State v. Sam Howard

• Decision Date: 16 February 1936
• Citation: 183 A. 497,108 Vt. 137
• Parties: STATE v. SAM HOWARD
• Court: Vermont Supreme Court

183 A. 497

108 Vt. 137

STATE v. SAM HOWARD

Supreme Court of Vermont

February 16, 1936

November Term, 1935.

Criminal Law---Setting Fire to Defraud Insurers---Effect of Changes Made in Revision of Statutes---P. L. 1706 Relating to Immunity of Witnesses Construed---P. L. 8750 Defining Felony Construed---Immunity Statute Not Applicable to One Testifying in Felony Investigation---Waiver of Motion for Directed Verdict---Effect of General Exception to Testimony of Specified Character---Evidence of Other Acts or Offenses---When and for What Purposes Admissible---Extent of Burden on State to Make Such Evidence Admissible---Necessity of Showing Connection with Offense Charged---Substantial Evidence Necessary---Of Identical Act---Evidence of Earlier Fires Held Inadmissible as Not Sufficiently Connected or of Sufficient Force.

1. Changes in a revision of the statutes will not be regarded as altering the law, which is well settled by the plain language of the statute or by judicial construction, unless it is clear that such was the intention.

2. P. L. 1706, providing immunity from prosecution for one compelled to testify under subpoena issued at request of State, is to be construed with P. L. 1705, providing that one shall not be excused on ground of self-incrimination from testifying under subpoena issued at request of State in any prosecution or investigation connected with a misdemeanor and applies only to one testifying in prosecution or investigation within terms of P. L. 1705.

3. Under provisions of P. L. 8750, providing that offenses punishable by death or imprisonment in state prison are felonies, the fact that an offense may be punished by such imprisonment makes it a felony, and the fact that there is an alternative penalty of a fine does not reduce the offense to a misdemeanor.

4. In criminal prosecution, respondent, charged with wilfully and maliciously setting fire to building and personal property owned and controlled by him with intent to defraud fire insurance companies, punishable under provisions of P. L 8423 with imprisonment in state prison or fine, who testified under subpoena issued at request of State at investigation conducted by deputy fire marshal under provisions of P. L 8171, 8173 and 8174, held not to be immune from prosecution by reason of provisions of P. L. 1706, and petition to dismiss information denied.

5. In criminal prosecution, respondent waives motion for directed verdict made at close of State's evidence by proceeding with trial and introducing evidence.

6. In criminal prosecution for setting fire with intent to defraud insurance companies under provisions of P. L. 8423, where respondent's defense was, in part, an alibi, and State's evidence tended to show he was near scene of fire a short time before it started, held in view of all the evidence, that there were jury questions and motion for directed verdict at close of evidence was properly denied.

7. In such prosecution, where State was permitted to introduce evidence of fires in respondent's building prior to fire in question, and objection was made and exception saved to such testimony of first witness who testified in regard to such fires, on ground that there was no connection between such fires and fire in question; where, before second witness so testifying gave evidence about such fires respondent's counsel objected to all evidence relating to previous fires without restating ground,

and court granted exception; where thereafter such testimony was received without further objection or exception; and where it fairly appeared from record that court and parties understood that subsequent testimony of prior fires was received subject to objection stated; held that it was not necessary for respondent, to save his exception, to object to testimony of each subsequent witness of prior fires.

8. Evidence of other acts or offenses is not admissible to prove the commission of the act complained of; but such evidence may be admissible as a means of identifying the respondent as the perpetrator of the crime, or to show motive, intent, or guilty knowledge on his part, when an issue, or as tending to illustrate, characterize, or explain the act, when capable of more than one construction, although it may disclose other offenses.

9. In criminal prosecution for setting fire with intent to defraud insurance companies, to make evidence of prior fires on respondent's premises admissible to show intent, burden was upon State to prove that such prior fires were of incendiary origin, that respondent set them, and that there was a connection between them and the fire in question; there was no burden on respondent.

10. In criminal prosecution, where it is sought to introduce evidence of a prior offense, the connection between the other offense and the offense with which the respondent is charged must appear from the evidence; it is for the court to decide whether any connection exists, and if the court does not perceive such connection, the accused should be given the benefit of the doubt and the evidence rejected.

11. In such circumstances, evidence of other offenses should be substantial, and at least make out a prima facie case, before it is admissible; if it only amounts to a suspicion or is of vague and uncertain character, it should not be received, and even if it establishes commission by respondent of an independent offense, it must be shown satisfactorily that the offense had some connection and is identical with the act in question.

12. In criminal prosecution for setting fire with intent to defraud insurance companies, evidence of rubbish fires built by respondent on his premises four or five years earlier and of a fire started from a blow torch which, according to respondent's uncontradicted evidence, had tipped over when he left it hung up in cellar to thaw out pipe, held inadmissible, and reception thereof as showing gross and wilful negligence of respondent as bearing upon his intent to have property burn, held error.

13. In such prosecution, evidence regarding a fire on respondent's premises about four years earlier, which occurred in cellar of apartment that day vacated by tenant and was put out by a neighbor, and about which, according to uncontradicted testimony, respondent knew nothing except what the neighbors told him, all evidence of the occurrence of the fire being hearsay and there being no direct or circumstantial evidence that the respondent set the fire, held inadmissible.

14. In such prosecution, evidence of a fire apparently of incendiary origin in a vacant apartment in respondent's building, to which, according to the evidence, others had access, held inadmissible as not being sufficient to make out a prima facie case against the respondent.

15. In such prosecution, evidence of fire in a stairway in respondent's building, used by patrons of dance hall for smoking, which fire occurred in early morning after a dance, there being no evidence as to its cause, and the probability that it started from cigarette stubs as great as that respondent set it, held inadmissible.

INFORMATION charging offense under P. L. 8423 of setting fire with intent to defraud insurance companies. Plea, not guilty. Trial by jury at the March Term, 1935, Orleans County, Cleary, J., presiding. Verdict of guilty and judgment and sentence thereon. The respondent excepted. The opinion states the case. Petition to dismiss denied. Judgment reversed and cause remanded. Petition for new trial dismissed.

Petition to dismiss denied. Judgment reversed and cause remanded. Petition for new trial dismissed without costs.

Harry B. Amey and David E. Porter for the respondent.

Lee E. Emerson, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

THOMPSON

The respondent was tried by jury in Orleans County Court, March Term, 1935, on an information of the State's attorney, charging that he did wilfully and maliciously set fire to and burn a building in Newport City owned and controlled by him, and known as the Sam Howard Block, together with his household furniture and stock of merchandise therein, with intent to defraud five fire insurance companies having the fire insurance thereon. The jury returned a verdict of guilty. Judgment was rendered on the verdict, and sentence imposed. The case is here for review on respondent's exceptions, on his petition to dismiss the case, and on his petition for a new trial.

The State raises the question that the respondent has not adequately briefed the case, and therefore his exceptions are not before this Court. There may be some ground for this criticism of the respondent's brief, but the brief of the State is not entirely free from the same criticism. We think that, on the whole, both parties have sufficiently briefed the case so that we can pass upon all questions that have been properly raised.

We consider first the petition of the respondent to dismiss.

The substance of the ground of the petition is that the respondent is immune from further prosecution in this case, because, in obedience to a subpoena issued by the deputy fire marshal, he appeared and testified under oath at an investigation held by the deputy fire marshal at Newport City on January 7, 1935, as to the nature and cause of the fire that destroyed his building.

It appears from the agreed statement of facts relating to the petition, that the fire in question happened in the night of December 31, 1934; that the State's attorney assisted at the investigation of January 7, 1935; that the deputy fire marshal summoned and compelled the attendance of the respondent before him by the issuance of a subpoena, which was served on him by a deputy sheriff of Orleans County...