State v. McClard

• Decision Date: 10 October 1916
• Parties: STATE v. MCCLARD.
• Court: Oregon Supreme Court

160 P. 130

81 Or. 510

STATE v. MCCLARD.

Supreme Court of Oregon

October 10, 1916

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Fred McClard was convicted of an offense, and he appeals. Affirmed.

The defendant was indicted for the crime of burning property with intent to injure and defraud the insurer, which crime it was alleged was committed on the 7th day of November, 1915. There was evidence tending to show that on the 30th day of October 1915, he procured insurance in the North British &Mutual Insurance Company upon certain household goods, consisting principally of clothing and personal effects and then being in a frame building situated at 1745 Court street, Salem Or.; that on November 7th a fire occurred in his room which totally destroyed the contents, and that a claim with an itemized list of the articles destroyed, amounting in alleged value to $239.40, was duly presented to the insuring company. The state introduced with other testimony not shown in the bill of exceptions evidence tending to show that on March 8 1916, defendant applied for and received insurance in the Pacific Fire Insurance Company upon a similar class of goods situated in a dwelling house at 1223 Ferry street, Salem, Or., and that on the 15th day of the same month a fire occurred in his room whereby the alleged goods were destroyed, and he made proof of his loss and received $207 in satisfaction thereof. It also appeared that the goods in his room at Ferry street were brought there contained in two suit cases, and two suit cases are listed among the items embraced in the proof of loss. To the introduction of this testimony defendant's counsel objected as being irrelevant, which objection was overruled by the court; and the defendant, having been convicted and sentenced, appeals.

Guy O. Smith, of Salem (Smith & Shields, of Salem, on the brief), for appellant. Elmo S. White, Deputy Dist. Atty., of Salem (Ernest R. Ringo, Dist. Atty., of Salem, on the brief), for the State.

McBRIDE J. (after stating the facts as above).

The principal question discussed here is the admissibility and sufficiency of the evidence as to another and similar occurrence to the one charged. It is a general rule that evidence of other and distinct crimes than that charged in the indictment cannot be given in evidence. State v. Baker, 23 Or. 441, 32 P. 161; State v. McDaniel, 39 Or. 172, 65 P. 520; State v. O'Donnell, 36 Or. 222, 61 P. 892; State v. Lee, 46 Or. 42, 79 P. 577; State v. Martin, 47 Or. 284, 83 P. 849, 8 Ann. Cas. 769; State v. Kelliher, 49 Or. 83, 88 P. 867; State v. Baker, 50 Or. 386, 92 P. 1076, 13 L. R. A. (N. S.) 1040; State v. Finch, 54 Or. 488, 103 P. 505; State v. Hembree, 54 Or. 474, 103 P. 1008; State v. La Rose, 54 Or. 555, 104 P. 299; State v. Smith, 55 Or. 408, 106 P. 797; State v. Rader, 62 Or. 37, 124 P. 195; State v. Start, 65 Or. 178, 132 P. 512; State v. McAllister, 67 Or. 480, 136 P. 354; Sykes v. State, 112 Tenn. 572, 82 S.W. 185, 105 Am. St. Rep. 991; People v. Mayor, 80 N.Y. 364; Shipply v. People, 86 N.Y. 375, 40 Am. Rep. 551; Pinckord v. State, 13 Tex.App. 468; Commonwealth v. Shepard, 1 Allen (Mass.) 575; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077; Ogle v. Brooks, 87 Ind. 600, 44 Am. Rep. 778; Schaser v. State, 36 Wis. 429. But to this rule there are certain exceptions, for it has been frequently held that for the purpose of showing motive to commit a crime, to show the intent with which an act was committed, or to show that the act charged in the indictment was committed pursuant to a system of acts of the same character having in view a similar fraudulent result, such testimony can be admitted. This is particularly true in cases of counterfeiting, obtaining money by false pretenses, and setting buildings on fire to defraud insurance companies. People v. Marrin, 205 N.Y. 275, 98 N.E. 474, and 43 L. R. A. (N. S.) 754, where many cases are collated and commented upon in an exhaustive note to the principal case. In trials for false pretenses the rule is thus stated in Underhill on Criminal Evidence, § 438:

"Evidence of similar offenses, involving the making of other false representations, is admissible against the prisoner to show that he was aware of the

falsity of the statements made by him in the present instance, and that, knowing them to be false, he made them with the intent to deceive. Evidence of similar false pretenses is particularly relevant when it appears that the fraudulent act for which the accused is on trial does not stand alone, but is a part of a scheme not merely to defraud one individual, but to swindle the community at large."

See, also, State v. Germain, 54 Or. 395, 103 P. 521, State v. Briggs, 74 Kan. 377, 86 P. 447, 7 L. R. A. (N. S.) 278, 10 Ann. Cas. 904, and cases there cited.

The same rule has been applied in cases involving the burning of buildings with intent to defraud the insurance company. 4 Chamberlayne, Ev. § 3225; Regina v. Gray, 4 Foster &amp Finlason, 1102; Kramer v. Commonwealth, 87 Pa. 299; State v. Huffman, 69 W.Va. 770, 73 S.E. 292; State v. Jones, 171 Mo. 401, 71 S.W. 680, 94 Am. St. Rep. 786; Knights v. State, 58 Neb. 225, 78 N.W. 508, 76 Am. St. Rep. 78; Hinkle v. State, 174 Ind. 276, 91 N.E. 1090. The circumstances in these cases are various and there are few of them exactly coincident with those in the case at bar, but from them we may deduce the principle that when the motive or intent of a party constitutes a material part of the offense charged, and particularly where the intent must necessarily be fraudulent in order to constitute the crime, evidence of similar acts may be received to show the intent in the particular case. It is not unusual for a man to insure his property and for a fire thereafter to consume it, but after a series of insurances and subsequent burnings occurring within a comparatively short period, the average man--and the juryman is supposed to be such--is liable to conclude that the last burning is something more than a coincidence. Take the case at bar: it is at least unusual that a lodger at such boarding houses as exist in Salem, and whose clothing and worldly effects are contained in two ordinary suit cases, uses the extraordinary precaution of having them insured, and it is a singular coincidence that within a few days a fire should break out in the closet where they are stored and consume them. It is also rather peculiar that the same lodger should between March and October have accumulated $207 worth of similar articles and taken...