State v. Perras

• Decision Date: 05 February 1952
• Docket Number: No. 370,370
• Court: Vermont Supreme Court
• Parties: STATE v. PERRAS.

Page 544

86 A.2d 544

117 Vt. 163

STATE v. PERRAS.

No. 370.

Supreme Court of Vermont.

Feb. 5, 1952.

Lawrence H. Deshaw, State's Atty., Burlington, for plaintiff.

Joseph S. Wool, Burlington, for defendant.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and CHASE, Superior Judge.

ADAMS, Justice.

At the September Term, 1950, of the Chittenden County Court, the respondent was convicted of arson in the second degree. The case is here on his exceptions to the denial of his motion for a directed verdict. While stated in various ways, the substance of the motion was that there was no evidence from which the jury could find that the fire was incendiary and that the burning was the act of the respondent.

This is a criminal case, but the rule in passing upon the motion is the same as in civil cases. The evidence must be taken in the light most favorable to the state. State v. Rounds, 104 Vt. 442, 448, 160 A. 249; State v. Boudreau, 111 Vt. 351, 360, 16 A.2d 262; State v. Wilson, 113 Vt. 524, 526, 37 A.2d 400. The effect of modifying evidence is to be excluded. State v. Woolley, 109 Vt. 53, 63, 192 A. 1.

The testimony thus considered showed the following facts,--what is known as the Open Door Restaurant is located on Church Street in Burlington. On September 28, 1950, and previous thereto it was operated by a Mrs. Terry. There is an alley five or six feet wide leading by the back or kitchen door of the restaurant. This door faces north. Around the corner of the building and about seven feet from the corner, out of sight from the kitchen door and facing west is a hatchway. It leads into the cellar and has a wooden door which swings in at the bottom of the steps.

When the cooks cleaned the range in the kitchen they used a piece of burlap or burlap bag, saturated it with cooking oil wiped the stove, took the burlap out the kitchen door and threw it away. Generally it landed in a receptacle but sometimes landed on the ground. There were some of these on the ground near the door on the evening in question.

The respondent had worked in the restaurant as a cook. He was familiar with the rear of the building and knew where the hatchway was located. He knew about the use of the burlap bags to clean the range and had seen some of them after they had been used outside the kitchen door. Shortly after September 1, 1950, and after he had worked at the restaurant for about two months, he was reprimanded by Mrs. Terry for something he had done in the kitchen. He became angry and stood in the middle of the dining room full of people, swore, used vile language and quit.

During the afternoon and early evening of September 28, the respondent was in Burlington, visited several places and had beer to drink. A few minutes before nine o'clock he came into the Open Door Restaurant for the purpose of getting some beer to drink. He asked the bartender, Joe, for a beer and Joe refused to serve him any. They had some words and Joe told the respondent that Mrs. Terry had ordered that he should not be served any liquor. He was angry, became very boisterous and created quite a commotion. He wanted to fight with Joe. He said he was going to make it tough for Mrs. Terry and would put her out of business. There was what a student at the University, who worked in the restaurant as a waiter, termed a 'brawl', 'the biggest one we had at the Open Door'. After it was over the respondent stayed around three or four minutes, then left. It was then about five minutes after nine.

Shortly after this episode, the cook, when he had finished mopping up, stepped out the back or kitchen door to hang up his mop. While he was on the step, the respondent ran by in the alley. The direction in which he was running would take him by the hatchway and there are several exits from there to the street. Just as the cook turned to reenter the kitchen, he saw another man whom he did not know run by in the alley. In about fifteen minutes the kitchen started to fill up with smoke. The cook checked things inside the kitchen and found no fire. He then went outside and saw smoke coming from the hatchway. He returned to the kitchen, picked up a cooking kettle, filled it with water, went out to the top of the hatchway stairs and threw the water on the fire. He procured another kettle of water and threw it on the fire and put it out. The hatchway door was locked and he kicked it open to see if there was any fire inside. There was none. He then saw a piece of burlap or burlap bag lying right in the corner of the door on the left side in which the water had not extinguished the fire. He 'stamped' on it and put the fire out completely. When he first saw the fire, there were flames and the door and casing were on fire. Because of the smoke, he did not see the burlap bag before he went down the hatchway steps to kick the door open.

The police station was called, an officer came and later a representative from the State Fire Marshal's Office also arrived. The burlap bag was examined by them. It was wet, partly burned and greasy. They also found a cigarette stub and a partly burned paper match folder lying on the door sill in the hatchway. The door and casing were charred. There was some other burlap that was greasy lying on the ground near the kitchen door and some in a wooden box across from the step to that door.

On their second trip that evening to the respondent's home in Winooski, the officers found the respondent there. At their request, he accompanied them to the State Police office in Burlington, where he was questioned about his activities on that night. He told them that he had a few beers at various places, naming them, then went to the Open Door. He was asked if he had had words with the...