State v. Gebhart.
| Citation | 70 W.Va. 232 |
| Parties | State v. Gebhart. |
| Decision Date | 30 January 1912 |
| Court | West Virginia Supreme Court |
1. Arson Criminal Prosecution Sufficiency of Evidence.
A case involving circumstantial evidence discussed, and the evidence held to be sufficient to warrant a verdict of guilty, (D. 233).
2. Criminal Law Writ of Error.
Error which, works no prejudice to the party complaining, is not cause for reversal, (p. 246).
3. Former Decisions Followed.
Insufficiency of affidavits in support of a motion for a new trial, discussed. Points of syllabi in Jacobs v. Williams, 67 W. Va. 377, State v. Slowers, 66 W. Va. 198, and State v. Huffman, 69 W. Va. 779, 73 S. E. 292, on this subject, approved and applied, (p. 247).
If the court is asked to strike out certain improper evidence that has gotten before the jury, and does so, and states in the presence of the jury that it is stricken out, specifying the part stricken out, it is not indispensable that he should expressly tell the jury not to consider it as evidence. This Court will presume that the jury understood that they were not to regard such evidence in arriving at their verdict, and that they did not. (p. 242).
Error to Circuit Court, Nicholas County.
Charles Gebhart was convicted of arson, and brings error.
Affirmed,
John B. Morrison, Linn & Byrne and Edward, A. Brannon, for plaintiff in error.
William G. Gonley, Attorney General, and J. 0. Henson, Assistant Attorney General, for the State.
Charles Gebhart was convicted, of arson in the circuit court of Nicholas county, October 29, 1910, and sentenced to confinement in the penitentiary for an indeterminate period of time, ranging from one to ten years. On his petition a writ of error was granted at the June term 1911.
He was charged with having set fire to the building in which he conducted a mercantile business, in the Town of Richwood, for the purpose of injuring and defrauding certain fire insurance companies that had insured his stock of merchandise and household furniture against loss by fire. The evidence is voluminous and circumstantial in character. The building was a frame structure, 28x100 feet, and one story in height. It rested on posts, and a storage room was formed underneath by weather boarding being nailed to the posts on which the building stood. Small rooms were partitioned off, at the back end, and were occupied by defendant and his family as a dwelling place, and the front part of it was used as a store room. The family consisted of defendant, his wife and four children, the oldest being fifteen, and the youngest four years old.
The fire originated in the basement, and was discovered about four o'clock on Monday morning, August 8th, the alarm was given and the fire extinguished before the building, or any of the goods were consumed, but not until it had burned through the floor in one or two places, and had very much charred the joists underneath the floor.
1 On Sunday, the day before the fire, the Baltimore & Ohio Railroad ran an excursion train from Richwood to Clarksburg and return, and defendant and his wife had planned to go on this excursion. For some reason, however, defendant did not go, but remained at home with his children, and Mrs. Gebhart went in company with Mr. and Mrs. Andrews, friends who lived just across the street from the Gebharts. The train was due to return at 12 o'clock midnight, but did not arrive until something near 1:30, Monday morning. Defendant and his two daughters, Lillie and Thelma, did not retire but remained up to meet the folks returning from the excursion. Defendant had prepared a lunch for them, and on their arrival they all went into the Gebhart dwelling by way of the front door of the store room, which was the main entrance to the dwelling apartments, as well as to the store room, and partook of the lunch. After this, Mr. and Mrs. Andrews went to their home across the street, and defendant and his family retired. Jerome Gebhart did not remain up, but went to bed early in the night with his little brother, and was asleep until after the train came in. Defendant slept by himself, on a cot or lounge, near the door which opened our, and near to a little back porch from which a stairway led down to the basement door.
About four o'clock Mrs. Gebhart was awakened by the presence of dense smoke in her bedroom, and immediately aroused the family, and they all came out by way of the front door, Jerome being the first one to get to the door and unlock it. There is much testimony to prove that defendant was dressed and had his shoes on, while the other members of the family were in their night ' dress, or had something loosely thrown around them.
In order to sustain the charge of arson two essential facts must be proven: (1) That the fire was of incendiary origin; and (2) the identity of the incendiary. In the present case it is admitted that the fire was not an accident. Every material circumstance in the case points to the fact that the fire was of incendiary origin. Indeed, the theory of the state, borne out by the facts and circumstances testified to by numerous witnesses, is that defendant deliberately planned to make it appear as if some one had broken into the basement and set fire to the house with the intention not only to burn his stoie but himself1 arid family as well, and then set fire to it himself. And the theory of the defense is that the fire was started by one Sadie Bennett, whom defendant was instrumental in having arrested a week, or such time, before the fire on the charge of keeping a bawdy house. There is no evidence to connect Sadie Bennett with the crime, although suspicion, for a while, rested on her, because of-defendant's declarations to several persons before the fire that he feared she would do him harm. She lived in an adjoining building.
The evidence of defendant's guilt is wholly circumstantial. 'No one saw him set the fire. But the following facts are strongly supported by testimony of many witnesses for the state, and some of them by witnesses for defendant as well, and from thorn the jury could very property find defendant guilty.
At the time of the fire defendant had his stock of goods insured to the amount of $6,000 and his household effects to the amount of $500. There was also insurance on the building, which belonged to defendant's brother, Joel Gebhart, to the amount of $2,000. About four weeks befcre the fire defendant advertised a "Special Clearance Sale," and conducted this sale up to the very day before the fire. Defendant himself says that this sale was very successful, and that his sales, during this time, ranged from $200 to $300' a day. An inventory of the stock of goods, taken by the state, shortly after the fire
showed the value of the stock, at the date of the fire, to be much less than the amount of the insurance.
The basement extends the full length of the building, and boxes were ricked up under the store room, not under the dwelling rooms, and the fire appears to have originated in these boxes, but did not entirely consume them. An empty oil can, or two, were found in the basement, which were shown to have contained kerosene oil, and a couple of Hayner's whiskey bottles, containing kerosene oil, were also found in an old cabinet in the basement. Defendant admits that he had Hayner's whiskey bottles, and that some of them may have been in the basement. The door to the basement was at the back end of the building, and was kept locked with a padlock. Defendant's son Jerome testified that he was in the basement, preparing kindling wood, on the Saturday evening before the fire, and that when he came out he locked the door. There is no evidence that anyone was in the basement after that time, until the night of the fire. After the fire the door to the basement presented the appearance of having been broken open. The bow, or shackle, of the padlock, was twisted, so that the loose end of it would not go in place in the lock. Defendant turned the lock and key over to the fire marshal who had the lock opened and examined by a silversmith in the town of Eichwood. This silversmith was a witness, and testified that the inside mechanism of the lock ha not been broken, or disturbed. The lock itself was also in evidence. The jury must have concluded, from this evidence, that the basement was entered by means of a key to the lock, and that the shackle was afterwards twisted., to create the impression that the cellar had been broken into.
The rope connecting with the bell on the hose house was cut off, so high up from the floor that a man of ordinary height, standing on the floor, could not reach it. The fire plug wrenches which were in a box on the hose cart in the hose house, could not be found at the time of the fire, and were found a short time afterwards, hidden on the outside of the hose house underneath a hole in the wall, where they had apparently been dropped through from the inside. There was an empty box in the hose house, about two or three feet high, which could have been used by some one to stand on, in order to reach the point where the rope was cut. This box was, in fact, used by the man who rang the bell to give the alarm of fire. From the following facts and circumstances, and other evidences in the ease, the jury were justified in believing that defendant himself cut the bell rope. One John Milam had been arrested for disorderly conduct on Sunday, and placed in the lockup. The lockup stood just back of the hose house. Milam was anxiously looking for the sergeant to release him from prison that night. He was examined as a witness, and testified that, late in the night, about eleven or twelve o'clock, he heard someone in the hose house, and heard something drop that sounded like a piece of iron, and that he thought it was the officer coming to release him. But when he, a little later, heard...
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