
    People, Plaintiff and Appellee, v. Pujols, Defendant and Appellant.
    Appeal from the District Court of G-uayama in a Prosecution for Incendiarism.
    No. 767.
    Decided May 26, 1916.
    Allegations — Pboop.—Allegations of fact by the parties are not proof of the same upon which a decision may be based.
    Incendiarism — Circumstantial Evidence. — -The fact that a person charged with ■ thé crime of incendiarism insured his store for a larger sum than the value of Ms stock and endeavored to' collect nearly seven thousand dollars as a consequence of the fire when the valué of the goods burned was only about two thousand dollars is a grave indication of guilt which becomes the more pronounced when it is considered that on the day before the fire he removed a cartload of goods from the store; that'open cans of gasoline were found close to a pile of rice; that he was seen to leave the store about the time the fire started, and that he obstructed efforts to save the store by stating that it contained inflammable material.
    New Tbial — Newly Discovered Evidence — Cumulative Evidence — Diligence.— A motion for a new trial on the ground of newly discovered evidence is properly overruled when all of that evidence is cumulative and was not discovered after the trial. It must be shown that with reasonable diligence it could not have been discovered before the trial.
    The facts are slated in the opinion.
    
      Mr, José de Diego for the appellant.
    
      Mr. Salvador Mestre, fiscal, for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

On November 12, 1912, Juan Pujols was charged in the District Court of Gruayama with the crime of arson in that on the night of September 4, 1912, he set fire to the house of •Francisco Roger in which the defendant had a mercantile establishment in the town of Aibonito of the Judicial District of Gruayama. The day before the information was filed Pujols moved the said court to dismiss the action on the ground that more than sixty days had elapsed since his arrest without any information having been filed against him, and that he had not been taken before any judge for the purpose • of investigating whether there was probable cause for his arrest. Although the ruling on this motion is not included in the transcript of the record, we must presume that it was against the defendant inasmuch as the case was prosecuted to judgment, but as it was not verified and it is not shown that any evidence was introduced, it is not necessary to consider whether the lower court committed error in overruling the same, as is claimed by Pujols in his appeal; for allegations of fact by the parties are not of themselves alone sufficient to prove the same as a basis for our decision.

The same is true of the defendant’s demurrer to the information on the ground.that the District Court of Gruayama bad no jurisdiction of tbe case because an application for a writ of babeas corpus was pending in tbe District Court of Ponce and because be bad not been taken before a judge for tbe purpose of investigating wbetber there was probable cause for his imprisonment; for although it is stated that an affidavit was filed in support .of certain grounds of tbe demurrer, we fail to find it in tbe transcript of tbe record or even anything to show that it was filed.

However, it is observed from tbe brief of appellant Pujols that be gives scant attention to those questions, for tbe real ground of bis appeal is tbe insufficiency of tbe evidence to' support tbe verdict of guilty found by tbe jury and tbe consequent judgment rendered by tbe court. Prior to tbe rendition of tbe judgment Pujols moved tbe court to grant him a new trial on tbe ground that the verdict was contrary to tbe evidence, and from both tbe order overruling bis motion and tbe judgment be took this appeal, in which be treats tbe questions of the insufficiency of the evidence conjointly.

Tbe appellant contends that tbe evidence is insufficient because, being circumstantial, it is not sufficient to warrant tbe conviction of tbe appellant.

In support of bis information tbe fiscal introduced witnesses whose testimony showed tbe following facts: That on September 4, 1912, at about 9 p. m., tbe mercantile establishment of tbe appellant and tbe bouse of Francisco Roger, in which tbe same was located, were destroyed by fire; that tbe store was closed about 6 p.m.; that tbe appellant bad started tbe business a few months before and bad insured bis stock in tbe month of May for the sum of $8,000; that when in July or August bis stock was assessed for taxation be told tbe assessor that there were goods to the value of $10,000, but the assessor concluded that be bad only $5,000’ worth and so informed Pujols, assessing tbe stock at that amount;that on that occasion be also told tbe assessor that be did not keep books because be bad been in business only a short time; tbat on tbe day before tbe fire be sent a cart-load of goods to a store in La Plata; tbat several witnesses testified tbat at tbe time of tbe fire the goods in tbe store were worth only about $2,000; tbat tbe books of tbe appellant were destroyed by fire, but not tbe fire-insurance policy wbieb be kept away from tbe store; tbat a few days after tbe fire he sent a communication to tbe insurance company claiming tbat goods worth $6,898.72 had been destroyed; tbat tbe defendant was seen to leave tbe store at tbe moment tbe fire started; tbat close to a pile of rice two cans of kerosene were found with boles in them for tbe escape of tbe liquid; tbat the appellant warned those who were trying to extinguish the fire not to go too near as there were gasolene and alcohol in tbe store; tbat-be made no effort to extinguish tbe fire, but, on tbe contrary, left tbe place; tbat when tbe doors were burning bundles of zinc sheets fell around them, which, according to tbe testimony of an employee, were placed against tbe wall between tbe doors; tbat some days before tbe fire be tried to sell several cases of cans of gasolene, saying that be did so because otherwise be would not be paid tbe insurance money in case of fire.

Such, briefly, is tbe evidence upon which tbe jury found a verdict of guilty although tbe defendant also introduced evidence to show tbat bis- stock was worth from $6,000 to $7,000 at tbe time of tbe fire, and tbe appellant maintains tbat this evidence was insufficient to support a conviction.

Tbe appellant admits tbat tbe court’s instructions to tbe jury regarding circumstantial or presumptive evidence were correct, and after an examination of all tbe evidence we arrive at tbe conclusion tbat we have no ground for bolding tbat it did not support tbe verdict of tbe jury.

We need not consider separately tbe different circumstances which prove tbe guilt of tbe appellant, for they are so numerous and some of them are so strong that they are sufficient to support the verdict against him. For instance, the fact that he insured his store for a mnch larger sum than the value of his stock and endeavored to collect nearly $7,000 for losses caused by the fire when the value of the goods destroyed amounted to about $2,000 only, is á grave indication that he caused the fire in order to pocket the difference; and this circumstance becomes the more pronounced when we consider that on the day before the fire he removed a cartload .of goods, that open cans of gasolene were found close to a pile of rice, that he was seen to leave the store about the time the fire started, and that he obstructed efforts to save the store by stating that it contained inflammable material.

The motion for a new trial on the ground of newly discovered evidence was properly overruled because all of that evidence was cumulative and the greater part of it was not discovered after the trial, for the testimony of the appellant shows that he -had knowledge of much of it before the trial. Besides, it has not been shown that with reasonable diligence it could not have been discovered before the trial. The People v. Goitía, 5 P. R. R. 117; The People v. Díaz, alias Martillo, 5 P. R. R. 197; The People v. Milán, 7 P. R. R. 442; The People v. Rosado, 16 P. R. R. 412; The People v. Español, 16 P. R. R. 203; Delannoy v. Blondet, 22 P. R. R. 219.

The judgment appealed from should be

Affirmed.

Chief Justice Hernández and Justices Wolf and del Toro concurred.

Mr. Justice Hutchison took no part in the decision of this case.  