State v. Tuomi
| Decision Date | 09 April 1926 |
| Docket Number | 25,327 |
| Parties | STATE v. DAVID TUOMI |
| Court | Minnesota Supreme Court |
Defendant appealed from a judgment convicting him of arson in the second degree, McClenahan, J., in a prosecution in the district court for Itasca county charging him with arson in the first degree. Affirmed.
Fire was of incendiary origin.
1. The evidence sustains the finding of the jury that a fire was of incendiary origin.
And defendant was guilty of arson.
2. The evidence sustains the finding of the jury that the defendant set it and was guilty of arson in the second degree.
Instruction on character evidence correct.
3. There was no error in the instruction on character evidence.
Defendant not in position to criticize submission of second degree arson to jury.
4. The court submitted first degree arson and second degree arson. The jury found the defendant guilty in the second degree. No objection was made as to the submission of the second degree nor a request proffered that the jury be confined to first degree. It is held that the defendant cannot now claim that only the first degree should have been submitted.
Arson 5 C.J. p. 580 n. 17, 21; p. 581 n. 23; p. 583 n. 60, 62 New.
Criminal Law, 16 C.J. p. 980 n. 87; p. 982 n. 2; p. 1023 n. 79; p. 1049 n. 82; 17 C.J. p. 65 n. 5 New.
Alfred L. Thwing and O. J. Larson, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Deputy Attorney General, Ralph A. Stone, County Attorney, and C. C. McCarthy, Associate Counsel, for respondent.
The defendant was indicted for arson in the first degree and convicted of arson in the second degree. He appeals from the judgment of conviction.
1. On the morning of June 23, 1925, the defendant's building in Grand Rapids was burned. He used a part of the ground floor as a shoe shop and store, and rented the rest; and he used the upper story as his residence.
The fire burst out suddenly with a cloud of black smoke, and flames. The town marshal passed the building on his rounds immediately prior to its starting. He observed nothing unusual. There was other testimony of a sudden starting of the fire. Two or three men engaged in clearing away the debris a week or so later claim that in a depression alongside the Tuomi building they found kerosene; or it may have been gasolene. This evidence may not be particularly forceful, but its effect was for the jury. Fire was not being used at the time in the Tuomi building. It could be found that the fire was accompanied by an explosion; and from all the evidence the jury was justified in finding that it was incendiary.
2. The defendant was 52 years of age, born in Finland, and a resident of this country for 23 or 24 years. He came first to Minneapolis, then went to the range country, was in Wisconsin for a while, then back to the range country where he homesteaded in 1904. After that he lived on his farm or in different towns on the range, but for 10 or 15 years on his farm or in Grand Rapids. He was a shoemaker by trade. Gradually he accumulated a stock of boots and shoes and unmanufactured material. He was industrious and worked long hours. The evidence indicates that he was prosperous in his little business. He was repairing and painting his building, and ordering new stock, as if he intended to stay. His lot, which he had recently bought, was increasing in value. He was counted a good citizen. He had a family. Two of his daughters graduated from the Grand Rapids high school, took some normal school training, and became teachers. Altogether things seemed to be going well with him.
On the Saturday before the fire his wife and boy went to the farm in his auto to stay for a few days. He was alone. The building was insured for $7,500. This was excessive. Some of the policies permitted concurrent insurance to the extent of $7,500; but the jury could find that he knew this was too much. His personal property was insured at $6,000. The evidence does not show that this was excessive. But if he collected all the insurance on the building he would be a gainer.
The defendant claims that he retired about 11:30 o'clock and went to sleep; that in the early morning two men came into his room, one carrying a flashlight; that they said that they did not want to hurt his family but were after him; that they had orders to "fix" him because of his complaining of the sale or use of moonshine about the building; that one of them slugged him; that when he awoke he was gagged, and tarred and feathered, except that "black strap" molasses was used in lieu of tar; that he partially loosened the gag, and managed to get out of the window and to the ground, first throwing out some of his property. The fire was then on. That he was gagged and feathered is not in dispute. The gag was a roughly improvised one, made of a stick with ordinary wire nails driven through, with a device to fasten behind the head. Molasses similar to that used was found in his kitchen. There is testimony that he had objected to the traffic in moonshine, and the use of it about his building, but it is not particularly definite or explicit.
The jury was not required to accept the defendant's story. It was startling. It may have thought that if the strange men wanted to humiliate him, they would have stopped with gagging and feathering him; that they would not burn the building; that the fire, coming immediately and suddenly, and with something like an explosion, was not explainable as a coincidence; and that there was a designed origin which the defendant's condition was intended to conceal. With the circumstances as the evidence showed them, and the defendant's account of them, the jury was justified in finding guilt. The circumstantial evidence was probably as strong as in State v. O'Hagan, 124 Minn. 58, 144 N.W. 410, and State v. Goldman, 166 Minn. 292, 207 N.W. 627, both arson cases; and quite as strong as in State v. Green, 153 Minn. 127, 189 N.W. 711, not an arson case.
3. A number of witnesses testified as to the defendant's good character. There was no evidence opposed. A good showing in behalf of the defendant was made. The court charged the jury:
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