
    POZIL et al. v. STATE.
    (No. 8876.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.
    Rehearing Granted May 5, 1926.)
    1. Criminal law <&wkey;553 — Jury need not accept as true statements of witnesses, either for state or defendant.
    Jury need not accept as true statements of witnesses, either for state or defendant, especially when such witnesses are interested to an extent that might ordinarily affect their testimony.
    2. Arson <8=e40.
    Defendants’ guilt in prosecution for arson held for jury, where state’s circumstantial evidence conflicted with defendants’ evidence of alibi.
    3. Criminal law <&wkey;452( I) — Witness who inventoried stock of goods in store after fire, might testify to their value in prosecution of proprietors for arson.
    Witness, who inventoried stock of goods in store after fire, held properly permitted to testify to amount of values found, in prosecution of proprietors for arson.
    4. Criminal law &wkey;>478(l) — Fire chief, with more than 30 years’ experience as fireman, held qualified to testify in prosecution for arson that fire was oil or gasoline fire.
    Eire chief, with more than 30 years’ experience as fireman, held qualified to testify in prosecution for arson that fire was oil or gasoline fire, based on his knowledge that such fires made bluish flame.
    5. Criminal law &wkey;ri 166(^j (12) — Court’s explanation to jury that ordinarily defendants’ testimony is not put before grand jury investigating matter which might lead to indictment held not prejudicial to defendants.
    Court’s explanation to jury that ordinarily defendants’ testimony is not put before grand jury investigating matter which might lead to indictment held not prejudicial to defendants seeking to ascertain whether jurors were prejudiced against parties indicted for arson.
    6. Grand jury &wkey;>41. '
    Grand juror’s testimony in prosecution for arson that clothing from burned building which was brought before grand jury was damp and smelled of oil or gasoline held proper.
    On Motion for Rehearing.
    7. Arson c&wkey;37(l).
    Circumstantial evidence held insufficient to support conviction of proprietors of burned store for arson.
    8. Criminal law <^>552(3) — Where circumstantial evidence is relied on to sustain conviction, it must exclude every reasonable hypothesis of defendants’ innocence.
    Where circumstantial evidence is relied on wholly to sustain conviction, circumstances must exclude every other reasonable hypothesis except that of defendants’ guilt, and must go further than- raising probability or suspicion.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    A. Pozil and another were convicted of arson, and they appeal.
    Reversed and remanded.
    C. W. Croom, A. H. Goldstein, and S. G. Croom, all of El Paso, for appellants.
    Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellants were convicted in the district court of El Paso county of arson, and the punishment of each fixed at two years in the penitentiary.

The charge of the court on circumstantial evidence was full and fair, as was also the charge on alibi, and rendered unnecessary the giving of special charges 2, 3, 4, 5, and 6 asked by appellants. The test of exclusion was plainly stated in the charge on circumstantial evidence as follows:

“The circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion that the property was willfully set fire to and burned by the defendants. It is not sufficient that the circumstances render probable a willful burning and that the defendants committed it, but they must exclude every other reasonable hypothesis than that the property was willfully set fire to and burned by the defendants themselves.”

On the subject of alibi, the charge contained the following:

“The defendants contend that, if there was a willful burning, then they were, at the time the property was set fire to and burned, at another and different place from that where the property was set fire to and the burning occurred, and therefore were not and could not have been the persons who set fire to and burned the property; and, if the evidence raises in your mind a reasonable doubt as to the presence of the defendants, or either of them, at the place where the burning occurred at the time the fire was set to the property, if there was any willful burning, you will acquit the defendant or defendants as to whom you have such reasonable doubt.”

Very serious complaint is made here of the insufficiency of the testimony. It seems not controverted that the fire was of incendiary origin. Same occurred about 1:30 a. m. on Sunday night, and the alarm brought the fire department to the scene in a few minutes. All the doors of the building were found locked, but the firemen broke in the door to a back room where the fire seemed- to be principally located, and extinguished it in a few minutes. Not a great deal of the stock in the store was damaged. The fire chief of El Paso, -who had more than 30 years’ experience as a fireman, testified that within his knowledge oil, gasoline, etc., made a bluish or bluish white flame, different in color from a flame made by burning wood, and that in the corner of the room where the fire was he observed flames of that character. They would not yield to ordinary application of water. A search of the main store building revealed a number of garments 'saturated with oil- or gasoline and so placed as to be under and near other inflammable articles. No pretense is made but that these articles were thus placed for the purpose of increasing the rapid progress of the flames if same had been communicated to this part of the store.

Appellants reached the scene shortly after the fire department and claimed that the store hp.d evidently been robbed, and called attention to some empty boxes as sustaining their proposition. It was in testimony that shirts and articles, such as had apparently been in said empty boxes, were later discovered in grips piled up on a showcase. The theory advanced by the appellants at the time was that -the store had been robbed and a fire started by the robbers, apparently for the purpose of concealing their work. It was in testimony that a night watchman, who had been in the employ of appellants, was discharged by them on the 4th of March preceding the fire on the 10th. It was also in testimony that within six weeks preceding said fire appellants had increased their insurance quite heavily; it being shown that on the 24th of January they took out $5,000 worth of insurance on stock and fixtures, and on the 29th $5,000 more, and then a little later $3,000 more, and that in February they took out $10,000 use and occupancy insurance. It was also testified by a representative of one of the insurance companies that appellants represented to him or his company that they had about $38,000 worth of stock when they increased this insurance. The witness testified that an inventory made after the fire, including an estimated value of $1,000 for stock injured in the fire, disclosed a valuation of about $20,000.

For the defense it was shown by 'several witnesses that on the night of the fire both appellants attended a card party, and that about 10 o’clock they left said party to go out to some point where the daughter of one of the appellants was in a car which she was unable to start. The witnesses at the card party said the appellants returned in about an hour and remained at the card party until it broke up near midnight. The wives of appellants located them at home from then until the alarm of fire came. The son and daughter of appellant Pozil testified to being in their car on said night at about 10 o’clock, and that they could not start it and telephoned, and that appellants came presently to the place where- they were and worked over the car for quite a while. These are substantially the facts. We are not able to say that the jury’s conclusion therefrom evidences passion or prejudice, or that same is so wholly without evidence to support it as to call on this- court to revise their conclusion and to reverse the case. The jury are not compelled to accept as true the statements of the witnesses either for the state or the defendant, and especially when said witnesses ’ are intei’ested to an extent that might ordinarily affect their testimony. .Both appellants left the card party about midnight. They lived in the town where the fire occurred. Their whereabouts from that time on were accounted for by themselves and their wives. As above stated, the fire was clearly set by some one. The city inspector testified that he had examined the wiring, etc., of said building shortly before the fire, and that it was all right. The gasoline saturated garments scattered at places in the building would seem to indicate a purpose of more deliberate and complete destruction than would likely follow any hasty attempt by robbers to conceal tbeir steps. Tbe interest of appellants in the subject-matter of the fire, the recent heavy increases of insurance on their part, the discharge recently before the fire of the only man who slept in the building, the unsupported and apparently unreasonable explanation offered by appellants at the time — all these matters, together with any other legitimate deductions from the testimony, were for the jury, and we are loath to disturb a verdict finding as much support in the testimony apparently as this one does.'

We have examined each of the bills of exception. We believe that the witness who made the inventory of the stock of goods after the fire was properly permitted to testify to the amount of values found, and that the chief of fire department showed himself to have sufficient familiarity with fires caused by burning oil, etc., to testify that the fire he observed burning in the corner of the back room was an oil or gasoline fire.

We have carefully examined the bill of exceptions complaining of the fact that the court explained to the jury the ordinary method by which an indictment was returned, and are of opinion that nothing in it was capable of any injury to the rights of appellants. Appellants were seeking to inquire of the jury if they had entertained a prejudice against parties indicted for the offense of arson, and in connection with the questions along this line the court explained to the jury that ordinarily the defendant’s testimony was not put before the grand jury investigating any matter which might lead up to an indictment.

The fact that a grand juror was permitted to testify that some of the clothing .taken from the burned building on Sunday night was brought before the grand jury on the following Tuesday, and that it was still damp and smelled of oil or gasoline, would not seem to be' objectionable as violative of the rules of secrecy imposed by the statute upon grgnd jury investigations. The authorities are numerous holding that, if such matters become material in the administration of justice, they may be put before juries by proper testimony.

Special charge No. 1, asked by appellants, appears to us to not embrace a proper statement of the province of a jury and ’to be an innovation on the well-understood charge on the law of circumstantial evidence.

Finding no error in the record, and being unable to agree with any of appellants’ contentions, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is urged with much earnestness that the evidence is insufficient to sustain the conviction, that the crimina-tive facts relied on by the state lose much of their force when analyzed in connection with the other evidence and are not sufficiently cogent to exclude every reasonable hypothesis except that of appellants’ guilt which is required in a case dependent wholly upon circumstantial evidence.

The store occupied by appellants had a partition in it cutting off a room in the rear which will be referred to as the “back room.” The fire originated here, and the damage done was confined mostly to things stored in this back room and to merchandise on shelves' against the partition wall on the inside of the main store. The merchandise stored in the back room was referred to by appellants as th,e “reserve stock.” The evidence seems to establish beyond question that the fire was of incendiary origin. Coal oil or a low grade of gasoline appeared to have been used in one comer of the back room and also to have been thrown upon boxes and upon the goods on shelves therein. Gar-m'ents of various kinds saturated with this same substance were found scattered in a number of places in the main store. The fire was never communicated to them. No inflammable train seems to. have been laid between these oil-soaked garments, nor between them and where the fire originated; at least no evidence appears indicating this. The fire was discovered about 1:30 at night. The proof shows it could not have been burning more than 30 minutes when discovered and the alarm given, which was answered promptly by the fire department. There is no evidence indicating that the fire was set by a “slow process.” The state was not able to show that either of appellants were at or near the store later than 10 o’clock prior to the fire. They with their wives were .attending a party. Mr. Pozil was called by his daughter about 10 o’clock to come and assist in starting an automobile with which she was having trouble. Appellants left the party together in Jaffe’s car. They testified that they drove by the store and noticed the lights in the show window were on. One of them turned the lights off from a switch on, the outside of the building by the use of a key. The state apparently did not know that appellants went by the store upon this occasion until the fact was disclosed by them.

It seems to have been the contention of the state that appellants set fire to the building for the purpose of securing the insurance which had recently been largely increased. This increase of insurance is one criminative fact relied on. Analyzing the evidence upon this point, it shows the fire occurred on the 10th of M{arch. On the 1st of January preceding appellants’ books showed they had some $38,000 worth of merchandise on hand, at which time they had only $3,500 insurance on merchandise and $3,000 on fixtures. Between the 1st of January and the time of the fire they took out additional insurance of $11,000 on merchandise and $2,000 on fix- ’ tures, a total new insurance of $13,000. There seems to have been no contention during the trial that appellants were overin-sured upon fixtures. At the time of the fire, the total insurance on merchandise was $14,-500. The lowest estimate of the value of the merchandise at the time of the fire was shown hy the testimony of one of the insurance adjusters which is epitomized in this statement by him:

“The total, as shown by the memorandum and other information I obtained there of the stock on the day before the fire, in my opinion is about $20,000.”

In this estimate the value of the goods in the back room was not included. Taking the hooks of appellants as to the value of the goods on hand January 1st; together with the sales and purchases since that date, they show that they had on hand at the time of the fire some $33,000 worth. If the estimate of the insurance adjuster that $20,000 was the value of the goods in the main store be taken (disregarding the value of the merchandise in the back room), the $14,500 insurance on merchandise would still leave appellants unprotected in the amount, of $5,500. If the book value of $33,000 be taken, they were unprotected in the amount of $18,500. All of the evidence shows that on the 1st of January appellants were greatly underin-sured on merchandise, and, while the increase of insurance between then and the time of ‘the fire may be regarded by the'state as a suspicious circumstance, it is not inconsistent with the theory that they would have used poor business judgment not to have increased the insurance. We have searched the record to ascertain if possible whether appellants were dissatisfied with the business they were doing between January 1st and March 10th. We have found no expressions attributed to either of them indicating this. The only evidence throwing light upon it is that since the 1st of- January their purchases amounted to $1,272.39 and their sales during that time amounted to $5,617.92. There is nothing in the record showing the “overhead” expense incident to conducting the business. No legitimate conclusion can be drawn from the evidence that appellants were seeking to liquidate their business by employing the method of burning it out and collecting the insurance.

Some importance seems to have been attached to the fact that some 6 days before the fire the services of the night watchman, who had been employed by appellants for some time prior thereto, had been dispensed with. In our original opinion we referred to the severing of the relations between the night watchman and appellants as “the discharge recently before the fire of the only man who slept in the building. * * * ” It is pointed out in appellants’ motion for rehearing that the transaction in which the night watchman’s services were dispensed with cannot properly be regarded as a discharge of him by appellants. It appears from the statement of facts that Pozil had found the night watchman (Trost) asleep on one or two occasions. The testimony of Trost himself as to what occurred at the time his services as night watchman were dispensed with is as follows:

“I had been employed by them (appellants) as watchman down at wliat is known as the Golden Rule Store. I quit there March 4th. I quit the 4th and the fire started on Monday morning the 10th. I quit a week before the morning-of the fire. * * * He (Pozil) says that -‘We will have to get the janitor for the job if you are not on the job.’ I spoke up and says: T quit; I can’t work all day and all night; that is too much of a strain on a person.’ He said: ‘Ah right, quit.’ ”

We do not think from the foregoing that the inference can be drawn that appellants had discharged the night watchman in order to give them an opportunity to carry out an intention to bum the store. Trost seems to have quit his job because he was criticized by one of the appellants for his lack of diligence as a watchman. There appears to be no foundation for just criticism of appellants for letting Trost go as a watchman, nor for regarding this as a criminative fact against them.

At the time our original,opinion was written, we were under the impression that appellants claimed the night of the fire that the store had been burglarized and set on fire to prevent the discovery of the act. We were in error in this regard. The evidence shows that when asked by the fire chief (Mr. Ray) the night of the fire as to their opinion of its origin, appellants stated they did not know. The next day some suggestion was made by one' of them that probably the store had been burglarized, and attention was called to some grips on top of a show window. On examination, these grips were found to be packed with shirts and other articles of wearing apparel. Upon closer analysis of this testimony, we fail to see the cogency of it as a criminative fact against appellants. The evidence shows that burglary was not uncommon, and that efforts had been made to enter the store while Trost was on duty as watchman there.

If it be conceded that the facts raise a strong suspicion that appellants may be guilty, yet this does not meet the require\ments of the law, for, where circumstantial evidence is relied on wholly, the circumstances must exclude every other reasonable hypothesis except that of appellant’s guilt, and must go further than raising a probability or suspicion. Pogue v. State, 12 Tex. App. 283; Hogan v. State, 13 Tex. App. 319; Kunde v. State, 22 Tex. App. 99, 3 S. W. 325; Gay v. State, 42 Tex. Cr. R. 450, 60 S. W. 771; Hernandéz v. State (Tex. Cr. App.) 72 S. W. 840; Brown v. State, 67 Tex. C. R. 543, 150 S. W. 436.

In determining the sufficiency of the evidence, we have considered only that which could be criminative in its nature. If we consider that introduced by appellants, it raises a strong ease of alibi. The testimony shows that both appellants with their wives attended a party at a neighbor’s on the night of the fire; that about 10 o’clock the daugh- ' ter of Pozil called him over the phone at this neighbor’s requesting him to come and assist in getting her automobile started. Po-zil went with Jaffe in-the latter’s car to the point where Pozil’s daughter was. It was on this trip they passed the store, and, according to their evidence, turned the light out in the show window. After some delay they got the Pozil car started, but, for fear Missi Pozil might have further difficulty with it, they followed her in the Jaffe car to the Po-zil home. Here they went in the house and washed their hands and then returned to the party, having been gone from three quarters of an hour to an hour. They finally left the party some time after 12 o’clock. Up to this point their whereabouts seems to be accounted for by disinterested parties. They reached their homes about 12:20. The fire was discovered at 1:30. The whereabouts of each of appellants during this hour and 10 minutes is accounted for only by their own testimony and that of their wives, which places them at home, where they were notified by telephone that the store was on fire. According to the testimony of the fire chief and others, it was their opinion the fire had been burning about 30 minutes when discovered. This would have given appellants only 30 or 40 minutes to come to the store, set the fire and return to their homes. Of' course the jury was not compelled to accept the testimony of appellants or their wives, but all the evidence taken together leaves the more reasonable conclusion to b'e that, if appellants were in any way connected with. the fire or had knowledge thereof, the fire was actually started by some one else rathef than by either of them.

We are always loath to disturb the verdict of a jury, but we have been convinced upon a re-examination of the record that the evidence in the present case does not measure up to the certainty required in cases dependent wholly upon circumstantial evidence. We believe our duty demands the setting aside of the former order affirming the judgment, and that the cause, be now reversed and remanded for a new trial, and it is so ordered. 
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