People v. Wilkison

Defendant was charged with having set fire to a pile of baled hay which was owned by a corporation. His conviction followed, after which a motion for a new trial was made. The appeal is taken from a judgment of imprisonment, and also from the order denying the motion for a new trial.

The section under which defendant was prosecuted provides in part as follows (Pen. Code, sec. 600): “Every person who willfully and maliciously burns any . . . stack of hay or grain or straw of any kind, or any pile of baled hay or straw, . . . not the property of such person, is punishable, . . . ” etc. One Warrick, who it is claimed participated with the defendant in the commission of the offense, testified at the trial. He testified that on the day preceding the night when the burning occurred, he and the defendant had been drinking liquor, and that by the time evening came both of them were considerably intoxicated; that this defendant proposed that they burn the pile of hay, which belonged to the Chino Land and Water Company, saying that he, the defendant, had a grudge against that company because they had “beaten bim out of some money” at a time previous; that

It is further claimed that there was no sufficient proof of the corpus delicti, except as it was furnished by the words of the accomplice, Warrick. The corpus delicti may always' be shown by proof of circumstances. The officer who found the hay burning, and described to the jury the conditions as he discovered them, and gave a description of the character of the pile of hay, together with its situation in an open lot, furnished ample evidence from which the jury could properly conclude that the fire was of incendiary origin. The testimony of this accomplice, together with the express admission of the defendant, furnished abundant proof upon which to base a verdict of guilty. The defendant testified as a witness on his own behalf, and while he denied active participation in the setting of the fire, admitted that he went to the pile of hay with Warrick. He admitted further being present at Andrews’ house, but sought to shift the responsibility for the remark as to the grudge against the Chino company from himself to Warrick. A case was so plainly made out against the defendant upon the whole testimony, as we view it, that it would be almost inconceivable that the jury could have decided otherwise upon the proof presented. That consideration will be borne 'in mind when certain other objections urged by the appellant are considered.

It appears that two trials were had of this defendant: The information in the first ease charged that he burned a “stack of hay.” At the conclusion of the testimony, it having been shown that the hay burned was a pile of baled hay, the court directed the jury to find a verdict for the defendant on the ground of variance between the charge and the proof. The defendant had asked that the case be dismissed on the same ground. The second information was then filed, upon which this trial was had, wherein the defendant was charged

The defendant has complained that the court had no right in the first trial to give a mandatory instruction directing his acquittal, but the sole argument in support of this objection seems to be that the court should have advised but not “directed” such a verdict. We think that the defendant is not in a position to raise this objection, as the action of the court was favorable to him, rather than the contrary. The fact that he was at that time insisting upon his motion

The court in instructing the jury stated the definition of the word “malice” as the same is found in subdivision 4 of section 7 of the Penal Code, as follows: “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” The court gave a further instruction to the jury in which the jury was advised that it was necessary for the prosecution to prove malice, as it was one of the material elements of- the offense, and stated: “And in this connection, you are instructed that malice is not presumed, and you cannot presume that any act of the defendant was malicious, but the malice on the part of the defendant must be established by the prosecution as one of the material elements of the offense, and you must be satisfied that the acts of the defendant were malicious to the same extent that you must be satisfied with any other material element of this offense.” The appellant insists that the malice mentioned in section 600 of the Penal Code is a particular malice which becomes as of the intent with which the crime is committed, and is not such malice as is defined by subdivision 4 of section 7 above quoted. The code definition of malice is applicable in all cases where the word “malicious” is used in the code as the part of the definition of an offense. It is only in cases where in the description of the offense some qualification is made as to the meaning of that term or as to the proof thereof, that a defendant has a right to further instruction upon that subject. We find in the ease of People v. Dice, 120 Cal. 189 , [ 52 Pac. 477 ], where the charge was murder, that the supreme court sustained the giving of an instruction which declared the definition of malice

It is further claimed that the court erred in allowing proof to be made of the fact that a number of fires were set by War-rick and the defendant after the pile of baled hay was kindled and on the same night. Conceding that proof of after-committed offenses is not admissible in support of a criminal charge, we feel wholly justified in this case in resolving the error against the defendant for the reason that upon the whole case we think that the conviction was just, and that there has been no miscarriage of justice. The chief points relied upon by the appellant have now been considered. The instructions of the court were quite complete and seem to have fully stated the law applicable to the ease.

The judgment and order are affirmed.

Conrey, P. J., and Shaw, J., concurred.