The Crime of Arson
Eighth and Concluding Article of a Series Which Covered Some Outstanding Cases of Incendiarism and Their Detection
IN presenting cases for prosecution in court, one should familiarize oneself with all court decisions bearing on the law which might be involved in the particular case; one should make a brief digest of all decisions having to do with fire cases so that they will be readily accessible when the occasion arises.
To illustrate the value of this procedure, some of the decisions are briefly related which arc used in many cases which arise in Massachusetts. Take for instance, the case of Commonwealth vs. Asherowski, 196 Massachusetts 342. This case arose in 1907 and the facts were briefly— a fire was discovered in a business house, the building securely locked; the presence of flammable liquids, trailers and great preparation to spread the fire and much evidence of incendiarism, with the owner’s and occupants’ whereabouts accounted for and the keys in their possession. Prior to this particular case there bad been fires with a similar set of facts and the owner and occupants being able to set up an alibi accounting for their presence in some point other than the scene of the fire, it was difficult for the prosecutor to secure convictions.
In the Asherowski case a new plan was adopted by the Fire Inspector who charged John Doe, whose correct name and address were unknown to him, with setting the fire, and charged the owner Asherowski with being an accessory before the fact. The case was tried before a jury which returned a verdict of guilty. On an appeal to the Supreme Court, the Court upheld the verdict and ruled that some person procured to do so by the defendant set the fire— that no one else could have done it without the defendant’s knowledge. That is to say. the Court laid stress ou the fact of the place being locked, great preparation of incendiarism and the keys being in the possession of the defendant. This was sufficient to show that if the defendant did not set the fire, whoever set it had to do so with the knowledge and assistance of the defendant.
As a result of this Asherowski case Fire Inspectors immediately proceeded in numerous cases on similar complaints and have met with great success. Many appeals were taken to the Supreme Court subsequent to the one already mentioned, but this case has continually been re-affirmed and additional law laid down by the Supreme Court gave the prosecution still more power along the lines already stated.
Finances and Fraud
For instance, in the case of Commonwealth vs. Herbert Cooper, 264 Massachusetts 368, facts similar to the Asherowski case, the Supreme Court said:
“It well may be found in certain circumstances that one in easy financial condition might still set the fire to defraud an insurance company.”
In this case the defendant had shown large bank deposits of actual cash. Other good law in this case: “evidence of the cost of store fixtures when new some months before the fire not admissable, but that the only pertinent evidence was as to the value of such fixtures at the time of the fire.” Also “evidence of breaking and entering in the building where the store of the defendant was located at another time was incompetent.”
Commonwealth vs. Selesnick—272 Massachusetts 354. “Policies other than those mentioned in the indictment may be properly admitted in evidence to show full amount of insurance.” This being for the purpose of proving over-insurance. Evidence is admissible to show defendant’s need of money.
Commonwealth vs. Alba—271 Massachusetts 333. “The intent to injure the insurance company may be established even though the persons expected to compel it to pay money to others than himself.” This is where someone other than the person holding the insurance policy set the fire. The court referred to the Asherowski case for support of its decision and added additional support in the case of Commonwealth vs. Kaplan, 238 Massachusetts 250 at Page 254, “A direct benefit to the defendant is not made a necessary element of the crime.”
Another and a more forcible point was brought out in the Alba case, Heretofore inspectors would be somewhat disturbed if a door were found open at the time of the fire, as this fact would lessen the chances of proving that the defendant had the exclusive opportunity to set the fire. In this Alba case, where a door was found open by the firemen, the court said “the testimony of the defendants as to locking the doors, when considered with the evidence of those who responded to the fire alarm that the doors were found unlocked, would justify an inference that the person who set the fire had gained access to the building with the keys of the defendants.”
Commonwealth vs. Haddad—250 Massachusetts 391, Page 397; “Evidence to show his financial embarrassment or that he was in need of money was competent.”
Commonwealth vs. Goldstein—114 Massachusetts 272, Page 277; “It is not material in whose name the goods were insured. The crime consisted in burning them with intent to injure the insurer, whether the defendant, or any other person, owned them or procured them to be insured.”
Commonwealth vs. Hudson—97 Massachusetts 565 at Page 566. Further substantiated by Commonwealth vs. Farmer—218 Massachusetts 506. “Evidence was admitted to show that the defendant had a strong peculiar motive to commit the crime with which he was charged. This evidence, we think, was admissible. It tends to repel the presumption which exists that a man will not commit a crime without a reason, inducement or temptation. The evidence showed undoubtedly a motive, peculiar and .special to the person accused.”
No Fire Started
Until recently there has been only one decision in Massachusetts concerning a case of an attempt to burn and this was not entirely strong. It was the case of Commonwealth vs. Peaslee—177 Massachusetts 267. The facts of this were briefly, that preparations had been made to set a fire and the person had been requested to set such fire and had completed preparations, returned to his home and later started out again to set the fire. En route he changed his mind and did not set the fire. He and the owner who hired him were arrested and charged with the attempt. They were found guilty and on an appeal, the Supreme Court ruled that there had not been an attempt, as no fire had actually been started, but that had the defendant who was to set the fire, been apprehended at the scene and frustrated in the attempt by the authorities or frightened away, it might have been different. The Court also rules that the owner could be guilty of soliciting the other to commit the felony. Therefore the question of an attempt to start the fire was somewhat vague.
On the adoption of the Model Arson Law by the Commonwealth of Massachusetts, which contains a provision that an attempt shall be construed where there is the placing or distribution of any flammable explosive or combustible material or substance or any device in or against the building in an arrangement or preparation with intent eventually to wilfully and maliciously set fire to or burn such building, this situation was clarified.
Following the adoption of this law a case arose in which the facts briefly were these: A man was hired to burn a certain hotel. He went to the scene, gained admittance and made extensive preparations to set a fire, but before lighting the candle, which had been placed at a point to furnish the initial ignition, he was apprehended and as a result he and five others were indicted. Convictions were secured before a jury and an appeal was taken. While the facts of this particular case would justify a conviction under the old case of Commonwealth vs. Peaslee, as the defendant had been apprehended in the attempt, the Superior Court went further and laid down the law that the attempt is now covered by statute and the particular case comes within the statue. The Court said among other things “the statute has changed the pre-existing law. The purpose of its plain words is to declare a comprehensive definition of attempt broad enough to include such acts as shown to have been performed by the defendant. That is apparent from a simple reading of its words and an interpretation of them in their ordinary sense.” Consequently in future cases of an attempt, no difficulty is anticipated because of this decision, previously mentioned, upholding the statute.
This case, by the way, is Commonwealth vs. John Mehales and can be found in advance sheets 1963 only recently published, not having as yet reached the regularly compiled reports.
In this particular case an interesting point arose, in which an appeal was taken on the grounds that Mehales was hired to set the fire by the owner, and, therefore, doing it with the consent of the owner, there could be no malice against such owner.
This appeal no doubt was taken because of an old case Commonwealth vs. Makely, 131 Massachusetts 421, in which the courts said “That it would not be arson for the owner to burn his own dwelling, so consequently the person whom the owner procured to burn it could not be guilty of arson.” This decision was correct at the time because the existing statute and common law held that the burning must be malicious, but, on the adoption of the Model Arson Law, the statute was changed whereby it was illegal not only for one to burn another’s building, but also illegal for the owner to burn his own building.
Therefore, in the Mehales case, the court laid down the rule that the Makely case is no longer in effect, because now by the terms of the present statute the malicious burning of a building by the owner is mafic a crime, and added, “The malice now, under the statute, is not necessarily against the owner of the building, but that the malice, which characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose the wilful doing of an injurious act without lawful excuse. Malice in law’ is present in the case at bar because the design and intent of the defendant was to set the fire for the purpose of enabling the owner to collect insurance. There w’as malice in law towards the insurer or insurers. That is enough to constitute the statutory crime.”
The following additional references as useful ones are cited: Commonwealth vs. Vellucci, advance sheets No. 200.3; Commonwealth vs. Bade, advance sheets No. 461; Commonwealth vs. Jatfas, advance sheets No. 1969; Commonwealth vs. McCarthy, 119 Massachusetts 354; Commonwealth vs. Cali, 247 Massachusetts 20. Also Chapter 266, Section 111A, of the Tercentenary Kdition, General Laws of Massachusetts; also Chapter 192, Acts of 1932 of Massachusetts.
Briefly, this gives you a picture of how court decisions are used to very good advantage in Massachusetts.
Such a digest of cases also is valuable in forcibly bringing points concerning cases to the attention of Prosecutors who alwas appreciate ready case decisions that will support some legal point that might, if unsupported, weaken the case.