State v. Peden

• Decision Date: 13 January 1960
• Citation: 220 Or. 205,348 P.2d 451
• Parties: STATE of Oregon, Respondent, v. Caroline PEDEN, Appellant.
• Court: Oregon Supreme Court

Page 451

348 P.2d 451

220 Or. 205

STATE of Oregon, Respondent, v. Caroline PEDEN, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 6, 1960.

Decided Jan. 13, 1960.

Harrison R. Winston, Roseburg, argued the cause and filed a brief for appellant.

George F. Weigum, Dep. Dist. Atty., Roseburg, argued the cause, Avery W. Thompson, Dist. Atty., Roseburg, filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and HARRIS, JJ.

HARRIS, Justice pro tem.

Defendant, Caroline Peden, was convicted by a jury of the crime of first degree arson, and from the ensuing judgment she appeals.

The indictment charged that on February 5, 1956, the defendant, acting in concert with one Lonnie D. Branscum, set fire to, and caused to be burned, and aided, counseled and procured the burning of, a dwelling house belonging to defendant. The actual burning was committed by Branscum.

It is the position of the state that the defendant counseled and procured Branscum to burn her dwelling, in which he was a tenant, for the purpose of collecting insurance. Branscum admitted the arson, stating he committed the act to obtain money defendant agreed to pay him therefor. Defendant did not take the stand.

Three assignments of error raise the following three questions: (1) Was the state's evidence sufficient to authorize submission to the jury of the issue of defendant's counseling or procuring the burning of the dwelling house in question; (2) was the testimony of witnesses McLarty and Densmore relating to their conversations with the defendant properly admitted in evidence; (3) did the court err in admitting into evidence state's exhibit H, which is a photostatic copy of a bank check?

By one assignment of error defendant contends that the court erred in failing to remove the case from consideration of the jury on the ground there was no evidence against defendant of an overt act on her part necessary to constitute a criminal offense. ORS 164.020, under which defendant was convicted, makes it unlawful for any person to counsel or procure the burning of a dwelling house by another. The question involved is the sufficiency of the evidence to sustain a charge of a violation of the foregoing statute.

Lonnie D. Branscum, the individual who actually committed the arson, was called as a witness by the state. He testified that he had known the defendant, Caroline Peden, approximately since September, 1955; that in November, 1955, some three months before the commission of the arson, he had a conversation with defendant concerning the dwelling house. Continuing, the witness testified as follows:

'Q. What was the substance of that conversation? A. It was burning the house for the insurance, sir.

'Q. What was said? A. Well, Mrs. Peden asked me if I had thought it over. She had talked to my wife before and I said, 'Yeah, I had thought it over,' and----

'Q. And what did she say? A. She asked me what I thought about it, and I can't remember the exact words. Something about she would give me $500.00 to burn it down.'

The witness further explained that about a month subsequent to the first conversation, which would be sometime in December, 1955, he had another talk with defendant as follows:

'Q. Now, on the last occasion that you talked with Mrs. Peden, what was said? Do you remember the conversation, who was present and where was it? A. Well, my wife was in the cafe. It was in the Winston Cafe in Winston, and Mrs. Peden asked me what I thought about burning the house and I didn't think very much about it. She said she would give me $500.00.'

On cross-examination Branscum swore as follows:

'Q. I see. Was there--did she try to get an agreement from you of any kind? Or did she just say what do you think about it? Is that what she said? A. No, sir. She made me a definite offer.

'Q. Which was what? A. Five hundred dollars.

'Q. When and how were you supposed to do this? Was that discussed? A. No, sir.

'Q. I believe you said you stated you wouldn't do it, is that correct? A. Me and my wife had decided not to do it, yes, sir.

'Q. Did you tell Mrs. Peden you wouldn't do it? A. No, sir, I didn't.

'Q. I thought you testified that you told her you wouldn't do it, or was this the second conversation you had with her? A. Well, the conversation that she had asked me what I thought about the fire, and I told her I didn't think much about it.

'Q. This is the first conversation you had about it directly with her, isn't it? A. Yes, sir.

'Q. Now, the second time, what did you discuss with her? A. Well, if I remember right, she had asked me what we were going to do about it. If we wanted to, what we had decided on, and I said well, we hadn't decided, didn't think too much of burning it.

* * *

* * *

'Q. Well, at the time you say that you spilled this kerosene over a lamp, it's not your contention that you had an agreement with her that you do that? A. Yes, sir, there was an agreement there.

'Q. I believe you said you had discussed it and she had in effect made you an offer, isn't that it? A. Yes, sir.

'Q. And you had advised her that you wouldn't do it? A. Yes, sir, but it was a standing offer that if it happened----

'Q. Well, now, you say it's a standing offer, who made it a standing offer? A. She did.

'Q. Well, in what conversation did that take place? A. With my wife.

'Q. With your wife? Not with you? A. No, sir.'

As a result of the foregoing conversations with defendant, Branscum described the culminating act as follows:

'Q. What happened that evening? A. Well, we come back about 6:30, 7:00 o'clock. I can't say just the exact time, and we'd--I had got some kerosene to fill some kerosene lamps, and my wife had went out to the bathroom out back of the place, and I was filling some lamps and was thinking about the $500.00 that I needed pretty bad, and I let the lamp explode.'

From the foregoing it is evident that there was sufficient evidence from which the jury could find defendant counseled and procured the burning of the dwelling house by Branscum; that defendant made Branscum a 'standing offer' to pay him for such burning. Although Branscum expressed some diffidence at one time to commit the arson, he never gave defendant a definite refusal. He advised defendant: '* * * we had not decided.' The jury could well find that defendant's offer was under continuing consideration by Branscum ('* * * we'd thought about burning the house, yes.'), and that at the critical time, a few weeks after defendant's last offer to pay him $500 to burn the dwelling, he yielded to the temptation of the offer. ('* * * I was filling some lamps and was thinking about the $500.00 that I needed pretty bad, and I let the lamp explode.')

Undisputed evidence also indicates defendant paid Branscum $250 a few days after the fire.

As will later be indicated, evidence of defendant's prior attempts to have other persons burn the identical property was properly submitted to the jury for such bearing as it might have on defendant's guilt of the offense for which she was tried and to show a general plan or design upon the part of the defendant. In this case the overt act consisted of defendant's counseling and procuring Branscum to commit the arson.

The court did not err in refusing to withdraw the case from the consideration of the jury.

By assignment of error No. 2 the defendant contends the court erred in allowing state's witnesses McLarty and Densmore to testify over the objection of the defendant on the ground of remoteness that from 15 to 24 months prior to the date of the offense for which defendant was on trial, the defendant had made statements requesting other persons to burn the same dwelling house herein involved. McLarty testified that defendant offered him $300 to burn the dwelling. Densmore...