State v. Crosby

• Decision Date: 12 April 1958
• Docket Number: No. 40844,40844
• Citation: 182 Kan. 677,324 P.2d 197,76 A.L.R.2d 514
• Parties: , 76 A.L.R.2d 514 STATE of Kansas, Appellee, v. Lester L. CROSBY, Appellant.
• Court: Kansas Supreme Court

Page 197

324 P.2d 197

182 Kan. 677, 76 A.L.R.2d 514

STATE of Kansas, Appellee, v. Lester L. CROSBY, Appellant.

No. 40844.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court

1. It is a fundamental rule of law that a criminal statute is to be strictly construed and is not to be extended by courts to embrace acts or conduct not clearly included within its prohibitions.

2. Real property upon which there is a mortgage is not the 'property' of the mortgagee within the meaning of our arson statute (G.S.1949, 21-581) which makes it a criminal offense to willfully set fire to or burn 'the property of another person.'

3. A mortgagor of real property who willfully sets fire to or burns the mortgaged property is not guilty of the offense of arson as defined by G.S.1949, 21-581--that is to say, he is not guilty of setting fire to or burning 'the property of another person.'

4. On appellate review of a conviction of a criminal offense the fact that incriminating circumstantial evidence might also be deemed compatible with innocence is not controlling, and the question before this court is not whether such evidence is incompatible with any reasonable hypothesis except guilt. That is a question for the jury and the trial court, and this court's function is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt.

5. It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court.

6. In a prosecution for arson in which defendant was convicted on count one which charged him with the willful burning of the property of another person as defined by G.S.1949, 21-581, and on count two in which he was charged with burning the property with the intent to injure or defraud the insurers thereof as defined by G.S.1949, 21-584, the record is examined and, all as fully set forth in the opinion, it is held: (1) Count one does not state a public offense and proceedings thereunder are reversed and set aside; (2) alleged errors relating to proceedings with respect to the conviction on count two are without merit, and (3) the judgment with respect to that count is affirmed.

Don W. Noah, Beloit, argued the cause, and Eugene P. Zuspann, Goodland, and Ralph H. Noah, Beloit, were with him on the briefs for appellant.

Robert J. Roth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., and Thomas H. Taggart, County Atty., Goodland, were with him on the briefs for appellee.

PRICE, Justice.

Defendant was charged with and convicted on two counts of arson, and has appealed.

The first count charged him with burning the property of another. The second count charged him with burning the property with intent to defraud the insurers.

All statutory references, unless otherwise indicated, are to G.S.1949.

21-581 provides:

'That any person who willfully sets fire to or burns * * * any dwelling house, * * * such property being the property of another person, shall be guilty of arson in the first degree. * * *'

Count one reads:

'That on or about the 13th day of February, 1956, in the County of Sherman and State of Kansas, Lester L. Crosby did then and there unlawfully, wilfully and feloniously set fire to and burn a certain dwelling house located at 402 East 12th Street in the City of Goodland, in said county and state, said dwelling house being the property of the Goodland Savings and Loan Association of Goodland, Kansas, by virtue of certain real estate mortgage dated December 1, 1953, and recorded at page 162 Mortgage Record 41, in the office of the Register of Deeds of Sherman County, Kansas, whereby said Lester L. Crosby did mortgage and convey the aforesaid dwelling house to said Goodland Savings and Loan Association, in violation of Section 21-581 of the 1949 General Statutes of Kansas.'

21-584 provides:

'That any person who willfully and with intent to injure or defraud the insurer sets fire to or burns * * * any building, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felony * * *'

Count two reads:

'That on or about the 13th day of February, 1956, in the County of Sherman and State of Kansas, Lester L. Crosby did then and there unlawfully, wilfully and feloniously, with the intent to injure or defraud the insurers, set fire to and burn a dwelling house and personal property therein, located at 402 East 12th Street, in the City of Goodland, in said county and state, which said property was at the time insured against loss or damage by fire by the Phoenix Insurance Company of Hartford, Connecticut; The Midland Mutual Fire Insurance Company of Newton, Kansas; and The State Farm Fire and Casualty Company of Bloomington, Illinois, in violation of Section 21-584 of the 1949 General Statutes of Kansas.'

With respect to count one, it is not disputed that the dwelling house in question was owned by and was in the possession of defendant. On December 1, 1953, he and his wife executed a note in the amount of $10,000 to the Goodland Savings and Loan Association, due in five years, with annual principal payments of $750, and gave as security therefor a first mortgage on the house. As of the date of the fire no part of the principal amount of the note had been paid and the mortgage was in full force and effect.

With respect to matters contained in count two, it is not disputed that as of the date of the fire, February 13, 1956, the following insurance policies, which covered loss by fire, were in effect:

A $2,000 policy with Phoenix, dated May 7, 1955, for a term of one year, on the contents of the house.

A $12,000 policy with Midland Mutual, dated May 4, 1955, for a term of one year, on the house.

A $12,000 policy with State Farm, dated March 7, 1955, for a term of one year, on the house.

In addition to the foregoing, the evidence, highly summarized, established substantially the following facts:

Defendant and his wife had been married for twenty-six years and for some time had operated a business in Goodland known as 'Crosby's Corner' which consisted of a soda fountain, lunch counter, cosmetics and so forth. They and their 14-year-old daughter resided in the house in question which had been built in 1951 at a cost of almost $27,000. It was four blocks from their place of business. For about three years it had been listed for sale with a $35,000 price tag. An offer of $30,000 had been received but had not been accepted. Shortly before the fire the mortgagee mentioned in count one had notified defendant that it was expecting him to make payment of the $750 annual principal payments on the note then delinquent, and that if such was not done in the immediate future foreclosure of the mortgage was threatened. Payments of interest on the note were not delinquent. Defendant and his wife were not involved in marital difficulties. Their business was not particularly prosperous, but, other than the fact concerning the note and mortgage on the house, defendant was in no acute financial difficulty. The house and its contents were not overinsured.

About four o'clock in the morning of February 13, 1956, neighbors smelled smoke and discovered the fire in the house. The fire department responded immediately. All doors and windows were found to be locked. After gaining entrance the firemen discovered an intense fire in the attic and the entire room was a solid blaze. Almost simultaneously two fires were discovered in the basement, one in the ceiling and one in a small closet under the stairway. These fires were separate and distinct. Also, there was no connection between them and the one in the attic. Gasoline odors were detected in the basement and while attempting to extinguish the basement fires the firemen got 'flares' or 'flash-backs,' which are peculiar to gasoline fires.

The fires were extinguished within an hour. The house was securely locked and police were called to stand guard. The next day a deputy state fire marshal and the fire chief commenced an investigation. No defects were found in the electric wiring or in the gas furnace connections. Samples of wood were taken from places close to where the blazes had been and were found by experts in the field to contain gasoline. The same was true of bedding and other cloth materials removed from a trunk in the basement. A gasoline-powered lawn mower was in the basement. The cap on its gasoline tank had not been removed. Considerable water had poured into the basement in extinguishing the fires. No portion of the attic floor was burned through and there was no fire whatever on the first floor of the house. Prior to the fire no clothing, keepsakes or other valuables had been removed from the house.

Two days after the fire defendant was questioned by the county attorney in the presence of the sheriff and the deputy state fire marshal. The gist of his statement to the officers was as follows:

On the day and evening before the fire he had been working at his store and that night intended to go to Hays, where his wife and daughter were visiting. The evening was chilly, and noticing that he had forgotten his topcoat, he walked from his store to his house to get it about 9:40 P.M. Upon opening the rear door he smelled smoke. He turned on the lights and saw smoke. He got his coat, turned off the lights, and did not use the telephone which was a few feet away. He locked the rear door and started for his store with the intention of calling police to...