State v. Duelks

• Decision Date: 13 April 1922
• Citation: 116 A. 865
• Parties: STATE v. DUELKS et ux.
• Court: New Jersey Supreme Court

116 A. 865

STATE

v. DUELKS et ux.

Supreme Court of New Jersey.

April 13, 1922.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Union County.

Peter Duelks and wife were convicted of arson, and they bring error. Affirmed.

Argued November term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Frank J. Burns, of Elizabeth, for plaintiffs in error.

Walter L. Hetfield, Jr., Prosecutor of the Pleas, of Plainfield, for the State.

PARKER, J. The defendants, husband and wife, were convicted on an indictment for arson, charging them with willfully and maliciously burning and causing to be burned the dwelling house of the said Peter Duelks and Catherine Duelks, then and there being. As the indictment originally read, the dwelling house was stated to be that of one Delmonte; the change, consented to by defendants, being apparently prompted by the fact that the dwelling house, though owned by Delmonte, was rented to and occupied by the defendants. The amendment of 1919 to section 123 of the Crimes Act (P. L. p. 257) enlarges the scope of the act by the words, "whether it [the dwelling house] be his own or that of another," so that the arson charged was in burning their own dwelling house. No doubt this change in the statute was due to the decision in State v. Lentz, 92 N. J. Law, 17, 107 Atl. 791.

The first point argued is that the court required defendants to go to trial without having been served in due course with a list of the state's witnesses. Section 54 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1837) requires, in cases of treason, the service of a copy of the indictment and a list of the jury and witnesses; but in cases of murder and certain other crimes, including arson, requires service of a copy of the indictment and list of the jury, saying nothing about witnesses. The language of the act is perfectly plain, and defendants' objection was clearly not well taken.

The next point relates to the exclusion of a question on cross-examination of one Pierson, a state's witness. Pierson testified that he had written a fire policy covering the personal property on the premises as agent for an insurance company, and the policy was received in evidence without objection. On cross-examination he stated that it did not strike him as unusual that $3,000 insurance was asked for, at the present time. He was then asked:

"Q. You had no doubts in your mind at the time you wrote the policy but that there were $3,000 worth of property?"

This was objected to and excluded, and we think properly, as what he may have thought at the time of insuring was quite irrelevant to the issue on trial. It is argued that the state claimed overinsurance as a motive, and that the answer might have tended to negative the theory of overinsurance; but the answer to this is that the opinion of the agent or broker at the time of insuring was not competent as an index of actual value.

The next point arose on the cross-examination of Mr. Brewster, chief of the local fire department, who testified on direct examination that during, and especially after, the fire he had examined the furniture and other contents of the house, and found oil-soaked mattresses, clothes with oil or gasoline on them, signs of gasoline in the closets and in various parts of the house, pig bladders and automobile inner tubes filled with gasoline or inflammable oil; also other matters apparently indicating preparation. On cross-examination he testified that these preparations must have taken "quite some time"; that he did not think it could have been done in half an hour; asked if it would consume an hour, working continuously, he answered:

"That I couldn't say. Q. I am asking you; you are in a better position than I and the jurymen."

This was objected to, as the chief had not qualified as an expert, and excluded. We incline to agree that he was not shown an expert on incendiarism, but a better answer to the argument now made is that the question had been answered once, and that was enough.

The next point relates to the testimony of Philip Feuerstein, a professional insurance adjuster and appraiser of fire losses with nearly 20 years' experience. He was asked to put a valuation on a bed and mattress at the place in question, and this was objected to. He was cross-examined on his qualifications, and plainly appeared fully qualified so far as related to disputes and settlements between the insurer and insured, but the objection was pressed on the ground that he was not qualified for purposes of trial of a criminal indictment. We are quite unable to see how this affects his qualifications; if he was an expert on such valuations for any legal purpose, his qualification was valid in any judicial investigation in which he might be called.

The fifth point argued also bears on the matter of value of some of the burned property. Defendant Peter Duelks was asked on cross-examination what he had paid for certain furniture several years previous to the trial. This was objected to, and the objection overruled, and it is claimed that the value of the property several years before writing the policy is not competent on the question of value at the time the policy was written. But we think the rule is settled to the contrary. In Luse v. Jones, 39 N. J. Law, 707, in the Court of Errors and Appeals, Justice Dixon, speaking for the court, said:

"The first exception insisted upon is, that the plaintiff was allowed to prove the cost of a bedstead, as tending to show its value. This cost was the price at which a regular dealer in such articles had sold it when new, in the ordinary course of trade. A sale so made was evidence of the market value of the thing when new, and the value of such goods when worn can scarcely be ascertained, except by reference to the former price and the extent of depreciation. Of course, the cost alone would not be a just criterion of the present value, but it would constitute one element in such a criterion, and the attention of the jury in this case was clearly directed to the importance which it deserved to have."

So, in Budd v. Van Orden, 33 N. J. Eq. 143, at pages 146, 147, Vice Chancellor Van Fleet, said:

"The only absolute test we can have of the value of a merchantable article is what it has been sold for at a fair sale. All other means of ascertaining the value of a merchantable commodity are speculative, and must, to a greater or less extent, be uncertain."

And in Goodman v. Lehigh Valley Railroad Co., 82 N. J. Law, 450, at page 456, 81 Atl. 848, at page 851, in the Court of Errors and Appeals, where the value of certain buildings was in question, the court said:

"The evidence as to cost of the farm buildings was clearly admissible on the question of damages. Of course, the cost was not the measure of damages, but such cost is a fact to be considered in ascertaining the fair value of the buildings at the time of the fire and from that the depreciation in value of the farm by reason of the fire."

Such is also the rule in New York, as laid down in Jones v. Morgan, 90 N. Y. 4, at page 10, 43 Am. Rep. 131, where the cost of furniture bought in 1868 and 1869 was held evidential on the question of its value in 1875. The period over which the inquiry may be extended is ordinarily within the sound discretion of the court. Montclair Railway Co. v. Benson, 36 N. J. Law, 557. See, also, 22 C. J. 183, § 135. The questions were entirely competent.

The sixth point argued relates to the cross-examination of defendant Peter, tending to show a previous conviction of crime, for the purpose of affecting his credit, as contemplated by section 1 of the Evidence Act (C. S. p. 2217). The question asked was this:

"Q. Mr. Duelks, you were under indictment for the crime of receiving stolen goods in October, 1920; and didn't you enter a plea of non vult to this crime, and the verdict of this court was that it imposed a fine of $150?"

The attack is on the inclusion of the clause relating to the fine, and it is said that it was improper to put this before the jury. It is true that it was unnecessary to prove the sentence as part of the "conviction" (State v. Henson, 66 N. J. Law, 601, 607, 50 Atl. 468, 616; Hill v. Maxwell, 77 N. J. Law, 766, 73 Atl. 501; State v. Runyon, 93 N. J. Law, 16, 107 Atl. 33,109 Atl. 925; Id.,...