$368. Threats and declarations by the accused-Remoteness.Any statements, utterances or declarations which are connected with the res gesta of the burning are receivable. Under this head may be grouped threats made prior to the fire, and, where it is his own property which is destroyed, the statement of the accused as to the probable cause of the fire, the value of the property which was burned and of the amount of the insurance thereon. So, too, any declarations made by him or in his presence and adopted by him, contemporaneous with and explanatory of the main transaction are admissible.1

In a prosecution for arson in setting fire to the dwelling or other building owned by another person, a declaration made by the accused that, as he had been put out of the dwelling no one else would ever prosper in that place,18 or threats of bodily harm made by him and directed against the owner, are always admissible to show malice and ill-well. It is not material that the threats were vague and general in their character, and that they did not point directly to the property which was burned, if they indicated hostility to its owner. 19 So it may be proved that the accused had said to the person whose place of business was burned that, if were not for him, he would not care if the town were in ashes.20 Threats will not be rejected because directed against members

723, 29 Pac. 568, 30 Pac. 486. An allegation of burning a dwellinghouse is not sustained by proof of burning a house not a dwelling. Commonwealth v. Hayden, 150 Mass. 332, 333, 23 N. E. 51; Commonwealth v. Wellington, 7 Allen (Mass.) 299, or a dwelling which is vacant. People v. Handley, 93 Mich. 46, 48, 52 N. W. 1032. Cf. State v. Carter, 49 S. Car. 265, 27 S. E. 106. Questions of law and fact, see Elliott Evidence, § 2809.

"Commonwealth v. Wesley, 166 Mass. 248, 44 N. E. 228; People v. Eaton, 59 Mich. 559, 26 N. W. 702; State v. Ward, 61 Vt. 153, 17 Atl. 483; State v. Lockwood (Del., 1909), 74 Atl. 2.

18 People v. Eaton, 59 Mich. 559, 561, 26 N. W. 702; State v. Ledford, 133 N. Car. 714, 45 S. E. 944. Express threats to burn the house of another, with the whole conversation which led up to them, are particularly relevant. State v. Lytle, 117 N. Car. 799, 23 S. E. 476; Prater v. State, 107 Ala. 26, 18 So. 238. See also, Elliott Evidence, § 2811.

19 Davis v. State, 152 Ala. 82, 44 So. 545; Ford v. State, 112 Ind. 373, 383, 14 N. E. 241; State v. Crawford, 99 Mo. 74, 77-79, 12 S. W. 354; State v. Barrett, 151 N. Car. 665, 65 S. E. 894. 20 Morgan v. State, 120 Ga. 499, 48 S. E. 238.

of the owner's family generally who did not reside in the building which was burned or because they show a general intention to be revenged, though not by any particular means.21 It may be shown that the accused had threatened the owner of a house adjacent to that which was burned,22 or a person who, though not the owner, had goods stored in the building. 23 The length of time which has elapsed between the utterance of the threat and the destruction of the building, though, perhaps, affecting the weight of the threat as evidence, is no objection to its admission."

24

§ 369. Relevancy of evidence to show the intent-Proof of other similar crimes-The intent to set fire must be shown, whether the crime alleged is the arson of one's own house or of some other person's. Direct proof of an intent to commit the crime is never required. The criminal intent may be inferred from the circumstances attendant on the burning,25 or from the hostility of the accused to the owner. If the accused is charged with the arson of his own house it may always be shown to supply a motive that he was financially embarrassed at the time," and that he had overvalued and unduly insured his property.

26

28

But it cannot be proved against the accused, who is charged with having committed arson for the purpose of securing insurance money that he had had fires in buildings other than the one mentioned in the indictment. And generally where the accused

29

"Johnson v. State, 89 Ga. 107, 14 S. E. 889; Clinton v. State (Fla., 1909), 50 So. 580.

25 Commonwealth v. Goldstein, 114 Mass. 272; State v. England, 78 N. Car. 552; State v. Lytle, 117 N. Car.

"Bond v. Commonwealth, 83 Va. 799, 23 S. E. 476; Luke v. State, 49 581, 3 S. E. 149.

129.

State v. Emery, 59 Vt. 84, 7 Atl.

24 Commonwealth v. Quinn, 150 Mass. 401, 23 N. E. 54; Clinton v. State, 56 Fla. 57, 47 So. 389. A threat, directed against a building specified, is not excluded as evidence, by a subsequent change in the ownership of the building. State v. Fenlason, 78 Me. 495, 7 Atl. 385; Commonwealth v. Crowe, 165 Mass. 139, 42 N. E. 563.

Ala. 30, 20 Am. 269.

20 See ante, § 368.

28

State v. Hull, 83 Iowa 112, 48 N. W. 917. See Elliott Evidence, § 2810. Stitz v. State, 104 Ind. 359, 4 N. E. 145; Commonwealth v. Hudson, 97 Mass. 565; People v. Sevine (Cal.). 22 Pac. 969; State v. Cohn, 9 Nev. 179; People v. Kelly, 11 App. Div. (N. Y.) 495, 42 N. Y. S. 756; State v. Brand (N. J. L.), 72 Atl. 131; Hooker v. State, 98 Md. 145, 56 Atl. 390.

is charged with arson for the purpose of securing insurance money evidence showing or tending to show that he was interested in preserving the building that has been burned is competent.30

31

32

The amount of the loss, the value of the whole property," and the fact that the defendant consented to a settlement of the loss at one-half of the adjusted amount of the same,33 are always relevant in evidence. The written proof of loss sworn to by one who is indicted for arson of his own buildings, where it describes them and their contents, is admissible against him, though he should be permitted to show that other property of his was destroyed by the fire which is not mentioned in the writing.35 But evidence of a demand upon the accused, to allow an examination of the personal property destroyed; and his refusal should be rejected as not tending to show his guilt.36 If the accused refuses to produce his insurance policy, its contents, execution and delivery may be proved by parol evidence. Except, perhaps, to show that burning was intentional, evidence of the burning of other property belonging to the accused is not received. Thus, when it is charged that the accused has set his own house on fire, it may be shown that at some previous time the same or other buildings belonging to him had burned, or that he had endeavored to induce some one to set fire to his buildings.38 Evidence that the accused

30

37

Dunlap v. State, 50 Tex. Cr. 504, Cal. 403, 24 Pac. 1091; Meister v. 98 S. W. 845. People, 31 Mich. 99; People v. Four"People v. Sevine (Cal.), 22 Pac. nier (Cal., 1897), 47 Pac. 1014; People v. Jones, 123 Cal. 65, 55 Pac. 698; Smith v. State, 52 Tex. Cr. 80, 105 S. W. 501; Knights v. State, 58 Neb. 225, 78 N. W. 508, 76 Am. St. 78n.

909.

32

State v. Ward, 61 Vt. 153, 17 Atl. 483; State v. Harvey, 130 Iowa 394,

106 N. W. 938.

State v. Brand (N. J. L., 1909), Evidence of other fires was held to

72 A. 131.

34

People v. Mix, 149 Mich. 260, 112 X. W. 907.

*People v. Mix, 149 Mich. 260, 112

N. W. 907.

have been improperly admitted in People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846, reversing 20 App. Div. (N. Y.) 139, 46 N. Y. S. 1020. Evidence of other offenses in prose

People v. Brown, 110 App. Div. cution for arson, see 62 L. R. A. (N. Y.) 490, 96 N. Y. S. 957. 193, note; 105 Am. St. 996, note; El

37

Knights v. State, 58 Neb. 225, 78 liott Evidence, § 2813. Evidence of N. W. 508, 76 Am. St. 78n. previous attempts, see Elliott Evidence, § 2812.

38

Commonwealth v. Bradford, 126 Mass. 42; People v. Lattimore, 86

40

forbade the removal of property from the house of which he was the owner while it was burning is admissible to prove that he started the fire. 39 If the accused is charged with setting fire to the house of another, evidence to show his familiarity with the premises, and that goods which were in the house when it was burned were subsequently found in a trunk in his possession, is always admissible. So it may be shown that a few days before the fire one who is charged with burning a building owned by himself disposed of personal property, taken from the building in such a way as to exempt them from all possibility of being destroyed by the fire. 12

14

41

The opinions of fire insurance experts, based on an examination of the debris, are admissible as to the quantity of goods which have been burned, and perhaps as to the origin of the fire. The location and occupation of buildings near that which was burned may be shown by maps, photographs or otherwise, to enable the jury to understand the evidence more clearly." A photograph of the burned premises, if it is properly verified as correct, is not inadmissible merely because it shows other premises which were owned by the accused and which had been destroyed by a previous fire if the court instructs the jury that no inference was to be drawn from it that the accused was guilty of setting fire to the other building.**

46

§ 370. Evidence of preparation to show that the accused was near the burned premises.-Evidence tending to show that the defendant made preparations to commit the crime is always admissible. So it may be proved where and how he procured gunpowder with

39 Bluman v. State, 33 Tex. Cr. 43, 21 S. W. 1027, 26 S. W. 75.

40

"People v. Cassidy, 133 N. Y. 612, 30 N. E. 1003. If it appears that the

'People v. Murphy, 135 N. Y. 450, defendant had removed goods from 32 N. E. 138.

"State v. Vatter, 71 Iowa 557.

the burned building prior to the fire he must be permitted to explain the

42 State v. Mann, 39 Wash. 144, 81 removal. People v. Fournier (Cal., Pac. 561.

43

Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 18 N. E. 804, 9 Am.

St. 598.

1897), 47 Pac. 1014.

46 Commonwealth v. Fielding, 184 Mass. 484, 69 N. E. 216. Use of photographs in criminal cases, see 75 Am.

"Cook v. Johnston, 58 Mich. 437, St. 477, note; 114 Am. St. 427, note. 25 N. W. 388, 55 Am. 703.

47

which the fire was started, even where this involves proving another crime; and that he was seen in the building after business hours or observed skulking near by.

48

The testimony of a prosecuting witness, that he took extraordinary precautions against fire because of other fires, is relevant to show the incendiary origin of the fire in question; but evidence that other buildings in the vicinity were burned about the same time as the building in question is always irrelevant, in the absence of evidence connecting the defendant therewith. 48a It is always relevant, particularly in the case of the crime of arson, which is usually committed at night and with the greatest secrecy, to show that the accused was seen in the vicinity of the burned building about the time of the fire, whether before or after it occurred.1o

Evidence to show that the accused was in the crowd which surrounded the building at the time of the fire is competent, and, where the fire took place in the night time, it is also competent to show that the condition of the dress or person of the accused when he was seen, was such that it might readily be inferred that he had not slept in the building that night.50 His presence near the scene of the fire may also be shown by evidence of footprints which on comparison with shoes worn by him appeared to be of the same size. The weight of such evidence is always for the jury.31

51

It may always be shown, where the footprints and the shoes of the defendant do not correspond, that he changed his shoes after he was arrested and while in jail.52

"State v. Roberts, 15 Ore. 187, 13 ted to show the accused had used Pac. 896. such a sleigh on the night of the fire; and that, on the same night, he had hired a horse, which, when driven

"State v. Crawford, 99 Mo. 74, 12 S. W. 354.

"a State v. McMahon, 17 Nev. 365, without guidance, within four days

374, 376, 30 Pac. 1000.

thereafter voluntarily chose the route

Sb Commonwealth v. Gauvin, 143 taken by the person who fired the Mass. 134, 8 N. E. 895.

"In State v. Ward, 61 Vt. 153, 17 Atl. 483, after evidence tending to connect the accused with the fire had been introduced, and it also appeared that the incendiary had driven a sleigh over a certain route, which left peculiar tracks, the state was permit

house. Heidelbaugh v. State, 79 Neb. 499, 113 N. W. 145.

50 State v. Harvey, 130 Iowa 394, 106 N. W. 938.

51 Davis v. State, 152 Ala. 82, 44 So. 545.