness saw a man with a bucket in his hand getting up from the driveway. It is the State's theory that appellant used a five-gallon bucket afterwards found in the driveway to carry gasoline with which he caused the explosion and fire. Appellant received a burn on one leg below the knee. The defense contends Palmer had accidentally spilled gasoline in the grease-rack room about one hour before the fire, and that the explosion and fire resulted from its accidental ignition.

Appellant gave varying accounts of the occurrences. The morning after the fire he made a written statement in which he said that when the crash came Palmer was driving into the driveway after returning a tire which he had just repaired and taken out; that appellant was walking north alongside the station; that his first thought concerned a jug of whiskey in the washroom and that he ran out there and got that. At the trial he testified he was out on the parking looking for Palmer (who had not returned from hauling the goods to the warehouse) when the explosion came; that he was blown into the middle of the street; that he started into the office to rouse the sleeping men and met one of them coming out; that he seized a couple of fire extinguishers and ran up the drive to the grease-rack room, saw that would do no good, got into his car and started to a telephone. He testified he didn't see Palmer after the fire started. He drove to the Maple Inn just around the corner and heard the fire truck, but it was apparently about fifteen minutes before he arrived at the Maple Inn. He waited there a few minutes, then called a doctor to treat the burn on his leg. While waiting for the doctor he drove home and took some empty egg cases out of his car; returned to the doctor's office, then remained home until about 7 a. m. The two men who had been sleeping in the station departed with employee Palmer immediately upon his return from the warehouse, went to Palmer's home and remained there. Neither appellant nor any of the others were in the vicinity when the police arrived two or three minutes after the explosion, or at any time thereafter while the building was burning. The grease-rack room at the north end of the building and the stock room immediately south of it were destroyed before the fire was extinguished.

[1] The foregoing statement omits many details in the record. There was also conflicting evidence. We are satisfied that the evidence, as a whole, was sufficient to sustain the verdict and that the court did not err in overruling the motion to direct.

II. Appellant's first assignment of error is that the court permitted the ownership of the building to be proved by parol evidence, over objections that the same was secondary evidence. The complaint concerns testimony of Mr. Krapfel that he (Krapfel) owned the land, which appellant rented from him and occupied under a written lease introduced in evidence, and that appellant owned the building and had so advised Krapfel.

Appellant contends the State was required to prove the ownership of the land by record title, or written instruments. With this contention we do not agree. The title to the land was not here directly involved though evidence of Krapfel's ownership of the land and the lease to appellant was relevant as throwing light upon whether the building was the property of appellant. That was the issue to which the evidence was directed.

Code, Section 13732.11 provides that an allegation in an indictment of ownership of property is supported by proof of possession or right of possession of such property.

[2] Prior to the enactment of this statute, in 1929, the rule appears to have been substantially the same. State v. McCray, 189 Iowa 1239, 179 N.W. 627;State v. Archibald, 208 Iowa 1139, 226 N.W. 186. Obviously, written or record proof of title to the land or ownership of the building was not here required.

[3] But had the rulings admitting this evidence been incorrect the error would not have been prejudicial. Appellant himself later testified, “I was the owner of the building of the Home Oil Station on March 23, 1940.” That he did own, possess and operate this station was shown by his own testimony. There was no contention, evidence or intimation to the contrary.

[4] III. Connected with the foregoing is the contention that instructions 3 and 12 were erroneous in failing to advise the jury that one of the material allegations of the indictment and one of the elements which the State was required to prove beyond a reasonable doubt was that the Home Oil Station was the property of appellant. The State argues this was sufficiently covered elsewhere in the instructions. This justification for the omissions need not be here considered because in omitting this element the instructions given by the court accorded with instructions requested by appellant. Therefore, he may not complain of the omission.

[5] Furthermore, before the evidence was concluded, appellant's ownership had ceased to be a real issue. It was established without controversy by the testimony of appellant and was not disputed by other evidence which touched that point. Under such circumstances the failure to include this element in the instructions would not constitute reversible error. State v. Chumley, Iowa, 294 N.W. 764;State v. Evans, Iowa, 295 N.W. 433.

IV. Eddie Palmer, an employee of appellant, who had testified before the Grand Jury on the indictment was a witness for the State. Upon direct examination by the State he testified that, under instructions from appellant, he loaded certain tires, tubes, supplies, tools, etc., in a truck and took them from the oil station to appellant's warehouse at about 3 a. m. approximately forty minutes before the fire.

Apparently his testimony at the trial differed from that before the Grand Jury. Asked if he hadn't testified before the Grand Jury that thirty-five or forty tubes instead of twenty-five or thirty were taken to the warehouse he said he had so testified. Then he was asked several questions-Now to refresh your recollection, do you “remember of...