State v. Murdock, 12182

• Citation: 500 P.2d 387,160 Mont. 95
• Decision Date: 24 August 1972
• Docket Number: No. 12182,12182
• Parties: STATE of Montana, Plaintiff and Respondent, v. Edward R. MURDOCK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 387

500 P.2d 387

160 Mont. 95

STATE of Montana, Plaintiff and Respondent, v. Edward R. MURDOCK, Defendant and Appellant.

No. 12182.

Supreme Court of Montana.

Submitted June 19, 1972.

Decided Aug. 24, 1972.

William Dee Morris, Helena, for defendant and appellant.

Thomas F. Dowling, County Atty., Leif B. Erickson, Deputy County Atty. (argued), Robert L. Woodahl, Atty. Gen., J. C. Weingartner, Asst. Atty. Gen. (aruged), Helena, for plaintiff-respondent.

HASWELL, Justice.

Defendant was convicted of first degree arson following a jury trial in the district court of Lewis & Clark County, Hon. Victor H. Fall, district judge. Defendant was subsequently sentenced to ten years in the Montana State Prison and now appeals from the judgment of conviction.

During the month of June 1971, defendant Edward R. Murdock started to build a house on a tract of land in the Helena valley known as the Sewell tracts. By about August 1 the two-story house, 40 30 feet, was largely completed but the second floor was unfinished.

In the latter part of July defendant contacted Schroeder Brothers Company, a Helena insurance brokerage firm, to purchase fire insurance on his house. They declined to sell him fire insurance at that time because the house was not completed. On August 3 defendant again contacted Schroeder Brothers for the same purpose after the house was completed. Frank Mihelish of Schroeder Brothers appraised the house at $25,000 and suggested defendant purchase a fire insurance policy in this amount. Defendant, however, insisted on a $35,000 policy which Schroeder Brothers wrote and defendant paid for.

During defendant's second visit to Schroeder Brothers he was asked if there was a mortgage on the house, and he answered in the negative. On August 6 defendant asked Schroeder Brothers to add the name of S. F. Parker to the policy as mortgagor. On August 10, defendant again appeared at Schroeder Brothers to check whether his policy was in full force and effect and was advised that it was.

A fire occurred on August 19 about 6:30 a.m. when defendant was not at home. The house was partially destroyed by fire. The West Valley Fire Department answered the fire alarm. Upon arrival they found the house locked and forced the door to gain entry. During the course of putting out the fire and securing the premises, they noted various indications which led them to believe the fire was of incendiary origin and that arson might be involved. They so advised the deputy state fire marshal, Gary Younker.

Younker arrived at defendant's house about 3:00 p.m. and commenced his investigation. He inspected the partially burned house, took pictures, and interviewed witnesses. He gained entry to the unoccupied house by removing the boards from the door which the firemen had used to secure the premises when they left after putting out the fire that morning.

The investigation by the firemen and deputy state fire marshal Younker revealed that the fire started in the furnace room on the first floor. Oil soaked rags were stuffed in the wire and control system of the oil furnace. The rags led to two plastic containers containing a flammable liquid. The thermostat on the furnace was set at approximately 75 degrees. When the thermostat clicked on the furnace ignited the rags which in turn started a blaze in the furnace room which started burning the ceiling of the furnace room. Directly over the furnace room on the floor of the second story, various volatile items were stored-2 five gallon cans of gasoline, 1 twenty-five gallon can of propane with gas escaping from it, some flammable paint, and two rolls of tarpaper. The carpeting in the house was soaked with oil.

The firemen who fought the blaze noted the entire house was permeated with the odor of oil. They also observed that all of the walls were paneled and there was no insulation between the paneling and the outside walls. The firemen and deputy state fire marshal Younker concluded the fire was the result of arson.

Mr. Val Ketchum, who helped install the furnace, indicated that three weeks after the furnace was installed, defendant called him and told him the oil lines were leaking. Ketchum clecked and found no such leak. About a week later, defendant again called Ketchum and told him there was 'oil running all over the place'. Ketchum investigated and found two drops of oil on a fitting. At this time Ketchum completely checked the furnace and gave it the seal of approval.

The furnace was equipped with various safety devices which immediately shut off the furnace in the event of a malfunction. Ketchum stated the only way the furnace could start a fire such as the one involved here would be if it were tampered with. He investigated the furnace after the fire and found rags jammed in the electrical system which damaged the safety mechanisms, which in turn resulted in a continual flow of oil. He concluded that the furnace had been manually tampered with causing it to work improperly.

On the day after the fire, defendant appeared at Schroeder Brothers, inquired if the fire had been reported, and was taken to the insurance adjuster to discuss settlement.

It later developed that a $40,000 mortgage had been recorded on the property running from defendant to S. F. Parker, the mortgagor. This mortgage was given to secure payment of a promissory note for $40,000 bearing 6% interest and payable at the rate of $100 per month, including interest. Defendant was both the sole payee and the sole maker on the note.

Defendant was charged with first degree arson by information filed directly in the district court. He entered a plea of 'not guilty'. Prior to trial he moved for the suppression of certain objects and things, allegedly taken from his house as a result of an unlawful search and seizure, and his motion was granted.

Trial by jury commenced on November 8, 1971. Basically defendant's defense was (1) failure of the state to prove the essential elements of the crime beyond a reasonable doubt, and (2) alibi. Defendant did not testify.

During the course of trial the state was permitted to examine Jack Parker, husband of the alleged mortgagor S. F. Parker, as an adverse witness. Counsel for defendant also represented Parker at the trial. Defendant claimed such adverse witness ruling and examination was improper, that the district court ruled Parker a defense witness, and that defendant was denied the right of cross-examination.

Subsequently, defendant attempted to establish his defense of alibi by testimony that he had gone to Harlowton, Montana, the day before the fire; stayed in a motel there that night; left the motel the next morning; and did not return to his home in the Helena valley until the day after the fire. Defendant called the motel owner and attempted to secure admission in evidence of a motel registration card on which his name was printed. The motel owner could not identify defendant as the peron who stayed at the motel. The proffered motel registration card was denied admission in evidence.

Defendant was convicted of first degree arson as charged. He was sentenced to years imprisonment in the state prison where he now remains. Following denial of various post- trial motions by defendant, he now appeals from the judgment of conviction.

Defendant assigns ten issues for review upon appeal which can be summarized in this manner:

(1) Was there probable cause to support the filing a direct information?

(2) Was evidence secured as the result of an unlawful search and seizure used at the trial to procure defendant's conviction?

(3) Was evidence relating to insurance and credit improperly admitted at the trial?

(4) Did the district court err in denying defendant's motion for a directed verdict of acquittal?

(5) Was the motel registration of defendant improperly denied admission in evidence?

(6) Was there error in jury instructions?

(7) Was there a fatal variance between the crime charged and the proof?

(8) Insufficiency of the evidence to overcome the presumption of innocence?

(9) Did the district court erroneously apply the law of arson in its pretrial, trial, and post-trial rulings?

(10) Did the district court err in declaring witness Jack Parker an adverse witness, in requiring the defendant to accept this witness as a defense witness, and in openly quarrelling with defendant's counsel in the presence of the jury over this issue?

Directing our attention to the first issue, we hold there was probable cause to support the filing of a direct information. Deputy state fire marshal Younker testified under oath in open court in support of the state's motion for leave to file the information direct. A complete transcript of his testimony is included in the court file. From his testimony the following facts are established: (1) The smell of petroleum products permeated the house. (2) Oil soaked rags had been placed in the fire chamber of the furnace. (3) These rags ran down into two containers of fuel oil. (4) The thermostat on the furnace had been set for approximately 75 degrees on a summer day in August. (5) The house was over-insured. (6) Defendant owed bills all over town for construction materials. (7) The house was mortgaged for $40,000. (8) The monthly payments on the mortgage would cover only half the interest accrued during the first year and less than that in subsequent years. (9) The carpeting in the house was soaked with fuel oil. (10) There were substantial amounts of gasoline, propane, flammable paint and tarpaper located directly above the furnace room. (11) The house was locked and defendant had the only keys. (12) The fire was the result of arson. (13) The fire was arranged to occur during the early morning hours when defendant was absent. (14) The mortgage and promissory note were questionable. These facts are abundantly sufficient to establish probable cause for filing a direct information charging defendant with first degree arson. See State v. Dunn,...