State v. Caliendo

• Decision Date: 16 March 1939
• Citation: 4 A.2d 837
• Parties: STATE v. CALIENDO.
• Court: Maine Supreme Court

4 A.2d 837

STATE

v. CALIENDO.

Supreme Judicial Court of Maine.

March 16, 1939.

Appeal from Superior Court, Oxford County.

James V. Caliendo was convicted of arson, and he appeals. Appeal sustained.

Argued before DUNN, C. J, and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Robert T. Smith, Co. Atty, of South Paris, for the State.

Aretas E. Stearns, of Rumford, for respondent.

STURGIS, Justice.

At the June Term, 1938, of the Superior Court for Oxford County the respondent was tried for arson and found guilty. After verdict, his motion for a new trial, addressed to the presiding justice, was denied and his appeal from that ruling is before the Law Court. The question presented is whether upon all the evidence the jury were warranted in finding beyond a reasonable doubt that the respondent was guilty of the crime charged in the indictment.

The printed case brought forward with the Appeal shows that just before one o'clock in the morning of March 26, 1938, fires were discovered in the barroom and kitchen which respondent operated in connection with his barber shop on the street floor of the three-story building situated on Bridge Street in Mexico and owned by Annie Caliendo, his wife. The second floor of the building was let to a tenant for dwelling-house purposes. The rooms in the upper story were not in use at the time of the fire.

When the firemen arrived and forced their way into the building with a fire hose, they found a beer case partially filled with rubbish, cloths and towels burning in the barroom and a similar case containing burlap, towels and charred paper on fire in the kitchen which adjoined the barroom. An examination of the cases and their contents disclosed that they had been saturated with range oil or kerosene and beside one there was oily glass from a broken milk bottle. The fire in the kitchen had burned through the floor and into the timbers below, and the woodwork against which the case in the barroom was driven when the stream from the fire hose struck it was blazing. The fires were promptly extinguished, however, and no great damage to the building or its contents resulted.

It is clearly apparent from the evidence that the fires had not been burning for any great length of time before they were discovered and the alarm given. The saturated beer cases and the rubbish in them were highly inflammable and must have burned rapidly when ignited. No candle, fuse, contrivance or device of any sort designed to produce delayed ignition was found in or about the beer cases or the premises. The tenant and his wife, who lived in the second floor rent, returned from the pictures just after midnight, passed by one of the windows in the respondent's barroom as they went up the outside stairs at the back of the building, and saw no signs of fire. About twenty minutes later, as this tenant sat in his bedroom smoking, he heard a noise downstairs and, becoming uneasy, went out into the kitchen to investigate, but heard nothing and returned. In another twenty minutes, he smelled oil burning and again going into the kitchen was met with a spout of smoke coming from below. Waking his wife, they hurried down the outside stairs over which they had come up an hour earlier and as they passed the barroom window saw flames inside rising to the ceiling. He ran to the nearest firebox and rang in an alarm. His wife sought refuge at the home of a neighbor.

The respondent, through his counsel, conceded that the fires were of incendiary origin but denies that he directly or indirectly set them. He is supported by witnesses for the prosecution in his assertion that he left his shop and barroom just before midnight and practically an hour before the fire broke out, and at that time neither of the oil-saturated beer cases of rubbish were in the places where they were found by the firemen or on fire. All through the evening, patrons had been in and about both the barber shop and the barroom, and at no time was he there alone with opportunity to place and prepare the cases. He rode home from the shop in his truck taking one Ramsey, who was in there when he closed up, to the corner of the street on which he lived and then he drove directly to his own house. His departure for and his arrival at his home is verified by an apparently credible and intelligent witness who was passing the barber shop when he and Ramsey rode away and, having traveled by a short and direct route, was at the respondent's driveway when he rode in there, got out of his truck and went up over the steps to his back door. The respondent's daughter, a school teacher, heard her father drive into the yard with his truck, come into the house and go upstairs. Being unable to retire on account of the illness of a young nephew, she was up and about the house, heard her father snoring and is positive that he did not leave the house after he came in. A little after one o'clock, receiving a telephone message informing her that the shop and barroom were on fire, she notified her father, who immediately dressed and accompanied her down to the shop.

The evidence against the respondent is purely circumstantial. No one saw him at or near the building which was burned after he closed up his barber shop and left for home, nor is there any direct proof that he left his house again until he and his daughter came down to the fire in response to the telephone call. No more is it shown that the respondent at any time possessed any means, contrivance or device for setting fires by delayed ignition. He did have the only keys known to be in existence which fitted the door of the barber shop and permitted entrance to all of the rooms on the street floor of the building. The back door was locked and the key had been lost. He had locked the front door when he left the shop just before midnight and took the key away with him. The firemen, when they arrived, found one of the windows in the barroom locked and it was broken open when the hose was run into the room. No one seems to know whether the other barroom window was locked or not. One of the windows in the kitchen was fastened with a bar diagonally across the upper sash and the other window in that room was partially boarded up. There was a window opening from the outside into a toilet, of rather small dimensions but large enough for a person to crawl through as had been done on one occasion before the fire when the store was broken into. Although ready access from...