State v. Goodhart, 1694.

• Decision Date: 07 October 1941
• Docket Number: No. 1694.,1694.
• Citation: 22 A.2d 151,112 Vt. 154
• Parties: STATE v. GOODHART.
• Court: Vermont Supreme Court

22 A.2d 151

112 Vt. 154

STATE

v. GOODHART.

No. 1694.

Supreme Court of Vermont. Washington.

Oct. 7, 1941.

Exceptions from Washington County Court; Charles A. Shields, Judge.

Rozer Goodhart was convicted of arson in the first degree, and he brings exceptions.

Judgment reversed, conviction and sentence set aside, and respondent discharged.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Reginald T. Abare, of Barre, for the State.

Raymond B. Daniels, of Montpelier, for respondent.

BUTTLES, Justice.

The respondent was convicted in County Court of the crime of arson in the first degree in wilfully and maliciously burning the house and barn of Edward McCall in Cabot, Vermont, in the early morning of December 2, 1940. He has brought the case here on exceptions, one of which was taken to the denial by the trial court of respondent's motion for a directed verdict of not guilty, made at the close of the State's case and renewed at the close of all the evidence. The grounds upon which this motion was based were, in substance, (1) that there was no evidence from which the jury could find the corpus delicti, in other words that the fire was of incendiary origin, and (2) that there was no evidence from which the jury could find that the burning was the act of the respondent.

In passing upon this motion the evidence must be viewed in the light most favorable to the State. Picknell v. Bean, 99 Vt. 39, 41, 130 A. 578; MacDonald v. Orton, 99 Vt. 425, 427, 134 A. 599; State v. Rounds, 104 Vt. 442, 448, 160 A. 249. The effect of modifying evidence is to be excluded. Tinney v. Crosby, Vt., 22 A.2d 145, decided at the present term of court; Ste. Marie v. Wells, 93 Vt. 398, 399, 108 A. 270.

From the evidence so viewed the following facts appear: The buildings, whose destruction by fire at the time alleged is undisputed, were located on opposite sides of a side road leading off, in a northeasterly direction, from the main road leading from Cabot to Walden. The house was on the northerly and the barn on the southerly side of the road. There was only one other occupied house on this side road, which was that of the witness Petit situated about 600 or 700 feet northerly from these buildings. The McCall house and barn were both rectangular in shape, the house being about 54 by 22 feet and the barn about 80 by 32 feet with the shorter dimension of each building toward the road. At the rear of the northeasterly corner of the house there was a woodshed and about 68 feet from the rear of the barn there was a tool-house with metal roof which was the only building that did not burn. The distance between the house and barn was about 44 to 46 feet. Awakened by a member of his household at about 1 A. M., Mr. Petit looked from his window and saw that both the McCall house and barn were all afire but there was more fire in the farther end of each building, that is in the end away from the road and the other building. The woodshed was also burning. There was a considerable amount of snow on the ground. A hard westerly wind was blowing, the general direction being away from the house toward the barn.

Mr. McCall was a patient in a Burlington hospital where he had been since November 24th. The other occupants of the McCall home, a hired boy 19 years old named Francis Perry, Mrs. Alexander, a sister, and Mrs. Anselone, a daughter of McCall went to Burlington on Sunday, the day before the fire to visit Mr. McCall and did not return that night. The evidence does not disclose that there was anyone in the house or barn after they left at about 4:15 Sunday afternoon. When these people left there were two wood fires burning—one in the kitchen stove at the rear of the house and the other in a stove in the sitting room near the middle of the house. On the roof of the barn there was a wind charger or wind mill which generated electricity for the radio and lights in the house. Wires ran from the wind charger to a storage battery in the front room of the house. When the wind charger was allowed to run too long in a high wind the battery would become overcharged and make trouble. On one occasion the wires had been burned out in this way and the window jamb set on fire. It did not appear that the wind charger had been turned off before the people left the house on Sunday.

Mr. Petit and another witness who arrived early at the fire observed a man's tracks in the snow approaching the rear of the house at the corner opposite the woodshed and coming as if from the Walden-Cabot road. A set of similar tracks was discovered leading away from the house in a somewhat more southerly direction, and later in the forenoon the sheriff and others under his direction followed both sets of tracks until both came to or near the Walden-Cabot road. Back tracking the approaching tracks the observers came to a place about 30 to 35 rods from the McCall buildings where the snow had been trodden down so hard that footprints did not show. This area was not more than four feet in diameter and a considerable amount of tobacco juice had been...