State v. Whisler

• Decision Date: 05 May 1942
• Docket Number: 45862.
• Citation: 3 N.W.2d 525,231 Iowa 1216
• Parties: STATE v. WHISLER.
• Court: Iowa Supreme Court

3 N.W.2d 525

231 Iowa 1216

STATE v. WHISLER.

No. 45862.

Supreme Court of Iowa

May 5, 1942

Cosson, Stevens & Cosson, of Des Moines, and Nichols & Nichols, of Sidney, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and John S. Redd, Co. Atty., Edward E. Eaton, and Vernon Johnson all of Sidney, for appellee.

HALE Justice.

The defendant was indicted by the grand jury of Fremont county, charged with the burning of a garage building belonging to him. To the indictment he entered a plea of not guilty. At the conclusion of the State's evidence, and at the conclusion of all the evidence, motion to direct a verdict was made by the defendant, and overruled. The jury returned a verdict of guilty; defendant's motion for new trial and in arrest of judgment was overruled, and defendant was sentenced to imprisonment in the state penitentiary. Defendant appeals to this court.

The fire which the defendant is accused of starting occurred in the early morning of January 22, 1941. The garage, of which the defendant became the owner in 1935, is located in Hamburg, is 80X86 feet, faces south on E street, and abuts on Park street on the west. It is a one-story brick-and-tile building with a metal roof, and has been occupied by the defendant ever since he became the owner, as a sales and storage garage. There is a partition extending north and south, a little west of the center of the building. In the west room is the sales room with an office occupying the northeast corner of such room and back of these are work rooms. The storage rooms are in the east part of the building. Upstairs is an attic used for a number of purposes. The fire apparently originated in the attic, a little to the east of the office. About 100 feet east of the garage, and across an open space, is a hatchery also facing south on E street. The sheriff of Fremont county and the night watchman of Hamburg were in this hatchery building from about 10:30 in the evening of January 21, until the fire was discovered by them above the roof of the garage about 1:45 in the morning of the 22d. How they came to be there, or on what information or suggestion, the record does not disclose. No one was seen by them to enter or leave the garage after 10:30 at night. On discovering fire they gave the alarm and the sheriff went to the garage, found the doors locked.and entered the garage by forcing the double doors of the storage room at the vehicle entrance. The room was filled with smoke. On entering the building he saw some automobile tires on fire, just east of the office, which fire he put out with water from the hose; and he states he smelled gasoline. He then climbed the stairway to the attic and found the floor east and south of the stairway to be burned, the space so burned being nearly 6 feet long and from 1 to 2 feet wide. The fire was between the floor and the ceiling below, with the boards not entirely burned through, but part of the floor had fallen into the room below. Various things were scattered about the attic, and among them were automobile reflectors and headlights, which were found between the floor of the attic and the ceiling below. The sheriff also found some small pieces of charred rope and some broken glass near the burned space, and the top of a bottle with a wire on it and small pieces of rope attached, but the floor was not burned at the place where the glass was found. Quite a number of articles, such as inner tubes, headlights, etc., were stored in the attic. The fire was described as "a red spot on top of the garage" when first seen.

There was evidence by employees of the garage that they had seen a jug containing a light liquid in the attic, which was covered by a floor mat, several days before the fire. Also there were, or had been, other jugs, floor mats, tubes, and automobile parts, scattered around, and some piled in the attic. At previous times cleaning of automobile parts had been done in that place. Other testimony was given by the fire chief, who came later, and said that he saw a fire downstairs and there was fire coming out of the roof, but that the only fire he could see was in the office; that he directed the firemen to put out the fire on the roof; that he was acquainted with the building, and there had been a fire in the same building several years before when the garage was operated by other owners. There was evidence of the electric wiring in the attic being poorly done, some of it merely nailed by pieces of tin to the rafters. The neon sign on the outside was still in working condition.

This is the substance of the testimony in regard to the fire itself. Other evidence will be referred to later.

The first assignment of error is failure of the trial court to sustain defendant's motion to direct a verdict, for the reason that the evidence introduced upon the trial is wholly insufficient to prove the crime charged in the indictment beyond a reasonable doubt, and for the further reason that the evidence is wholly insufficient to prove the crime of arson, or in any way to implicate or connect the defendant with the commission of said crime. We have frequently held that this court may reverse a criminal case, even though having some support in the evidence, if the verdict is clearly against the clear weight of the evidence. State v. Carson, 185 Iowa 568, 170 N.W. 781, and cases cited.

The defendant asserts that in this case there is an absence of evidence establishing the corpus delicti beyond a reasonable doubt, and therefore that no conviction can be had. The crime with which the defendant is charged is a violation of section 12991.2, providing a penalty for any person who willfully and maliciously sets fire, or burns or causes to be burned, or who aids, counsels, or procures the burning of certain buildings, of himself or another. It must be established that the burning was willful and malicious and was not an accidental burning. State v. Millmeier, 102 Iowa 692, 72 N.W. 275. In State v. Cristani, 192 Iowa 615, 185 N.W. 111, 112, the court said: "The mere fact that the building was burned and that its origin is unknown or involved in mystery is not evidence that it was feloniously ignited. In addition to the fact of the destruction of the building by fire, it must appear by the evidence beyond a reasonable doubt that the fire was caused by the willful act of some person criminally responsible for it. * * * In the absence of such proof the presumption obtains that the fire was accidental, or at least that it was not of criminal origin." The corpus delicti may be established by circumstantial evidence, but, as is the rule in all cases where circumstantial evidence is relied upon, the state of facts established must be inconsistent with any theory other than the guilt of the accused and the facts and circumstances disclosed and relied upon must be irreconcilable with the innocence of the accused in order to justify his conviction. As stated in the Cristani case: "It is true, of course, as argued by the state, that the corpus delicti may be established by circumstantial evidence, but this does not make it the subject of mere conjecture or of doubtful inference, nor is it to be found from any combination of circumstances which may reasonably be reconciled with the theory that the fire was not of a felonious origin. Nor is it sufficient if the circumstances relied upon in support of the charge are such as excite suspicion only, but fall short of proof." (Citing cases.)

The case of State v. Millmeier, 102 Iowa 692, 72 N.W. 275, is cited by both the State and the defendant. It may be well to note what is therein said about corpus delicti. 102 Iowa at page 698, 72 N.W. at page 277. The court states: "Counsel do not agree as to what constitutes the 'corpus delicti,' and we find that courts are as far apart as counsel in defining the term. The expression means, primarily, the 'body of the offense.' But, in applying it, courts and text writers have not at all times agreed as to what is meant by the 'body of the offense.' In our opinion, the term means, when applied to any particular offense, that the particular crime charged has actually been committed by some one. It is made up of two elements: First, that a certain result has been produced, as that a man has died, or a building has been burned, or a piece of property is not in the owner's possession; second, that some one is criminally responsible for the result. [Citing cases.] Applying this rule to an arson case, we held, in State v. Carroll, 85 Iowa 1, 51 N.W. 1159, that there could be no conviction without satisfactory proof that the building was feloniously, willfully, and maliciously burned by some one, and was not an accidental burning."

Various cases are cited by the State. The limits of an opinion will not permit an analysis of these cases, or more than a mere reference to them. In State v. Bazoukas, 226 Iowa 1385, 286 N.W. 458; State v. Traas, 230 Iowa 826, 298 N.W. 862; State v. Gates, 197 Iowa 777, 197 N.W. 908; and State v. Billberg, 229 Iowa 1208, 296 N.W. 396, the evidence was much stronger than in the case at bar.

Other cases cited are on the question of proof by circumstantial evidence, about which there can be no question if the facts warrant. We have referred to the fact that there must be malice and willfullness, and, in addition, proof that the fire was not accidental. Evidence of motive is admissible, but mere motive alone is not sufficient to support a conviction.

It will be more convenient to take up the evidence upon which the State relies to support a conviction, as shown by the State's fourteen points stated at the conclusion of its argument. The State suggests in argument, and there can be no question that each case generally must rest...