State v. Johnson

• Decision Date: 11 June 1975
• Docket Number: No. 11298,11298
• Citation: 96 Idaho 727,536 P.2d 295
• Parties: , 96 A.L.R.3d 1163 The STATE of Idaho, Plaintiff-Respondent, v. Floyd JOHNSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 295

536 P.2d 295

96 Idaho 727, 96 A.L.R.3d 1163

The STATE of Idaho, Plaintiff-Respondent, v. Floyd JOHNSON, Defendant-Appellant.

No. 11298.

Supreme Court of Idaho.

June 11, 1975.

Howard D. Humphrey, Clemons, Cosho, Humphrey & Samuelsen, Boise, for defendant-appellant.

W. Anthony Park, Atty. Gen., Conley Ward, Jr., James P. Kaufman, Asst. Attys. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Floyd Johnson, the defendant-appellant, following trial before a jury, was found guilty of the crime of arson in the second degree. Appellant also admitted having been convicted of previous felonies. Following a pre-sentence investigation and a hearing in mitigation of sentence, the trial court entered judgment of conviction of the crime of arson in the second degree, and also of being a persistent violator, as charged in the information. The trial court sentenced appellant to an indeterminate term of not to exceed fifteen years. From this judgment and sentence appellant has perfected his appeal. This court affirms.

Briefly, the facts as develolped by the state at trial are: About 10:00 p.m. on September 12, 1974, Richard W. Weeks, who was visiting with his father in Garden City, observed two men running on the roof of a building owned by his father. He heard a noise and observed flames shooting from this building. Weeks started in pursuit of these men, but was delayed somewhat by a gate. One of the men was a short distance down the alley from Weeks, and Weeks testified that, having this individual continually in view, he ran after him and observed him throw away a can. Weeks caught the man some distance away as the man was trying to get over a fence. This individual was identified as the appellant. Weeks testified that at the time he caught the appellant he was half way over the fence, with one leg over the fence and the other leg on the side he was coming from. Weeks testified: '_ _ at that he would have just about _ _ caught that he would have just about - - - caught this guy if I wouldn't have caught him from behind. But what he was talking about I don't know because there was nobody else in sight nowhere.'

When an officer arrived, appellant was arrested and Weeks directed the officer to the place in the alley where Weeks saw the can thrown away. They found a gas can to which was tied an auger, a bit and a piece of hose. This officer and another searched the roof of the burned building and found a hole bored in the roof. Both officers testified to smelling gasoline or a similar substance near the hole. One of the officers described the damage to the roof which led him to the conclusion that the damage had been caused by an explosion.

Appellant testified that he was mistakenly apprehended by Mr. Weeks, and his explanation of his presence in the vicinity of the fire was that he planned to meet another person who was interested in purchasing some nearby real estate owned by Johnson. Appellant testified that after hearing something that sounded like a pile of lumber toppling, he followed an individual he observed running. This other individual went over a fence and appellant was stopped near the fence when Weeks grabbed him. After appellant was able to speak he told Weeks to this effect: 'If you don't quit monkeyin' around with me whoever you are chasing will get away.'

Appellant sets out six assignments of error, the first of which is that the trial court erred in not granting his motions for an advisory instruction to acquit, contending the evidence was insufficient to sustain a conviction of arson. Appellant, in effect, recognizes that if the testimony of Mr. Weeks is accepted at its face value, it is arguable that a jury could find appellant guilty, but he asserts that this testimony cannot be so accepted. He contends that this testimony is improbable from a standpoint of time. Weeks testified that he never lost sight of the man he was pursuing, but appellant contends that considering the relative ages of Weeks and appellant, a man 59 years of age, allegedly carrying a partially filled metal gas can, bit and brace, that Weeks should have caught appellant much sooner than he did.

Primarily, however, appellants points out that subsequent to the trial of this criminal case, a civil action was instituted by Edward Weeks (the owner of the building and father of the witness who pursued appellant) and an insurance company, against appellant. In this civil action, the plaintiffs sought damages for the burning of the building. In this civil action a unanimous jury returned a verdict in favor of appellant. Appellant argues that, in light of this finding by the subsequent trial, the evidence now is overwhelming for a reversal of this conviction.

Only a relatively few courts have considered such an issue as to the effect of a subsequent civil judgment in favor of a defendant on a previously tried criminal action where the appellant was found guilty. Appellant cites several cases in support of his contention that a subsequent civil determination of his innocence constitutes grounds for reversal of his criminal conviction on the grounds of insufficiency of the evidence as a matter of law. State v. Faulk, 30 La.Ann. 831 (1878); People v. Kenyon, 93 Mich. 19, 52 N.W. 1033 (1892); People v. Parker, 355 Ill. 258, 189 N.E. 352 (1934); United States v. McGee, 117 F.Supp. 27 (D.Wyo.1953). Appellant nonetheless does recognize that there is contrary authority.

The state argues that although a prior civil finding on a specific factual issue is occasionally accorded res judicata effect in a subsequent criminal prosecution, the weight of authority holds that a criminal conviction may not be impeached by a subsequent civil verdict for the defendant in a case involving similar facts. United States v. Satuloff Bros., 79 F.2d 846 (2d Cir. 1935); People v. Lichtenstein, 22 Cal.App. 592, 135 P. 692 (1913); State v. Greenberg, 16 N.J. 568, 109 A.2d 669 (1954). The reason for the rule is said to be that the state cannot be bound by a judgment in a case in which it is not a party. United States v. Satuloff Bros., supra; see also, United States v. Smith, 446 F.2d 200 (4th Cir. 1971); People v. Lo Cicero, 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622 (1964).

It is the conclusion of this court that the proper rule is that when a defendant is convicted in a criminal case a subsequent judgment in favor of the same individual in a civil action cannot be used to impeach the prior conviction. Valid reasons support this conclusion. In People v. Lichtenstein, supra, that court stated its reasons as follows:

'There are many obviously cogent reasons why such a rule is impossible. Among the first of these is that the evidence in the one case might be different from the evidence in the other; the evidence in the one might be stronger or weaker or more convincing or less convincing that in the other. Again, the judgment of one jury or that of a judge upon the same facts would amount to a mere conclusion or opinion of a set of individuals or of one individual from the evidence produced, and a conclusion or opinion of that sort is never permissible in the proof of a disputed fact. It possesses no probative value.' 135 P. at 702.

Under his first assignment of error, appellant further contends that there was insufficient evidence to establish the corpus delicti. He asserts that when proof of the corpus delicti is made by circumstantial evidence, it should be established by proof of such character as to exclude all uncertainty. We find no merit to appellant's claim of insufficiency of the evidence in this regard. The corpus delicti in a case of arson in the second degree is established by proof that the prohibited burning occurred as a result of a criminal agency. I.C. § 18-802 defines the crime of arson in the second degree as follows:

'Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in the preceding section, ¹ shall be guilty of Arson in the second degree, and upon conviction thereof, be sentenced to the penitentiary for not less than one (1) nor more than ten (10) years.'

Generally, corpus delicti may be established by either direct or circumstantial evidence. State v. Kombol, 81 Idaho 530, 347 P.2d 117 (1969). The nature of the crime of arson is such that direct evidence is ordinarily unobtainable, and circumstantial evidence is particularly acceptable in such cases. People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 (1972); People v. Horowitz, 37 Mich.App. 151, 194 N.W.2d 375 (1971). In this case the evidence admits but little doubt. That the building in question was burned is not disputed. Richard Weeks testified he saw two men on the building and heard a noise and observed 'fire shooting up all over'. This witness chased after one of the men and observed this man carrying a can later found to contain gasoline. This can had tied to it a bit, a brace, and a hose. Examination of the roof disclosed a hole had been bored into it. Investigating officers smelled the odor of gasoline or other flammable product around this area of the roof. The investigating officers found no combustible material inside the building which would tend to disprove any contention the fire was started by spontaneous combustion.

From the state of the record, it is the conclusion of this court that there was ample evidence to establish that corpus delicti. See, People v. Johnson, 3 Ill.App.3d 492, 279 N.E.2d 171 (1972).

The granting or denying of a motion for an advisory verdict is in the first instance within the sound discretion of the trial court and such discretion will not be reversed on appeal unless a clear abuse is shown. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971). In State v. Urie, 92 Idaho 71, 437 P.2d 24 (19...