State v. Janasky

• Decision Date: 05 December 1950
• Citation: 258 Wis. 182,45 N.W.2d 78
• Parties: STATE, v. JANASKY et al.
• Court: Wisconsin Supreme Court

Page 78

45 N.W.2d 78

258 Wis. 182

STATE, v. JANASKY et al.

Supreme Court of Wisconsin.

Dec. 5, 1950.

Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., for plaintiff in error.

Willis E. Donley, Menomonie, Terence N. Hickey, Milwaukee, of counsel, for defendants in error.

MARTIN, Justice.

After stating that there were two essential elements to be proven within reasonable probabilities in this case, first, that the fire was of incendiary origin and, second, that there is probable cause to believe that the defendants, or either of them, set it, the trial court then stated as follows: 'There is sufficient evidence in my opinion to show that the defendants had an opportunity to set the fire and they had a motive for setting it.'

Whether or not the presence or absence of motive is material is stated as follows in Wharton's Criminal Evidence (11th ed.) sec. 246, Motives, p. 288: 'The presence or absence of motive in cases depending wholly on circumstantial evidence is not a factor that determines either the guilt or innocence of the accused. Proof of motive does not establish guilt, nor want of it establish innocence, * * *.'

It follows that the only question presented at this time is whether the state offered sufficient evidence to show within reasonable probabilities that the fire was of incendiary origin.

Evidence taken at the preliminary examination tended to establish the following ultimate facts:

On the early morning of January 11, 1950, a dwelling house located at 1020 Thirteenth Street in the city of Menomonie, Dunn county, was partially destroyed by fire. The house was occupied at the time by the defendants and their infant son as tenants of the Kraft State Bank of Menomonie. The contents of the house, belonging to the defendants, were insured by an $8,000 fire insurance policy written December 1, 1949. The house was a two-story dwelling approximately twenty-eight to thirty feet square, which faced west, and which had a basement under the entire north one-half. It was heated by means of an oil burner installed inside the furnace.

The temperature during the night of the fire was estimated at twenty-two to twenty-eight degrees below zero. The defendants admit they arrived home that evening about 9:30 p. m. and claim to have been awakened by heat and smoke. They claim they were unable to escape down the stairway and that they escaped down some bed sheets tied to a bed in the south bedroom.

Captain Janasky brought his young son to the Memorial hospital, located less than a block away, at about 2:00 a. m. and asked the night nurse to call the fire department, which she did. Captain Janasky was wearing a pajama top, trousers, and shoes. The small boy was wearing pajamas and had a sheet around him. He left the boy at the hospital and soon returned with his wife, who was dressed in a nightgown, fur coat, and a pair of white woolen socks. Mrs. Janasky and her son were put to bed for about two and one-half hours but were not admitted as patients nor seen by a doctor. The night nurse gave Mrs. Janasky first aid for a scratch on her leg. The Janaskys appeared excited and upset. In addition to the foregoing testimony, the nurse testified that about fifteen minutes after Janasky brought the boy to the hospital she went outside to look at the burning dwelling and at that time the whole house seemed to be entirely enveloped in flames.

The first city fireman to arrive at the scene within a very few minutes after he received the telephone call testified that at that time the front porch was completely burning and at first he thought there was no inside fire. He began fighting the porch fire, during which time he broke the front window with water and then observed the fire inside the house. There was a bed sheet tied to a leg of a bed in the south bedroom and projected downward out the window.

The fire chief received a telephone call from the fire station about 2:00 a. m. and arrived at the fire within five minutes. He testified that at that time there were flames on the porch, flames coming out of the second story west window and out of the northwest side of the chimney. All floors of the building including the basement were on fire, and fire was coming out of the roof which eventually collapsed. The fire was under control within two to two and three-quarters hours.

The insurance adjuster visited the burned premises the day of the fire and again on January 16, 1950, when he was accompanied by a wrecker operator and mechanic from a local garage. They removed a refrigerator and stove from the basement in order to determine the amount of damage. They brought tools and during their visit pried and pulled the oil burner out of the furnace and removed it to the front porch of the house. The mechanic testified that liquid, which was oil and water, ran out at that time. They found a chest of drawers or dresser in the center of the basement. They stood it upright and with a wrecking bar pried...