SUGGESTIONS

FOR

ARSON INvESTIGATORS

NATIONAL BOARD OF FIRE UNDERWRITERS 85 John Street, New York 38, N. Y.

APRIL 15, 1953

FOREWORD

This pamphlet originally was prepared for the use of the arson investigators in the employ of the National Board of Fire U ndenvriters, an association of capital stock fire insur­ance companies established in 1866. Certain detailed instruc­tions contained therein are applicable only to such investi­gators, but many of the general statements concerning the conduct of investigations are applicable to any one doing this sort of work. Therefore, in distributing this pamphlet to persons interested in the subject of arson investigations, it has been thought best to do so without eliminating those parts which have special reference to the work of employes of the National Board of Fire Underwriters.

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GENERAL PRINCIPLES The National Board of Fire Underwriters, through its

Committee on Incendiarism and Arson, maintains a corps of investigators for the purpose of aiding public authorities in the investigation and prosecution of arson and kindred crimes. These investigators are available to assist, when desired, any public official in crimes of this character regardless of whether there is insurance involved or, if involved, whether it is in member companies or in non-Board companies. The interests of the public require that fire losses be reduced to the mini­mum, and it is the Committee's belief that organized arson and professional arsonists can and should be eliminated and that the burning of property to defraud and for revenge by individuals in isolated cases should be greatly reduced. In the past few years great progress has been made in the elimination of organized arson gangs and it is believed that any similar organization attaining sufficient importance to attract attention can and should be successfully prosecuted.

Since the primary interest of this Committee is the success­ful prosecution of persons responsible for incendiary fires or frauds growing out of fires, it is its policy that any selfish interest involving the avoiding of the payment of unjust claims shall be subordinated to the interest of successful criminal prosecution. The Committee desires that the interests of criminal prosecution shall at all times be held superior to any question of monetary loss by the insurance companies. ,

Your work as a member of this corps of investigators must be governed by the following instructions. You should study them thoroughly and from time to time review them in order that your efforts and work may be for the best in­terests of those you are serving-the members of the National Board and the public.

INSTRUCTIONS 1. Since the attitude with which one approaches his work

is highly important, you should realize that in addition to earning your living in this work you are rendering a real public service. Your work is important, dignified and offers you the opportunity of contributing by your success not only to the lessening of property loss by fire but to the saving of innocent lives.

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2. With this attitude and the character of the work in mind, you will realize that investigations must be made when evidence can be had and that long hours and night work must be accepted cheerfully and as a necessary incident to the work to be done. The satisfaction that comes from work well done in a great cause will more than compensate for the disad­vantages of the occasional long hours and night work involved.

3. At all times conduct your investigations in a manner that will reflect credit on the organization with which you are connected. Courtesy, tact and fairness to all persons con­cerned, including suspects, are essential.

4. Always be prepared in a criminal case to go into court with clean hands; that is, do not take advantage of any one or do anything to which a defendant himself can take serious exception. Under no circumstances should you participate in any plan for the apprehension of arsonists, professional or otherwise, which involves any suggestion of "frame-up" or involves any inducement to crime.

Special agents are not case makers but truth seekers and it is just as important to develop facts from witnesses which do not tend to support a theory of guilt as those which do. The real facts are what is desired.

5. Cultivate the good will of the local authorities and the representatives of insurance companies with whom you come in contact. Cooperate fully with prosecuting attorneys, state police, fire marshals, police and fire departments. Remember that the authorities are entitled to all of the credit for any successful investigation.

6. Avoid, and if possible prevent, any publicity of a personal character. If mention of your work is made, in so far as you can, see to it that you are mentioned simply as a special agent of the National Board of Fire Underwriters. Any publicity, even then, should be subordinated to the pub­licity accorded the public officials who are handling the in­vestigation or the presentation of the case. Do not give any report of your activities to newspaper men.

7. Your personal conduct will be subjected to the closest scrutiny and criticism by those under investigation and their

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friends. Do nothing, therefore, that can be magnified or dis­torted so that it can be used to discredit your investigation.

8. Under no circumstances sign any complaint or make any charges against any person for criminal conduct in rela­tion to fires; any such action must be taken by the proper public authorities.

Never under any circumstances represent yourself as an official of any type, either local, state, or federal, and do nothing to permit those with whom you deal to obtain an erroneous idea as to your status. Agents work so closely with officials that persons under investigation or interested in investigations sometimes get the idea that the agent is himself an official. This is not desirable, accomplishes no good purpose and may be found embarrassing.

9. In so far as possible avoid saying anything concerning persons under investigation or suspicion which might be made the basis of a suit for slander or libel. It has occasionally happened that suit has been instituted by some one apparently involved in an arson case where claim has been made that statements damaging to the reputation and standing ot the person suing have been made by an agent of the National Hoard but no such suit, so far, has ever resulted in more than a nominal judgment. Care should be taken, however, to avoid making to, or in the presence of, any third person any expres­sion of opinion or statement of fact during the course of an investigation concerning the guilt or innocence or connection of an individual with a fire. /

10. Keep the office to which you are attached advised of your whereabouts at all times, so that you can be reached by mail or telegram without unnecessary delay.

11. Report promptly any and all requests for in vestiga­tions which come to you locally, so that the supervisor of your work may understand just what assignments are before you, and companies interested may be informed.

12. Report when you have more work on hand than you can handle in a reasonable time or when the work is unduly light, so that in the former instance you can be given assist­ance, and in the latter you may be available for additional assign men ts.

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13. When an investigation is drawn out or delayed for any reason and your report cannot be submitted promptly, submit a preliminary report outlining the important facts developed.

14. When an investigation is made in conjunction with authorities, either state or local, and any part of your report is made up of information obtained by such authorities with­out your participation, signify therein that such was the case.

15. Report to the office to which you are attached any special matter of importance that comes to your attention which you think will be of interest to our company members or public officials.

16. Keep a record of all cases in which you are interested and check up from time to time with the authorities having them in charge, so that action may be had promptly and cases speedily brought to a conclusion. All steps in each case should be reported promptly to the office to which you are attached.

17. Great care should be taken to preserve physical evidence of incendiarism. All articles of this type should be carefully labeled, a record made of them in some book kept for the pur­pose, and they should be retained in the custody of some law enforcement officer. Under no circumstances should special agents of the National Board retain custody of such evidence. Such records and labels are important, for, unless care of this sort is taken, it is difficult sometimes to establish the authen­ticity of the evidence or to show that it has not been tampered with and is what it purports to be. Fire chiefs, fire marshals, prosecuting attorneys and sheriffs usually have some system for the identification and preservation of evidence of this type.

18. A report should be submitted every day on which work is done even though no expense is incurred. It should be made out on the form of daily report and mailed promptly to the office to which you are attached.

Among matters which should appear in such reports under the head of "Remarks" are the probable duration of the in­vestigation, the probable result and when final report may be expected.

Agents who are not engaged in interviewing witnesses should state the character and extent of the work they are

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doing, as, for instance: "In conference with the district attor­ney in the morning, traveling in the afternoon." "In court all day."

In each instance items of expense reported must represent the exact amount expended for the particular purpose indi­cated. Any extraordinary expense, either in character or amount, should be explained fully in the report or an accom­panying letter, and in every instance where possible authori­zation for any unusual expense must be secured in advance. Expenses are not to be estimated, averaged, guessed at or charged under one head when, in fact, they represent an expense of a different character.

19. Report specially by letter the name, description, his~ tory and location of any professional firebug or pyromaniac who may come to your attention, stating what surveillance or other precautionary measures are being taken by the authorities or otherwise with respect to such person and mak­ing suggestions as to what further action you think can or should ~e tak.en .. The prevention of future fires is as important as the mvest1gation of fires which have actually occurred.

20. You are a part of the fire insurance business. Familiar­ize yourself with the business, with particular reference to adjustments. Read the material which will be sent you from time to time regarding the National Board of Fire Under­writers and fire insurance.

21. Any recommendation that the special agent thinks proper to make to an insurance company with reference to cancelation of a policy should be communicated through his superior officer to the National Board, and not directly to the insurance company involved, except in cases of real emergency.

22. While it is desired that special agents shall do such traveling within their particular territory as the exigencies of the work may require without special authority from their supervising office, agents should not undertake any other travel without first securing authority therefor.

Agents should neither come to their supervising offices nor go outside their regular territory without special authority therefor. Agents given special assignments outside their

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regular territory or away from their headquarters should not return to their usual territory or headquarters until author­ized to do so.

23. Each special agent operating under the New York office will be expected to prepare and submit his own expense account upon the form furnished by the office.

It is desired that each account shall be mailed on the night of the 23rd of each month and include expenses for that day. It is necessary that the account shall reach this office not later than the 25th of each month except in February when accounts should be mailed two days earlier.

The form is self-explanatory, except that in the first column the heading "R. R. Fares" should be changed to "Automobile" or "Airplane" if the agent, in fact, used an automobile or plane instead of a railroad. This heading, of course, can be changed as the items may require.

Under the column headed "Miscellaneous" separate entries should be made of stenographic expenses, extra meals and incidental expenses, each item being named. Abbreviations may be used as: Sten., Ex. M., lnci., etc.

It is suggested that each day when you make out your daily report, you enter the day's items on the account form so that on the 23rd of the month all you have to do is to add one day's expenses and add the total column.

24. In order that the office may be informed promptly and accurately as to the status of your work, you are instructed to report the status of every investigation in which you are engaged at least once in three weeks.

In many cases final reports cannot be made in this limited time, but it involves very little work to advise the status of each matter in which you are engaged at least once in each three weeks' period.

Forms of inquiry will be sent to you when no report has been received within the three weeks' period, or after such time as a report, from information previously furnished, should have been expected.

A record is kept of the number of inquiries made of each agent as an indication of his efficiency.

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COOPERATION OF FIREMEN AND LOCAL POLICE OFFICERS

Arson is a peculiar crime in that there is usually no com­plaining witness by whom the corpus delicti may be estab­lished and it is also peculiar in that it almost always is the result of planning over a period of time and is rarely com­mitted without considerable preparation. It is therefore neces­sary to establish the fact that a fire is incendiary by circum­stantial and physical evidence in most cases. Arson investi­gators may make this part of their work easier by procuring the active help of firemen.

Chiefs of fire departments should be encouraged to select one man in each unit whose definite job shall be to look for and to preserve arson evidence. This man's duties should begin as soon as the alarm comes in. He should note the source of the alarm and, if possible, the person responsible for it, and on the way to the fire he should be on the lookout for such suspicious circumstances as persons or machines hurrying away from the fire, persons evincing unusual interest in the running of the apparatus or behaving peculiarly at or near the scene of the fire. He should note whether the fire originated on the inside or outside the building, look for foot­prints, tire tracks, ascertain whether the doors and windows are locked, if forced open, note by whom, as to each entrance

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and make a care£ ul record of these facts. The color and volume of the smoke should be noted, as well as odors, depth of charring, possibility of more than one place of origin and character of residue deposited on walls or elsewhere. Note should be made as to whether the usual articles of wearing apparel are on the premises, how the persons involved in the fire are dressed, whether silverware, wedding presents, family pictures and trophies of all kinds are in their accustomed places. Note any unusual arrangement of furniture; look care­fully for plants, trailers, electrical apparatus, finger prints. If fire is severe, ascertain whether the normal remains are to be found in the debris. Make notes of numbers appearing on refrigerators, radios, washing machines, sewing machines and

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similar traceable items. Examination of garage and adjacent buildings should be made, to determine whether they contain any articles which might ordinarily be expected to be found in the burned premises.

All physical evidence of incendiarism should be labeled, recorded and carefully preserved. Care should be taken that fingerprints are not destroyed by the handling of such articles as cans, jars, etc. Frequently pictures of fire traps or other con­ditions, such as absence of stock of merchandise or absence of clothing in closets and bureau drawers, should be taken. Wherever photographs are taken, the pictures should be made before anything is moved. Usually analysis should be made of any material of an inflammable character, so that definite, clear-cut evidence may be given as to the nature of the accel­erant found.

It frequently becomes important to have an analysis made to show that material claimed to have been in the fire was not pres·ent. Occasionally claim will be made falsely that articles such as rfurs, diamonds, shoes or those containing metal were involved. An analysis may prove conclusively that they could not have been present.

Firemen detailed as above suggested should be encouraged to inquire as to where the insurance policies are, when they were procured and how much insurance is carried. They should also be on the lookout for evidence of financial con­dition of the assured. Questions of debt, overdue bills, dunning letters, unpaid taxes or threatened foreclosures should also be inquired into. Inquiries should also be made concerning recent visitors to the premises and recent visits of the occupants to other places, and concerning any unusual activities observed around the premises. Whether the occupants have any ene­mies should be ascertained. If it appears probable that the fire was incendiary, guards should be kept on the premises until the police, state fire marshal, prosecuting attorney or other official charged with the duty of carrying on the investigation and prosecution can take charge.

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' Firemen should be on the lookout for the same faces at fires, having in mind the possibility of pyromaniacs or profes­sional fire-setters. Firemen should also be on the lookout for similarity in origin and time with other fires.

The police assigned to arson cases should be encouraged to see what the firemen have done, whether all foregoing and similar matters have been covered, should inaugurate imme­diate investigation to cover any matters on the scene of the fire not satisfactorily disposed of by the firemen, to ascertain the previous fire record of the occupants and their near rela­tives, should canvass gasoline stations, sellers of scrap cellu­loid, and other sellers of any inflammable material found on the premises, should question witnesses separately and pri­vately, and suspects finally in the same manner, should exam­ine telephone records for toll calls, learn the history of the ownership of the premises, and the movements of all inter­ested parties for some time previous to the fire; if confessions are obtained they should be confirmed as far as possible, usu­ally by having the confession repeated before independent persons and, if practicable, the activities of the person making the confession reenacted. If the witnesses from whom evi­dence is had are accomplices (see page 31), it is essential in many jurisdictions to have corroboration by some outside evidence. The police officials should be encouraged to bring the prosecuting attorney into the investigation as soon as pos­sible, for he is the official on whom responsibility for prosecu­tion must eventually rest and his guidance and early interest are very important. Where investigations are protracted or the operations professional in character, the use of modern recording instruments, moving pictures, long distance cam­eras and similar modern aids in investigation shou!d be en­couraged.

Naturally, both firemen and policemen should be encour­aged to obtain the aid of National Board agents whenever such aid is likely to be beneficial to the development of the full facts and their consideration by the proper authorities.

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COOPERATION WITH ADJUSTERS The work of a special agent of the National Board should

supplement that of the adjuster for the companies and it is necessary that they work harmoniously together.

In investigations, the special agent should confer fre­quently with the adjuster and report to him, verbally, progress that is made.

Everything touching the validity of the insurance contract, such as an increase of hazard, e. g., the existence of a still on the premises, or any violation of the policy provisions, should be reported immediately to the adjuster.

Listed below are some of the things the adjuster should know, and they are incorporated in this handbook merely as a matter of information as to what data may be of service to the adjuster. The special agent is not an adjuster and must not assume any of the functions of the adjuster whatever.

Mr. Prentiss B. Reed, author of "The Adjustment of Fire Losses," has made the following outline:

The adjuster must: 1. Deal with the person, association, or corporation named

as insured, or with the legal representatives of the in­sured, and determine the nature and extent of the in­sured's interest in the property.

2. Determine the actual cash value of the property at the time of loss, and the amount of loss or damage sus­tained.

(a) Not to exceed the amount it would cost to repair or replace with material of like kind and quality within a reasonable time after los·s and damage.

(b) To be ascertained without allowance for any in­creased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair.

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(c) To be ascertained without compensation for loss resulting from interruption of business or manu­facture.

3. Determine whether the loss occurred after the com­mencement and before the expiration of the policy.

4. Determine whether the loss or damage was the direct result of fire or lightning, or of removal from premises endangered by the perils insured against.

5. Ascertain whether the property was located and con­tained as described in the policy, or had been necessarily removed to some proper place or places for preserva­tion from perils insured against within 5 days prior to loss.

6. Ascertain whether the property lost or damaged is that described in the policy.

7. Ascertain whether the insured has concealed or mis­represented any material fact or circumstance concern­ing the insurance or the subject thereof, or has been guilty of fraud or false swearing, either before or after the loss.

8. Exclude from the claim uninsurable property, or ex­cepted property that is not specifically named in the policy.

9. Ascertain whether the loss was caused by:

(a) Enemy attack by armed forces, including action taken by military, naval or air forces in resisting an actual or an immediately impending enemy attack;

(b) Invasion; (c) Insurrection; ( d) Rebellion;

( e) Revolution; (f) Civil War; (g) Usurped Power;

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(h) Order of any civil authority except acts of destruc­tion at the time and for the purpose of preventing the spread of fire, provided that fire did not origi­nate from the perils listed above as excluded;

(i) Neglect of the insured to use all reasonable means to save and preserve the property at and after a loss or when the property is endangered by fire in neighboring premises;

(j) Theft.

10. Ascertain whether there is other insurance covering the property.

11. Ascertain whether, unless otherwise provided by writ­ten agreement in the policy, the loss occurred while:

(a) The hazard was increased by any means within the control or knowledge of the insured;

(b) While the described building, whether intended for occupancy by owner or tenant, was vacant or un­occupied beyond a period of 60 consecutive days.

12. If loss occurred as a result of explosion or riot, ascer­tain whether fire ensued, and also the amount of loss by fire only.

13. Fix the extent of the application of the insurance and the contribution to be made by the company in case of loss.

14. Investigate any dispute over the cancellation of the policy.

15. Consider the interest of any mortgagee named as payee in the policy, and the action which should be taken by the company if the policy is void as to the insured, but valid as to the mortgagee.

16. Enforce such requirements as may be necessary to bring about a proper adjustment, or to prove that no liability exists.

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17. Exercise the options to take articles of personal prop­erty. at their agreed or appraised value, or to repair, rebmld, ?r replace damaged or destroyed property, if by so domg the company's loss will be reduced.

18. Establish any right of recovery from third parties for the loss.

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THE LAW OF ARSON '1 The only treatise on the law of arson dealing exclusively with this subject is the book by Arthur F. Curtis of the New York Bar entitled "The Law of Arson," which deals with the subject in a comprehensive fashion and makes a serious effort to refer to all adjudicated data on the subject. It is a very useful book, but many points of law are better covered in other works dealing more generally with criminal law. On such points as the corroboration of the testimony of accom­plices, establishing the corpus delicti, former jeopardy, etc., reference may be had to "Corpus Juris," and other standard works. Some discussion of some of the more important prin­ciples involved will be found in the following pages and atten­tion is invited to the Model Arson Law found on pages 43-47 hereof, but it is obviously impracticable to give in a pamphlet of this type a comprehensive statement of the law regarding arson and little benefit would be derived by the investigator if such were done. Wherever troublesome questions of the admissibility or sufficiency of evidence arise, recourse may be had to "Corpus Juris,'' Curtis on Arson, or one of many excel­lent text books on criminal law. The National Board will be glad to supply authorities and otherwise aid in attempting to arrive at the correct solution under any given set of circum­stances if requested to do so. A file of important and new decisions is maintained for this purpose in the New York office.

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INVESTIGATING INCENDIARY FffiES To develop a case of arson and justify a hope of conviction,

there are four things that should be established in order to prove the guilt of the accused beyond a reasonable doubt.

1. THE FIRE. It is necessary to introduce proof that the fire actually occurred at a specific time and within the juris­diction of the court. In larger cities and towns where there is a paid fire department, the hour of the fire is recorded. In smaller towns and villages, the approximate time can usually be shown either by some member of the fire department or by an interested neighbor. It is always important to ascertain who discovered the fire and to interrogate him carefully as to the appearance of the building, the extent of the fire, its location and other related facts.

It is important to describe the building in which the fire occurred, to give the name of the occupant, if any, and also of the owner, as it may be necessary for the prosecutor to have this information to prepare an information or indictment properly.

The mere scorching, smoking or discoloration of a build­ing, without fire communicated thereto, is not sufficient. There must be actual burning or ignition of some part of the build­ing to constitute the offense. (See however, pages 46-47 con­cerning attempts and conspiracies to burn.) However, to render one guilty of arson, the fire need not have been appljed by the accused with his own hand, nor need he have been present; if he procured, aided or abetted the commission of the crime, it is sufficient.

2. ORIGIN-INCENDIARY. Evidence of some sort must be introduced to establish the fact that the fire was of incen­diary origin. lt is a rule of law in regard to arson that every fire is presumed to be of accidental origin. This presumption has to be overcome before the State can make an arson case. Therefore, a prime fact to be established, which must be proved by competent witnesses, is that the building was burned by criminal design, and by a person criminally re­sponsible. In other words, the State must be able to prove the corpus delicti, or the body of the crime.

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It is not necessary, however, to prove the incendiary origin by direct and positive evidence. It may be shown satisfac­torily by circumstantial evidence.

"The circumstances of a fire may be so suspicious as to indicate the act of an incendiary. It is quite possible to have a building burned under such sus­picious circumstances as to exclude the notion of the fire being the result of accident or natural causes .... The building may be burned under such suspicious circumstances as to indicate the act of an incendiary, and thus a corpus delicti established and the door opened for the defendant's admissions and confes­sions, but there must be some evidence of some kind, tending to show the incendiary character of the fire aside from these confessions and admissions."

People vs. Simonsen 107 Calif. 347; 40 Pac. 440

It makes no difference how strong the evidence of motive may be against a suspect, or that he had the means and opportunity to set the fire. He, first of all, must be definitely connected with the incendiary fire. Even though a confession may be obtained, it will probably be necessary to introduce evidence of the corpus delicti before the confession of the accused can be introduced.

"Evidence of the corpus delicti need not be direct and positive, but may be circumstantial in its char­acter."

Carlton vs. People 150 Ill. 186

"All the evidence of corpus delicti may be proved by presumptive or circumstantial evidence where direct evidence is not to be had."

(St. Clair vs. U. S., 154 U. S. 136; Commonwealth vs. Williams, 171 Mass. 461 ; State vs. Dickson, 78 Mo. 438; Campbell vs. State, 159 Ill. 9; Common­wealth vs. Webster, 5 Cush. 295; Lancaster vs. State, 91 Tenn. 267.)

It seems to be conclusively settled: (1) That an extra-judicial confession is not sufficient in

and of itself to sustain a conviction of a crime. (2) That some corroborating circumstances tending to

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prove criminal agency should be offered by the State before such extra-judicial confession is competent.

"If the facts extrinsically proved by the state cor­roborate the confession, then full, direct, and positive evidence of the corpus delicti is not indispensable to admit the confession in evidence; and if such extrinsic corroborative facts, when considered with the confes­sion, persuade the jury beyond a reasonable doubt of the prisoner's guilt as charged, such evidence will support a verdict of guilty. Blackburn vs. State, 23 Ohio St. 146 approved and followed."

(State of Ohio vs. Knapp, 70 Ohio St. 380, 71 N. E. 705, 1 Ann. Cas. 819, decided in 1904.) In Smith vs. The State, 64 Ga. 605, it is said:

':Arson seldom can be established by positive testimony. The character of the offense makes it necessarily dependent for conviction upon confessions and corroborating circumstances. The force to be given the corroboration must be left to an intelligent and upright jury."

A defendant in a criminal case can not be convicted on his extra-judicial confession unless it is corroborated in a material and substantial manner by evidence aliunde as to the corpus delicti. Such evidence, however, need not be such as alone to establish that fact beyond a reasonable doubt, but it is sufficient if, when considered in connection with the con­fession, it satisfies the jury beyond a reasonable doubt that the offense was committed, and that the defendant com­mitted it.

Flower vs. U. S. 116 F. R. 241

Other cases to the same effect might be cited; but these already referred to, we think, are sufficient to show the state of the law in the United States, and it will be seen that they do not sustain the doctrine that the corpus delicti must be fully proved by evidence independent of the confession. It is doubtful whether Mr. Greenleaf intended to lay down any such rule, and, if he did, the courts seem not prepared to adopt it, as it does not appear to have the sanction of any decided case either in England or the United States. All that can be re­quired is that there should be corroborative evidence tending

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to prove the facts embraced in the confession; and where such evidence is introduced, it belongs to the jury, under the instructions of the court, to determine upon its sufficiency.

U. S. vs. Williams 28 Fed. Cas. 636, 645

The Supreme Court of Ohio succinctly stated the rule that "while extra-judicial confessions alone are not suffi­cient to prove the body of the crime, that they may be taken and used for that purpose in co~nec­tion with the other evidence in the cause. This we understand to be the law."

Blackburn vs. The State of Ohio 23 Ohio St. 164

Conceding the law to be that the State cannot convict, or even that the State cannot receive evidence of admissions made by the prisoner, tending to show guilt on his part, unless it be first shown that the thing charged against him as a crime has actually taken place, still, when it is shown that the building charged to have been burned by the prisoner at a given time, is shown to have been burned at that time, it is certainly admissible to show that the prisoner admitted that he did the burning.

Berman vs. The State, 16 Ohio Circuit (N. S.) at 108-9 affirmed by Supreme Court of Ohio without opinion, 81 Ohio St. 508.

In one case of record, the court held: "Where evidence shows that certain buildings

have been burned, and there were marks of a carriage having been driven to such premises. and footprints leading from the place where the carnage stopped to the house there was sufficient proof of the corpus delicti to

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justify the admission of confession of de­fendant."

People vs. Jones 123 Calif. 35

In an Illinois case, the court held: "Proof that a school house in a country district

was destroyed by fire about two o'clock in the morn­ing, and that a man's footprints, made at a time when the grass and stubble were wet with dew, were found

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leading to and from the building, is sufficient proof of the corpus delicti to justify admitting the testi­mony of witnesses that the person accused confessed to them."

People vs. Hannibal 259 Ill. 512

It frequently happens that the incendiary origin of the fire can be shown by direct evidence such as the saturation of the premises with kerosene, gasoline or other inflammable fluid. If any liquid believed to be inflammable is found in such condition that a small portion of it may be poured out and actually burned by a public officer or the agent in the presence of some one, it is usually desirable, as, thereby, the inflam­mable character is immediately established. (A list of certain inflammable liquids with information concerning them is appended hereto, pages 53-54). It may be established by the introduction of proof that there were two or three fires, each separate and distinct, having no connection with each other. A careful examination of the premises should be made in order to determine whether everything is in its natural order. Look for the unusual or the unnatural; see whether articles of furniture were arranged so as to retard the work of firemen ; or whether there is evidence that a considerable part of the furniture, fixtures or stock was removed from the building previous to the fire.

In a case in which the evidence established the corpus delicti, the court said:

"That a stranger with no authorized access to the building could have got in the five-gallon jars, half­full of gasoline and distributed them without the knowledge of the defendant is extremely unlikely. His demeanor at the time of his arrest, and his con­tradictory stories about the keys, were all circum­stances which the jury could weigh. He was the only one who might have had the opportunity, and except­ing his absent partner, the only one who might have had the motive. These important facts are incon­sistent with his innocence and quite consistent with his guilt."

State vs. Dworkin 307 Mo. 487; 271 SW. 477

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In attempting to prove the origin of a fire is incendiary, it is prejudicial error to permit witnesses to state the con­clusions they may have reached from things they have seen and facts they have related. Witnesses may only relate facts, and the jury must be left to draw its own conclusions. As, for example, a member of the fire department will not be per­mitted to testify that he noticed a black smoke at the fire and drew the conclusion that the building had been saturated with oil. Nor can he testify that a building burned exceedingly fast and from his experience as a fireman he is of the opinion that some volatile oil had been used in the fire.

He can testify, however, that he noticed a dense black smoke exactly similar to the smoke from burning oil that he had observed in other fires. He can testify that he noticed a peculiar odor, identical with the odor observed in a garage fire. He can testify that the building burned much more rap­idly than similar buildings ordinarily burn.

"Common observers having special opportunity for observation may testify to their opinion as con­clusions of fact, although they are not experts if the subject matter to which the testimony relates cannot be reproduced or described to the jury as it appeared to the witness at the time, and their opinions are such as men in general are capable of forming with reason­able correctness on the facts observed."

Keccis vs. State, N. J. L-44 State vs. Laster, N. J. L-586 also, 98 N. J. 621 or 121 Atlantic 590

Expert Testimony as to Origin of Fire. The practice varies in different states as to the admissibility of expert opinion as to the origin of a fire. The leading case in New Yark is that of People vs. Grutz, 212 New York, 72, which was a four to three decision. In this case a deputy fire marshal was asked his opinion of the origin of the fire and, in answer, enumerated a number of facts which it was quite proper for him to state, which facts, he stated, indicated to his mind that the fire was set. The court held that the nature of the fire marshal's answer did away with much of the harm­ful effect of the question. The court stated, however, that the

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case was not one for expert opinion. The physical facts which were the subject of the investigation were so simple that they could be readily understood, when properly described, and it was then up to the jury to draw the appropriate conclusion . While this decision has been accepted by many as prohibiting expert testimony as to the origin of fires, it is not believed that it really does so, but that the principles are the same in arson cases as in any other criminal cases so that, if the facts in any given case are complicated or of a nature not readily under­stood by laymen, expert testimony would be admissible.

In the recent case of Kansas vs. Gore (152 Kans. 551; 106 Pac. [2nd] 704) the opinion rendered by the Supreme Court of Kansas on Nov. 9, 1940, contains the following:

. It is .well to ~r in mind a·t the outset that the admission of opinion eVJdence m prosecutions for arson is governed by the same rules as are applicable in prosecutions for other crimes. (2 R.C.L. 518; 4 Am. Jur. [Arson] No. 52.) The gen~ral rule is, if a witness has acquired peculiar kn'!wledge or skill, by e:ic;pen~nce, observation or practice on a subject with w.h1ch .t~e mass. of mankmd 1s not supposed to be acquainted, he may give his opinion on 1t. (State v. Nordmark, 84 Kan. 628, 631, 114 Pac. 1068; State '!'· Parsons, 1.40 Kan. 157, 160, 33 P. 2d 1096.) It is true there is au!h~mty for ~he VJew that generally, subject, however, to exceptions, the op1mon of a witness that the fire was of incendiary origin is not admissible. (2 Wharton's Criminal Evidence, 2d ed., No. 956.) Appellant cites num­erous decisions supporting that view.

The substance of appellee'~ position and contention was not only that the fire had been set but that 1t had been set shortly before it was discov­ered. It seems to us these contentions cannot well be separated entirely in the instant case, in determining the question of the admissibility of th~ expert's '!Pinion. The evidence disclosed appellant had gone to the shop at approximately eleven p. m., on the evening of April 28th. He was away from his lady companion between an hour and a quarter or an hour .and a half. The alarm concerning this particular fire was given in response to a call at 12 :58 a~ m., April 29th. Appe)lant was. seen in a cafe just across th~ street from his shop ten c;ir fifteen mmutes prior to the alarm concerning this fire. He returned to his car ten or fifteen minutes after that alarm. ~t was the contention of appellee there was no outward evidence of fire 1~ the s:hop at 12 :34 a. m., that the fire had been in progress on!,- a short time when the alarm was given, and that it was of incendiary origm.

When the expert witness, Holder, arrived, the pile in the middle of the floor had already settled, to some extent, by reason of the fact the fabrics at the bottom of the pile had been burned. He stated the fire burned from the bottom t:P· There was no objection to that opinion. The record dis­closes .the Witness examined the burned fabrics, their location in the pile t~e umque and unusu.al arrangement of fast-bur?ing and slo~-burning fat>'. r!cs, and other materials. He named and described the fabrics which con­sisted of .fast-burni.ng and. those which consisted of slow-burning contents. He exammed the hght weight dresses on the hangers which in his opinion were scorched from above by the heat as it descended fr~ the top of th~ balcony. He, also, named the clothing which was in part slow-burning and in part, fast-burning. The ability to analyze the texture of fabric~ and to state the quick or slow effect of heat upon them was definitely a

23

maf.ter of professional knowledge. The unique manner in which these vari­ous fabrics were arranged in the pile, in all probability, suggested far more to this experienced fireman, whose business it was to ·search out the cause of fires, than it did to the ordinary layman. Was his knowledge, his infer­ence or opinion, based upon facts in evidence, and his reasons for his opinion as to the cause of .the fire, to be withheld from the seekers of the truth, the triers of the fact? Could ·the reasons for his opinion, in addition to the mere explanation of what he found, afford assistance to the jury in deter­mining the issue before ·them, and if so were they competent? In the rather early case of Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356, this court referred to a much earlier case and said:

"In Erb v. Popritz, 59 Kan. 264, 52 Pac. 871, certain witnesses without railroad experience had been permitted to give their opinion as to the cause of a certain derailment, and this was held error on the ground, not only that the witnesses bad no expert knowledge, but that the appearance of the wreck could have been easily and adequately described to the jurors so that they could have formed an opinion as readily as the witnesses. Had the structure and situation been such that the witnesses by their railroad experience were able to afford the jury any assistance in addition to that furnished by an explanation of the facts and the photograph of the bridge it would have been proper to receive their opinions.'' (p. 119.) It may be conceded the foregoing were negligence and not arson cases.

It is also true that there is not entire unanimity of opinion in the various jurisdictions on the subject of admissibility of opinion evidence in arson cases. In frankness it may, also, be said that in our own earlier decisions the strict rule against the admissibility of opinion evidence was more rigor­ously applied than in our more recent decisions. It will serve no useful purpose to again review the numerous aspects of the question. The com­plexity of the subject is conceded. However, in the recent case of Malone v. New York Life Ins. Co., 148 Kan. 555, 83 P. 2d 639, it was stoutly con­tended a doctor should not be permhted to give his opinion as to the distance a gun was located from the head of the insured when it was discharged. Numerous authorities were there reviewed, the conflict in authorities was recognized, and it was said :

"Distinction between facts and conclusions was involved in Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019, and it was there said:

'The modern notion of the admissibility of evidence is that it is more impor0tant to get the truth than to quibble over impractical dis­tinctions between facts and conclusions.' (Sy!. 2.)" In Tovey v. Geiser, 150 Kan. 149, 92 P. 2d 3, the question pertaining

to the admissibility of the opinion of experts upon the subject of which of two persons died first in a common disaster, was presented. The subject again received e:ichaustive treatment, and the court concluded:

"While the ordinary rule of evidence is that witnesses should not be permitted to testify to the ultimate facts which it is the province of the jury itself to decide, that rule is not strictly applied when the opin­ions of experts are offered to aid the jury in reaching its decision. ( Sillix v. Armour & Co., 99 Kan. 103, 109, 160 Pac. 1021 ; Malone v. New York Life Ins. Co., 148 Kan. 555, 557, 83 P. 2d 639.)" (Empha­sis supplied) (pp. 156, 157.) In Wigmore on Evidence, 2d ed. Vol. 4, the principle is stated thus:

"But the only true criterion is: On this subject can a jury from this person receive appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular wit­ness with reference to that subject, and is not fixed or limited to any

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class of persons acting professionally." (p. 119) (See, also, Vol. 3, Ghamberlayne's Modern Law of Evidence, 3228, No. 2375; 22 C. J., 647, No. 740.)

Appellant urges the facts were so simple that the opinion or inference of an e~rt was unnecessary and that the jury should have .been permitted to dr.aw its own c?nclusion on tl~e question .of incendiary origin. It was perrn1t!e?- to reach 1t~ own conclus1oi:s. The JUry was not obliged to accept the opinion of the witness. It was mstructed it had to reach its own con­clusion. Was the jury prejudiced by the opinion of the witness? If it is true, that from a mere statement or description of the conditions found by the expert, it was clear the fire had been set then it is a bit difficult to see just how the opinion of the witness, if incompetent, resulted in prejudicing the substantial rights of the appellant. ,

While we have concluded the opinion of the witness was admissible we .may also say fille judgment cannot be disturbed for another reason. Whtie we have not attempted to narrate all the evidence, the record with­out the opinion evidence, strongly indicated the fire was of incendiary 'origin. It was ample to sustain the verdict. Under such circumstances, we would not be justified in qisturbing the verdict. (Sawyer v. State, 100 Fla. 1603, 16!7; Tovey v. Geiser, supra.) In 5 Encyclopedia of Evidence, 649, it is said:

"Error in .the admission. of expert testimony may not be ground for reversal where sooh testimony is merely cumulative and there is an abundance of other evidence which is competent and ~hich sustains the opinion of the witness. . . "

. The foregoing rule was stated and approved by this court in Tovey v. Geiser, supra, page 159.

The Supreme Court of the State of Minnesota, in an opinion filed January 2, 1943, in the case of the State v. Lytle (214 Minn. 171; 7 N. W. [2nd] 305), said:

"The evidence of the experienced firemen did not go further than to state that in thdr opinion some inflammable substance other than that of which the building was constructed or what it contained contributed to. the manner and speed with which the fire burned and spread. These ?Jlt:iesses testified from what they observed when they reached the fire m its early stages. They went no further than to say that it a~ared to burn and spread like a 'boosted' fire. They did not testify that in their . opinion it was an incendiary fire, as cited by defendant. This 9uestion do~s not seem to have been squarely presenied to this court m a1!y previous case. The supreme court of Oregon in First Nat. Bank v. Fire Assn., 33 Or. 172, 191, 53 P. 8, 50 P. 568, and State v. Director, 113 Or. 74, 87, 227 P. 298, 231 P. 191, has held that similar evidence is admissible from experienced firemen who observed the fire. It said that they might testify whether in their opinion the fire was burning naturally upon the known substance it had to feed upon. We think there was no error in admitting this evidence."

In other states expert testimony has been received as to the incendiary character of the fire, one of the agents of the National Board having qualified as an expert and testified. It is believed that the correct rule is as stated above, but it is a good plan to avoid the use of expert or opinion testimony wherever practicable.

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In case fire occurs and no physical evidence of origin can be established, if a large quantity of the furniture was re­moved previous to the fire, this evidence can be introduced to overcome the presumption of accident. Such suspicious circumstances can always be presented to strengthen proof of the corpus delicti.

It is highly important in all cases where evidences of the incendiary origin of the fire are found that the premises be photographed, in order that the jury may be able to see and recognize the exact conditions. If the investigation indicates that articles of stock, furniture or fixtures were removed from the building, it is highly important that these be located and identified if possible.

It is frequently advisable to eliminate, in so far as possible, any accidental cause which might be put forward by the accused as the probable cause of the fire. Furthermore, the heating and electrical equipments should be examined in order to prove that the fire was not due to any defect in those systems. If you are to prove by circumstantial evidence that the origin of a fire is incendiary, all accidental causes should be eliminated in so far as possible.

Fingerprints. It is of extreme importance that the in­vestigator exercise the greatest care in examining articles found near the fire, such as bottles, candles and similar tools of the arsonist's trade which show evidence of having been handled by the incendiary, also near means of access, such as windows and doors. All such articles should be carefully examined by an expert for evidence of fingerprints. The prints of no two persons are exactly alike, and from them such an expert can make positive identification. It is a form of evidence where demonstration can be made in the presence of a jury, and an expert is enabled to testify positively. In this respect it differs from the testimony of a handwriting expert, who always gives opinion evidence.

Intent. On account of the great danger to human life resulting from the burning of an inhabited dwelling, it is viewed as a particularly grave offense. To constitute arson there must be an intent to burn the building and some actual

26

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charring of the wood or fiber, and, in addition, the burning must be willful and malicious.

It has also been held that, if a person sets fire to or burns a building while engaged in the commission of some felony, such as burglary, it is arson, even though there be no specific intent in the mind of the accused to set fire to and burn the building. (2 Bishops Criminal Law, Par. 14, 15-People vs. Fanshawe 137 N. Y. 68, 32 N.E. 1102) The causeless setting fire to a building by a person responsible in mind is arson, because the necessary intention is presumed from the act; the same act, committed with the intention of perpetrating a crime, whether such be a felony or misdemeanor, must also be held to be arson, because the very recklessness of it supplies the willful intention.

3. MOTIVE. It is extremely important, although not abso­lutely necessary, to establish a positive motive on the part of the accused in the trial of a case of arson. The motive for this crime is usually revenge or a desire to defraud the insurer. Over-insurance is not always necessary to prompt an attempt at burning to defraud. Straitened financial cir­cumstances, a desire to change location or some other motive may be sufficient to prompt a man criminally inclined to attempt a quick "sale" of his property to some insurance company.

lt is important in all cases in which a desire to defraud the insurer is the motive that the value of the property destroyed be determined as accurately as possible. It is some­times advisable, when the destruction has been partial, to have an inventory taken by some person who can qualify before the court as an expert on values.

In case of arson, expert and opinion testimony as to values are of great aid in establishing motive, particularly when mer­cantile stocks that are grossly over-insured are concerned. The average adjuster is competent to qualify as an expert on values. When it is not advisable to use an adjuster's testimony, a local dealer experienced in buying and selling stocks of mer­chandise similar to the one at issue, and who has been accorded an opportunity to inventory and appraise this stock, can be qualified as an expert and testify accordin&ly.

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It is frequently important to have a physical inventory taken of the stock or fixtures, or both.

Insurance. Inquiries should be made concerning the in­surance covering the property. Any recent increase in insur­ance should be carefully noted, to see whether there was any increase in value to justify this additional insurance. Any conversation the accused may have had with insurance agents or others concerning the validity of his insurance is admissible, and can be used to show that the fire was anticipated.

Any conversation regarding the possibility of a fire on the part of the defendant previous to the fire is admissible, and may be used against him.

4. PROOF OF GUILT. If a man is directly accused of the crime of arson, it is necessary to show by facts or circum­stances, or both, that he could and actually did set the fire in question. If he procured another to set the fire, or if he aided or abetted the real incendiary, he is equally guilty and liable to prosecution. Once the corpus delicti is established in an arson case, every fact or circumstance tending to throw any light on the case is usually admissible as evidence against the accused. Much of what has been said under the heading No. 2 is applicable to the means and method of establishing guilt.

Confessions. It occasionally happens in the investigation of cases of arson that a confession is obtained. In the event that an admission of guilt or confession is secured, every effort should be made to develop all the corroborative evidence possible. If the confession is corroborated in its essential de­tails, it is prima facie evidence that it is the truth.

The burden of showing that a confession of guilt was ob-tained by improper inducement rests with the defendant.

Rufer vs. State, 25 Ohio 464, cited and followed. Lefever vs. State, SO Ohio 584 Opposed-Spears vs. State, 2 Ohio 583 See also Rice on Cv. Ev. 488 Pg.

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..

.,

..

Where a signed confession details the defendant's connec­tion with the crime charged and also contains an account of flight shortly following the crime and the actions of himself and one or more of his confederates, the entire confession is competent and relevant.

State vs. Doty 94 Ohio 258

How Competency of Confession is to be Determined. The competency of a confession is to be determined by the trial court upon the facts in evidence at the time it is offered, and in all cases inquiry should be made whether ihe defendant spoke through fear or in the expectation of immunity, and when he is under arrest it should also be asked whether he spoke to the magistrate, or to the officer in charge, or in their presence, because he felt that he was compelled to for any rea­son, and it is proper to allow a preliminary examination by the defendant's counsel to test the competency of a confession before it is received. After it is received, if a question of fact arises as to its voluntary character, the jury should be in­structed to disregard it wholly, unless they find that it was voluntarily made, without threat or menace by acts, words or situation, and without compulsion, real or apprehended, and without the promise, express or implied, that the de­fendant should not be prosecuted or that he should be pun­ished less severely.

People vs. White 176 N. Y. 331

Admissibility of Confessions. The question of whether a confession was improperly introduced or not is for the court on preliminary inquiry, and its decision is controlling, unless it appears by the record to be clearly against the evidence.

Rossczcvnilia vs. State 125 Wis. 414 Connors vs. State 95 Wis. 77

Confessions made by a prisoner while under arrest are admissible if not elicited by coercion, threats or artifice, and mere advice that it would be better to tell the truth, or words

29

of similar import, will not vitiate them. Rintz vs. State, 125 Wis. 403, on Page 412, the court says:

"If, after the admission of testimony, conflicting evidence renders it doubtful whether the confession was voluntary, that question may properly be sub­mitted to the jury."

It was held in State vs. Anderson, 133 Wis. 601, that a statement is voluntary unless made under the influence of a threat or menace which inspires dread or alarm or induced by artifice or a promise or inducement of some profit, benefit or amelioration of punishment.

The presumption is that confessions are voluntarily made. In the case of Campbell vs. Germania Fire Insurance Com­

pany, 163 Wis. 329, on page 339, where the nature of an alleged confession was such as to arouse a suspicion that it was not made freely and intelligently, and the circumstances under which it was made were consistent with that view, there was no prejudicial error in instructing ·the jury that the alleged admissions were not entitled to weight, unless the jury were satisfied that they were freely made and not under such compulsion, threats, intimidation, promise of immunity or persuasion, as to prevent him from being a free agent in the matter.

In Terasinski vs. State, 146 Wis. 508, on page 512, the court said:

"Obviously the mere fact that the confession was made during an examination by an officer, while the confessor was at somewhat of a disadvantage, in that he had no advisor or disinterested person at hand, assuming that the officer and his associates were prejudiced in the matter, DID NOT RENDER THE CONFESSION NECESSARILY INADMISSIBLE. The question here presented is whether under the cir­cumstances it was fair to believe the confession was made freely and voluntarily. If THERE WAS ROOM IN THE EVIDENCE FOR THE JURY TO COME TO THAT CONCLUSION, IT WAS PROPER TO ADMIT THE EVIDENCE. THAT IS ELEMENT ARY. True, if a confession is clearly induced by fear, favor, or the promise of reward, evidence of it is not admissible. It is not incompetent

30

I

'

) :)

merely because there is room for a reasonable con­clusion THAT IT WAS SO INDUCED. If there are reasonable conflicting inferences in that regard from all the circumstances, that being a judicial ques­tion, the evidence is competent, leaving it to the jury to give heed thereto or reject it in their deliberations according as they may find the proper inferences."

Ibid. 518-"All other evidence of undue influence going to show that the incriminating disclosures were not freely and voluntarily made was controverted so what the real facts were was a jury question."

Who Is An Accomplice? To constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted, either as a principal or as an accessory before the fact (People vs. Cohen, 223 New York). A person is not deemed to be an accomplice merely because he had knowledge of the intended commission of the crime unless ·he in some way aids or incites its commission (People vs. Doyle, 107 Misc. 268).

Corroboration of Accomplices. In many states the defend­ant may not be convicted wholly upon the testimony of accom­plices, but this is not so in other states, nor is it the law in the federal courts. Testimony of an accomplice must always be received with caution, and the court must so instruct the jury. In states where defendants may not be convicted upon the testimony of an accomplice, corroboration by such o):her evidence as tends to connect him with the crime is necessary and one accomplice may not corroborate another, so that the testimony of several accomplices is no more sufficient than that of a single one. There is an exception to this rule in the State of Georgia, where, if two or more accomplices testify, the corroboration may be sufficient. (Chance vs. State, 33 Ga. App., 137.)

There is a distinction between the corroboration of an accomplice and the corroboration of a confession, the nature of the corroborative evidence being different. In the case of the confession, there must be additional proof that the crime was committed. In the case of the testimony of an accom­plice, there must be other evidence tending to connect the

31

defendant with the commission of the crime. Thus, the testi­mony of an accomplice on the stand is sufficient to establish the corpus delicti, a1'though insufficient to convict the defend­ant without other independent evidence. (People vs. O'Neill, 48 Hun. 36, 5; N. Y. Cr. 302, affd. 109 N. Y. 251, 16 N. E. 68, 6 N. Y. Cr. 48. People vs. Dixon, 231 N. Y., 111.)

False Statements. The fact that the accused has made false statements is often important evidence, especially if made to persons investigating the fire or contradicting other statements made by him at other times, or suggesting a theory as to the cause of fire which he must have known to be false. False statements regarding the fact or amount of insurance are also frequently important. There are many decisions con­cerning admissibility of such testimony, a number of which are listed in Curtis on Arson, page 333.

Opportunity. Evidence of opportunity, of course, is admis­sible, as is evidence of lack of opportunity admissible, on behalf of the defense. Where exclusive opportunity can be shown-that is, where the premises are locked and the only known keys in the possession of the assured-the weight of the evidence, of course, is greatly increased. An interesting case involving this principle, but in reverse, is found in the case of Commonwealth vs. Alba, 271 Massachusetts 333, where the defendants had testified that they locked the premises but the firemen found the premises unlocked, giving rise quite properly to the infer­ence that the person who set the fire had gained access to the property with the keys of one or both of the defendants. (See also Notes 54 and SS, page 314, in Curtis' "The Law of Arson.")

Previous Fires. Evidence of previous fires is frequently competent, especially in support of the theory that the defend­ant had guilty knowledge and intent in the particular transac­tion in connection with which he is being tried. Evidence of this kind may also be admitted to show a plan, a scheme or a system. In a recent case the Supreme Court of Tennessee, in an opinion filed January 30, 1937 (Thompson vs. State, 171 Tenn. 156; 101 S. W. [2nd] 467), quoted with approval the following rule from Wharton's Criminal Evidence, Volume I, page 527:

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"Sec. 352. To show plan, scheme, or system. Evidence of other crimes may be admitted when it tends to estab­lish a common scheme or plan embracing the commission of a series of crimes so related to each other that proof of one tends to prove the other, and to show the defendant's guilt of the crime charged. Subsequent as well as prior collateral offenses can be put in evidence, and from such system, identity or intent can often be shown. The ques­tion is one of induction, and the larger the number of con­sistent facts, the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. A man may be honestly mistaken and have no fraudulent intent if a transaction stands alone, but the probabilities of an honest mistake diminish as the number of similar transactions, indicating a scheme or system, increases. * * * "

Weight of Circumstantial Evidence. There exists in the minds of many persons a strong prejudice against circum­stantial evidence and, as evidence in arson cases is very fre­quently entirely of this character, it is important that a true understanding of the weight and value of circumstantial evi­dence be had. A prominent writer has written the following on this subject:

"The chief error with regard to the delusiveness of circumstantial evidence lies in considering it as a mode of reasoning or proving doubtful points peculiar to a court of justice. Whereas i,t is nothing else than the common cour.se of settling all questions which can be settled by argument employed whether knowingly or unknowingly by all mankind. If men would stop to consider the fact that in the ordinary affairs of everyday life they are con­tinually forming judgment on circumstantial evidence alone, and acting upon these judgments in matters of the utmost concern to them, they would be less likely to decry this kind of evidence when acted upon in the administra­tion of justice." In a legal sense circumstantial evidence is not regarded as

inferior to direct evidence and in many instances reliance may be had on it more safely than on direct evidence, especially since .proof by circumstantial evidence usually requires the use of a large number of witnesses, each testifying to some small

33

link, so that a number of perjured witnesses would be neces­sary to cause an unjust conviction, whereas one perjured wit­ness giving direct testimony might accomplish such a wrongful act. Justice Walworth, in delivering a charge to a jury in New York, after setting forth the above reasons, said:

"For this reason, although from the imperfection and uncertainty which must ever exist in all human tribunals, I have no doubt that there have been cases in which innocent persons have been convicted on circumstantial proofs, yet from my knowledge of criminal jurisprudence, both from reading and observation, I have no hesitation in expressing the opinion that where there has been one unjust conviction upo.n circumstantial evidence alone, there have been three mnocent persons condemned upon the positive testimony of perjured witnesses."

The fact, therefore, that evidence is wholly circumstantial should not deter the investigator, for the facts and circum­stances shown may well be so convincing as to demonstrate to a certainty the guilt of a defendant.

Probably as clear and condensed a discussion as may be found anywhere of what evidence is admissible in an arson case appears in Volume 5 of the well-known reference work "Corpus Juris." Therein, on page 572 and succeeding pages: appears the following:

. Admissible Arson Evidence. "Any circumstances tend­mg to rebut the presumption that the burning was acci­dental may be given in evidence as proof of the corpus delicti (the body of the crime), and when the fact of the burning is clearly and satisfactorily proved, and the cir­cumstances are such to exclude accident or natural causes as to the origin of the fire, a foundation is thus laid for the introduction of any legal and sufficient evidence direct or cirr.umstantial, that the act was committed by the accused ~nd that it was ~one 'Yith criminal intent. Accordingly, it 1s proper to receive ev1d_ence tending to fix the description, character and surroundmgs of the building at the time of the fire, and its possession, occupancy or control. For this puri;~os~, evidence of the contents of the building is adm1ss1ble, except when the character of the building is not controverted.

"Not only the burning of tl1e building in question, ·but also the extent of the conflagration and the burning of

34

other buildings by the same fire, may be shown in evi­dence; and while evidence that other fires occurred in the vicinity at or about the same time as the burning of the building alleged in the indictment, or that the same or other property of the accused or prosecutor was on fire on previous or subsequent occasions, is not generally admissible in the absence of anything directly to show defendant's connection with the charge for which he is on trial, yet if it directly tends to connect defendant with the burning alleged in the indictment, or to establish intent, or to show the incendiary origin of the fire in question, it may be received. So evidence of the burning of other property belonging to the same owner at almost the same time is admissible to show that the two fires were parts of a scheme concocted and carried out by the assured. The fact that defendant, a few months before the burning charged, requested another to burn the house is admissible in evidence.

"Evidence of incriminating circumstances, tending to show accused's motives, malice or intent is admissible. Thus on the question of motive, evidence is admissible which tends to prove that assured set the fire for reward, or gain, to secure employment as watchman, to destroy evidence of title, to destroy the record of a pending indict­ment against him, or to conceal a murder of another. The acts and declarations of the accused showing the intention to burn the property in order to collect the insurance money are admissible against him .

"Threats made by accused against the person or prop­erty. of the prosecutor, regardless of whether it is th,e identical property burned or adjacent property may be shown, not only for the purpose of proving malice, but also to connect the accused with the commission of the offense; and the competency of testimony of threats is not affected by a considerable lapse of time intervening between their making and the burning of the building, or the fact that the ownership changed in the interim, or that the threats were general, vague, or indirect. How­ever, evidence of a threat made after the fire is not admissible.

"Ill feeling or unfriendly relations between accused and owner may be shown.

"It is proper to admit evidence of incriminating cir­cumstances tending to show that the fire was of incendi­ary origin, and that the accused was connected therewith,

35

such as evidence of defendant's act, conduct and where­abouts, at or near the time of the fire, and his acts or preparation or his possession of goods proved to have been in the building immediately before the burning or that he removed insured goods from the building im­mediately before it was burned." In connection with the question of control of the premises

(pp. 21 and 32) it is important to show whether all doors and windows were locked, whether any evidence of breaking and entering, the whereabouts of all keys, etc., for, if motive and incendiary character of the fire are established and exclusive opportunity shown as to the assured, he may, at least in some jurisdictions, be convicted either as a principal or as an acces­sory before the fact to an unknown principal.

MAIL AND OTHER FRAUDS In many cases where it is difficult to prove either the

fact that the fire was incendiary in character or that the assured was responsible for it, it is possible to establish an attempt to defraud on the part of the assured, and recourse should be had to such state statutes as apply in the ordinary case. If, however, for some reason, as occasionally happens, prosecution cannot be had in the state courts, if the proofs of claim were sent in by the assured through the mails or he used or caused to be used in some other way the mails in furtherance of his scheme to defraud, prosecution may prop­erly be instituted in the federal court, and it therefore is essential that in all cases of fraud, inquiry be made to de­termine to what extent, if any, the mails were used.

In all such cases, it is important to obtain and preserve envelopes which contained letters, proofs of loss or other material sent through the mail.

Many States have statutes dealing with attempted frauds under policies of insurance with which investigators working in them should be familiar. As an example, we quote below a Massachusetts statute, which is Section 111-A of Chapter 266 of the General Laws:

"Whoever, in connection with or in support of any claim under any policy of fire insurance issued by any company, as defined in section one of chapter one hundred

36

and seventy-five, and with intent to injure, defraud or deceive such company, presents to it, or aids or abets in or procures the presentation to it of, any notice, state­ment, proof of loss, bill of lading, bill of parcels, invoice, schedule, account or other written document, whether or not the same is under oath or is required or authorized by law or by the terms of such policy, knowing that such notice, statement, proof of loss, bill of lading, bill of parcels, invoice, schedule, account or other written docu­ment contains any false or fraudulent statement or rep­resentation of any fact or thing material to such claim, or whoever with intent as aforesaid makes, prepares or sub­scribes, or aids or abets in or procures the making, prep­aration or subscription of, any such notice, statement, proof of loss, bill of lading, bill of parcels, invoice, sched­ule, account or other written document intended to be presented to any such company in connection with or in support of any claim under any such policy issued by it knowing that such notice, statement, proof of loss, bill of parcels, invoice, schedule, account or other written doc­ument contains any false or fraudulent statement or rep­resentation as aforesaid, shall, except as provided in sec­tion one hundred and ten or one hundred and eleven, be punished by imprisonment in the state prison for not more than five years or by imprisonment in jail for not less than six months nor more than two and one-half years or by a fine of not less than one hundred nor more than five hun­dred dollars, or by both such fine and imprisonment m jail."

ANTICIPATED FIRES /

Quite occasionally information comes to investigators that a fire is going to take place, either at a given place or because of the actions of a certain person. No general rule can be laid down as to what should be done in a specific case, but there are some general principles which should always be followed.

In the first place, no chances should be taken that can be avoided to prevent the endangering of human lives and the responsibility in all such cases should be assumed by the proper public official to whom the faots may be made known. If the person suspected is a professional arsonist, if danger to life can be avoided, and reasonable precautions taken to pre­vent serious property loss, it is probably better that no steps be taken to cancel insurance or otherwise put conspirators on

37

11

notice, but that an attempt should be made to catch the perpe­trators in the act. In some cases, of course, where adequate precautions cannot be taken against property loss or condi­tions make too difficult or too uncertain the apprehension of the criminals in the act; the insurance carriers should be noti­fied and the insurance canceled, thus doing away at least temporarily with the motive for the crime. In the ordinary case, however, it is usually possible to take such precautions as will insure no loss of life, little property damage and the arrest of the perpetrators. Persons arrested in the act of com­mitting arson almost invariably confess their guilt and many times give to the authorities statements of past crimes. No investigator, however, should take the responsibility for deter­mining the course to be followed in a given case, but should give the facts to the highest public official available who has jurisdiction, and be guided by his advice and the principles above set forth.

THE PYROMANIAC

Pyromania is that term applied to a monomaniac whose obsession centers around fire. He is the firebug who starts fires without rhyme or reason and without any apparent motive.

There has always been a great deal of superstition in re­gard to fire. It has been used as a means of sacrifice and devotion, and the Bible is full of references to the destruction of the wicked by fire. It is within the bounds of possibility that our ancestors, generations ago, were fire worshippers or sun worshippers, and it is not at all strange that, playing so important a part in our sane existence, the phenomenon of fire should manifest itself to the aberrant mind.

The monomaniac is the person with a systematized de­lusion. When this delusion centers around fire, we have the pyromaniac, just as we have the kleptomaniac in the uncon­trollable thief. Every institution for the care of the insane contains many inmates who might properly be classed as pyromaniacs. Unfortunately, asylums do not hold all of these insane firebugs. They are to be found in practically every community and their contribution to the fire loss of the coun-

38

try is appalling. These unfortunates should be carefully watched, since, taken as a whole, they constitute a serious public menace.

Many incendiary fires are set by young boys and girls who have a desire to be the center of interest or who derive some satisfaction from the excitement caused by seeing the firemen conquer the flames. In other cases the impulse to set fires is nothing more than an hysterical reaction against surroundings which have become irksome. These classes of pyromaniacs are usually curable, either by a change of en­vironment or systematic training in emotional control.

In all localities where incendiary fires occur and no appar­ent motive can be found, a thorough search should be made for some pyromaniac or other defective who is probably responsible. He is usually found among those first at the scene of the fire. It is not unusual to find him a member of, or taking great interest in, volunteer fire organizations.

This sort of firebug is insane, but not necessarily legally insane.

In cooperation with the Department of Phsychiatry of Columbia University, the National Board of Fire Under­writers has made an intensive study of pyromania and has published a treatise on this subject called "Pathological Fire­setting."

REPORTS OF INVESTIGATIONS

Reports are an important part of your work and you will assist the work of the Committee materially by making them complete and accurate.

The proper preparation of a report is almost as important as the proper investigation of a fire; our reports should be as full and complete as possible, confined to the facts developed by the investigation and not contain any conclusions of our own or statements of what we believe might have happened.

Theories, conclusions and suggestions, however, of the investigating agents on the ground may be of great value and in all instances should be fully set forth in separate letters accompanying the reports.

39

In order that reports covering the investigations of our special agents may be as uniform as possible, you are in­structed to observe the following form:

A caption containing the name of assured, whether owner or tenant, the place and time of the fire should precede the report.

The first section of the body of the report should contain a description of the building in which the fire occurred. This should be brief, but should contain the number of stories, the approximate number of rooms, class of material of which it is constructed, its approximate age and dimensions. Give the name and address of the owner, and of the occupant if there was one. If vacant, so state.

The second section should contain a sort of pen or word picture of the fire, the year, month and day it occurred, the name of the person discovering it and whether or not the fire department responded. In describing a fire, tell something of how it burned and, if any physical evidence was discovered, tell what it is, as, for example, the building was saturated with gasoline or other inflammable liquids. State whether con­tainers, candles, fire traps, etc., were present; in fact, any­thing that tends to bear on the origin of the fire. If the appearance of the building seems to indicate the removal of goods or stock or articles of sentimental value, make note of that fact. In a dwelling loss, state whether the closets and dresser drawers contained the ordinary supply of wearing apparel, such as would commonly be used by persons dwelling therein. Mention whether new or additional insurance was taken out shortly before the fire or any transaction in con­nection with the insurance which seems to indicate that the fire might have been expected. Any inquiry regarding the validity of the insurance or any mention of the fire previous to its occurrence is important.

The third section should contain all the data relative to the insurance, the correct names of the companies and whether or not the property seems to have been over-insured. If you know the name of the adjuster and the agent representing the companies, indicate it in this section of the report. In listing the names of the insurance companies interested in a

40

particular loss, care should be taken by the investigator to give them accurately. For example, there are the Standard of New York, the Standard of New Jersey and the Standard of Connecticut, so that the name Standard does not mean anything unless you indicate which company is meant. You will be provided with a roll of members and, if you will use a little care in getting a correct and accurate list of the com­panies interested, it will simplify the work of the office. Any mortgages or liens on the property should then be given, including names of interested parties, dates and amounts.

The fourth section should contain the statements of wit­nesses interviewed or their affidavits if such were taken. It is of extreme importance that the correct names and addresses of witnesses interrogated be given, with a statement of what each witness can testify to in regard to the fire.

The closing, or fifth section, should contain any material facts omitted from the previous four sections of your report. The history of the assured, his reputation, financial condition, etc., should be set forth fully. It should contain a note of the arrest if any is made. (Keep a record of any and all arrests and report to the office from time to time any developments, such as indictments, etc.) This section.should include a state­ment of all persons to whom the information obtained has been given and any further action contemplated by the agent or public authorities.

Names. Give the full name and address of owner, tenant, as well as of all principal witnesses, and at least the initials of authorities.

It is particularly desirable that every character coming under suspicion be carefully described in your report. By this means the same individual may be looked up at some later time if the present case fails. This information is omitted too often.

For the special benefit of our loss information service the full names-not initials only-of all husbands and wives of assureds who have had a questionable fire should be given in your report, as well as the full names of other relatives through whom further insurance might be sought. Insurance which

41

could not be obtained if applied for directly is often obtained through the subterfuge of a relative's name, after which another fire occurs.

Be careful to state the precise way in which names should be spelled and explain any discrepancies if names appear with more than one spelling.

For like reasons the same information should be given with respect to persons suspected of guilty knowledge or participa­tion in the questionable fire.

42

STATUTES UNDER WHICH ARSON MUST BE PROSECUTED

At common law, arson is the willful and malicious burning of the house of another. Like burglary, it is an offense against the habitation of another.

The courts have held that the phrase "of another" means another's to occupy. Therefore, under the common law, a man cannot commit arson who burns the building of himself. In some few states, this common-law version still prevails and, while the scope of the law has been enlarged by legislative enactment to include buildings other than dwellings, these buildings must still be those of another.

In certain other states arson is defined as the willful and malicious burning of the dwelling or certain other buildings, the property of another. Nebraska had such a law, as did Illinois, Iowa and Ohio, but these States have enacted the Model Arson Law, which provides that arson may be com­mitted regardless of the ownership or occupancy of the build­ing burned.

There are three salient features of this Model Arson Law, whose important provisions are in effect in the following forty-one States: Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mary­land, Massachusetts, Michigan, Mississippi, Missouri, Mon­tana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

First, it provides that a man may commit arson who burns a building, the property of himself or another. Second, it includes not only those who burn, but, in addition, those who cause to be burned or who aid, counsel or procure the burning of certain buildings. This enables the State to prose­cute as principals those defendants who otherwise might be

43

regarded as accessories before the fact. The third essential feature of this law is that it provides that the preparation of a building for a fire with intent to burn shall constitute an attempt to commit arson. A draft of the Model Arson Law as revised is found on pages 44-45 hereof.

As above stated the Model Arson Law is now in effect in forty-one States. If you are working in a state in which this law has been enacted, you may occasionally find a trial court inclined to sustain a demurrer to an indictment in which a man is charged with arson for burning a building, the property of himself. In such a case, direct attention to the following:

H. M. Gamble vs. State of Tennessee, 19 S.W. 279 or 159 Tennessee 446; or

The Commonwealth of Kentucky vs. Mahala Miller, 27 S.W. 2, Page 689; or

State of New Jersey vs. Morris, 98 New Jersey 621 or 121 Atlantic 290; also see

State of New Jersey vs. Delks, 97 New Jersey 43 or 116 Atlantic 465.

In the State of New Jersey an indictment for arson under Section 123 of the Crime's Act has been sustained by the Supreme Court of that State.

Charles Morris was indicted under Section 123 of the Crime's Act, which reads as follows :

"ARSON: PUNISHMENT. Any person who shall willfully or maliciously burn, or cause to be burned, or aid, counsel, procure, or consent to the burning of any dwelling house, whether it be his own or that of another, or any kitchen, shop, barn, stable, or other outhouse, that is a parcel thereof, or belong­ing to or adjoining thereto, or any other building, by means whereof a dwelling house shall be burnt, whether it be his own or that of another, shall be guilty of arson, and punished by fine not exceeding $2,000, or by imprisonment at hard labor not exceed­ing fifteen (15) years, or both."

One count of the indictment alleged that Charles Morris willfully and maliciously set fire to and burned a certain

44

building in the city of Camden; another count charged that he caused a certain building to be set on fire and a third count alleged that he procured another to burn the building. This indictment, as stated above, has been sustained by the Supreme Court. It does not allege either ownership or occu­pancy, but simply describes the building and locates it with sufficient definiteness to enable the defendant to know the crime of which he was accused.

The following is the form of the Model Arson Law as now recommended :

ARSON-First Degree

BURNING OF DWELLINGS Any person who willfully and maliciously sets fire to or

burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccu­pied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of Arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.

ARSON-Second Degree

BURNING OF BUILDINGS, ETC., OTHER THAN DWELLINGS

Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or pro­cures the burning of any building or structure of whatsoever class or character, whether the property of himself or of an­other not included or described in the preceding section, shall be g~ilty of Arson in the second degree, and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years.

ARSON-Third Degree

BURNING OF OTHER PROPERTY

Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any personal property of whatsoever class or

45

character; (such property being of the value of twenty-five dollars and the property of another person), shall be guilty of Arson in the third degree and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than three years.

ARSON-Fourth Degree

ATTEMPT TO BURN BUILDINGS OR PROPERTY

(a) Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in the foregoing sections, or who commits any act preliminary thereto, or in furtherance thereof, shall be guilty of Arson in the fourth degree and upon conviction thereof be sentenced to the penitentiary for not less than one nor more than two years or fined not to exceed one thousand dollars.

DEFINITION OF AN ATTE11PT TO BURN

(b) The placing or distributing of any flammable, ex­plosive or combustible material or substance, or any device in any building or property mentioned in the foregoing sections in an arrangement or preparation with intent to eventually willfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of same shall, for the purposes of this act constitute, an attempt to burn such building or property.

Burning to Defraud Insurer

Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of him­self or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felony and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than five years.

Prosecutions Where No Fire Occurs

It quite occasionally happens that the plans of persons to set fires are frustrated before the fire actually occurs. In such cases it is usually possible to prosecute for conspiracy

46

to commit arson or to defraud an insurance company or some similar offence. To do so it is necessary that there shall have been an agreement to commit the crime and some overt act taken in further·ance of the arrangement. In New York State the crime of conspiracy to commit arson is complete with the agreement, no overt act being necessary. ("Penal Law," Sec­tion 583.) A single person may be prosecuted for conspiracy if the indictment alleges other conspirators who need not be named as defendants.

In States where the Model Arson Law is in effect such cases are very clearly covered by the provisions of that Act, as to attempts to burn buildings or property.

The language of the Model Arson Law and similar acts reading substantially as follows:

"Any person who shall willfully set fire .to or burn or aid, counsel, procure or consent to setting of fire or burning"

has been held to cover separate and distinct offenses-the setting fire, the aiding in the setting of fire, the counselling, the procuring, etc.

The Supreme Court of the State of Tennessee so held on March 16, 1929, in the case of John J. Collier and T. E. Rhodes vs. Tennessee, and in State vs. Brand (76 N. J. L. 267, Aff'd 77 N. J. L. 486), the Supreme Court of the State of New Jersey held that the aiding, counselling, procuring or cons~nt­ing to setting fire to or burning of insured property was a crime, whether the act itself was ever done or not.

The Court of Errors and Appeals in its decision neither affirmed nor modified this holding of the Supreme Court that the act itself need not be ever done, contenting itself with pointing out that the indictment was sufficient if it charged the offense in the language of the statute and that if the statute required the act to be done, the indictment charged it.

The Supreme Court in the Brand case made special refer­ence to the case of the Commonwealth vs. Flagg (Mass. Rep. 549) in which Chief Justice Morton said, citing numerous authorities: "It is an indictable offence at common law for one to counsel and solicit another to commit a felony or

47

other aggravated offence, although the solicitation is of no effect, and the crime counselled is not in fact committed."

In this case Flagg had endeavored to persuade an ac­quaintance to burn a barn belonging to a third person, urging him to do so on two or three occasions, promising him money for doing so and, in fact, advancing a small sum on account. The person solicited, however, apparently took no action looking to the burning of the barn, but the conviction of Flagg was sustained.

In King vs. Higgins (2 East 5) the Court said: "The whole argument for the defendant turns upon a fallacy in assuming that no act is charged to have been done by him; for a solicitation is an act. The offence does not rest in mere intention; for in soliciting Dixon to commit the felony, the defendant did an act towards carrying his intention into execution. It is an endeavor or attempt to commit a crime."

As vigorous prosecution should be urged in all attempts to commit arson as would be proper had the fire occurred, for criminals are not entitled to any consideration because of the intelligence and efficiency of the police authorities.

STATUTES OF LIMITATIONS IN RELATION TO INCENDIARY FIRES

In some states arson is never outlawed, while in others prosecutions must be started within two years after the crime. In some states there are different statutes of limitations cover­ing different kinds of malicious burning, there being a longer period for arson coming within the earlier definitions of this crime and a shorter period for certain statutory malicious burnings. There is appended hereto a table giving information concerning statutes of limitations in various states.

In the States of Delaware, Kansas and New Jersey there are two-year statutes, which are believed to be much too short. Persons interested in better law enforcement in these States might well advocate raising the statutory period to five years.

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THE PROPER PREPARATION OF AN ARSON CASE FOR TRIAL

In discussing the subject of the proper preparation of an arson case, it is necessary to restrict somewhat the treatment of it, or burden ourselves with a futile attempt to cover the whole field of criminal investigation and jurisprudence. As­suming, of course, that our efforts are loyal, sincere and intelii­gent, there are often times when certain influences are brought to bear upon these efforts that render them of little value despite their prima fade import. These influences must be met in the proper preparation of a case for trial, and it is not the intention to deal with them at length at this time.

The ultimate object of our work is to discover the truth and we must arrive at this truth through information furnished us by parties more or less unknown. It is first necessary to analyze, as it were, each witness to determine his opportunity for knowledge and his interest or lack of interest, in order to decide just what value to place upon his information. In­formation all looks alike when reduced to writing, and, as such, it never varies, but, as we know, when our informers become witnesses, there seems to be some irresistible force which compels them to swear vaguely and indefinitely. Therefore it behooves us as investigators to study carefully every person in the case with a view as to their future value as witnesses and determine to what extent they may be relied upon, and what part of their information may be introduced as evidence of a convincing nature.

Having covered a given case and exhausted every avenue of information, the results should be consolidated and a thor­ough study made in order to arrive at a true theory. You are in truth a physician to the moral incendiary ill of the com­munity and the proper diagnosis is imperative.

Thus far, you have been most concerned in convincing yourself, and once arrived at the true theory of the case, the information obtained must be boiled down to plain facts. Such facts must be arranged and co-ordinated in their order

49

as material and admissible evidence to prove certain legal phases of your prospective case. It of course follows that you are dependent upon some person by whom to establish each and every essential fact, bearing in mind that in order to obtain and sustain a conviction the evidence must convince the court, which is the judge of the law, and the jury, which is the judge of the facts.

In general, for our purpose, our activities in a given case may be classed under two heads: first, proof of origin : second, connection of a suspect.

Proof of origin is known in the legal parlance of criminal investigation as the corpus delicti. As applied to an arson case it is proof, either direct or circumstantial, that the origin or cause of the fire was the direct result of human agency criminally employed with the intent to start said fire. This, of course, must be established by competent testimony before any further progress can be made in a successful investigation, or a criminal trial.

Connection of a suspect being the next step, you must consider under this general head such facts as tend to fix personal responsibility as a principal for the crime which you have heretofore determined as having been committed. Under this head, named in the order of their importance, are accessi­bility, motive and preparation-in truth, every fact capable of being established by a reliable witness as competent and ad­missible evidence material to the issue.

It necessarily follows that the investigator must first of all try the case in his own mind and from an impartial stand­point be satisfied with what he conceives to be admissible testimony in order to present intelligently the case to any prosecuting authority.

From this point the investigator must be governed by local conditions and, unnecessary to state, common sense. If he elects to proceed on a warrant immediately after the arrest, his suspect becomes a defendant, and as such is guarded by rigid constitutional guaranties.

In the event of a demand for commitment, the better course to pursue is not to play your full hand in the submis­sion of testimony to the court of inquiry, but to submit only

50

sufficient essential facts to create a reasonable indication of guilt, in order to assure the retention of the defendant.

It follows at this point that it is highly essential to draw a distinction between information and evidence. In order to be sure from a standpoint of evidence, prospective witnesses who you have determined are able to furnish material testi­mony should be questioned in a manner to bring out and fix in their memories that portion of their information which is essential to the making out of a case. Important positive witnesses upon whom you are dependent should be ques­tioned in the presence of or by the prosecuting attorney, not only for his information, but in order that he may take ad­vantage of that fact in the event of their failure to testify in accordance with information given by them, or rather state­ments made by them. It enables the court to grant permission to cross-question your own witness, if it appears that he is not a willing witness, and in the case of the trial of principals where testimony of confessed accomplices is being offered, it enables the prosecuting attorney, in the event of repudiation, to state that he has been entrapped or surprised, i. e., led to believe and has relied on a given statement of facts. It makes little difference for what purpose such a statement is offered; if the facts once get hefore a jury where there is any other evidence to support a verdict, it has been known to secure many justifiable convictions in the face of vigorous defense.

While proof of motive is not legally essential to the de­termination of guilt, it is always admissible once the fact of a crime is established and you will find that it is necessary to show the true motive in order to secure convictions for arson, particularly where your dependence is on circum­stantial evidence. The legal measure for circumstantial evi­dence is the presentation of a state of facts not only consistent with the guilt of the assured, but inconsistent with every other reasonable hypothesis save that of the guilt of the accused. Failure to prove a true motive leaves a loophole for acquittal in this class of cases.

An essential feature in the preparation of an arson case when the established facts warrant prosecution is reasonable anticipation of the defense. We must realize that in the

51

majority of cases the evidence must establish a legal and moral certainty excluding every reasonable possibility in con­tradiction to the theory of the prosecution, both in establish­ing the corpus delicti and in fixing the personal responsibility. Too often are we content to go to trial on a state of facts sufficient to sustain a conviction, but we fail to obtain same because we have overlooked the opportunity to provide testi­mony to rebut a material point in the defense which we might have anticipated. Therefore, it is not wise to ignore informa­tion friendly to your suspect because it might prove valuable to you as an indication of the trend of the defense.

It is necessary that the evidence you have developed be such as will convince not only yourself, but impress the prosecuting attorney that it is sufficient to justify arrest and prosecution, realizing that, while information may convince ourselves, it will take positively sworn facts to convince a jury, and even these have been known to fail.

It would seem to be true that the weakest construction that can be placed upon a given state of facts is really the strength of an arson case. The trend of juries many times is to acquit and they often seem to search for this opportunity. Therefore it follows that the proper preparation of an arson case involves a careful study of all information available for its value as evidence, and cooperation with the prosecuting attorney in the selection of the best available witnesses to present the essential facts in their most positive form.

52

INFLAMMABLE GASES AND LIQUIDS

There are a number of gases with which you will fre­quently come in contact, the most common of which is illumi­nating gas.

Illuminating gas is ordinarily prepared from the distilla­tion of coal, but in many sections natural gas is used; it has a distinctive odor. It is lighter than air, but diffuses or mixes with air very readily, and explodes with a terrific force. Being lighter than air, a building becomes filled with it (when the gas jets are turned on) from the top down; consequently a flame is usually placed at the floor or near the floor and when the building becomes filled with gas, the explosion takes place with tremendous force.

Acetylene: This is a hazardous gas, used to some extent in illuminating dwellings, and is lighter than air, although there is not much difference in the specific gravity of acetylene gas and air. It is generated by the action of water on calcium carbide.

Gasoline vapor: It should he remembered that the vapor from one pint of gasoline will render 200 cubic feet of air flammable and explosive. The only favorable characteristic of gasoline is its relatively narrow range of combustibility, i. e., 1.3 per cent vapor to and including 6 per cent vapor, and this is mainly offset by the fact that it is from 2~ to 3 times heav­ier than air and diffuses very slowly. This explains why gaso­line explosions usually occur in cellars, basements or other low points where the vapor tends to collect. /

Naphtha and Benzine: These have the same explosive tendencies as gasoline.

Alcohol and Ether: Alcohol, either wood or grain, burns with intense heat, and usually with a sort of blue flame. It is easily ignited; its vapor is heavier than air, but it diffuses or mixes with air very rapidly and in proper proportions gives an explosive mixture.

The Engineering Department of the National Board <;>f Fire Underwriters has a great deal of data and many publi­cations on hazardous materials and explosives. As a special agent of the National Board, you are privileged to get any of this material by applying in person to the National Board office from which you are working, or addressing John A. Neale, Chief Engineer, of our New York office.

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Flash Point of Oils and Volatile Liquids

Deirees Fahrenheit

Acetic acid glacial ····-·---·····-···-···-······-···-······-····-···············-···- 111 Acetone -·-··-·--··---··-··-····-····-··--····················--··············--······ 35 Alcohol denatured ·······-·······--··-··-··-················-···-················-·········· 40 to 50 Ethyl alcohol 95%---···········-······ .. ·············-··-·······-········-······················· 55 Ethyl alcohol 80% ....• - ...................... ·-···········-············-·······-···-··········· 66 Ethyl alcohol 60%---········-··················--·-······-··-···············-··········· 72 Ethyl alcohol 40%----·-···-····························-·-···-································ 80 Methyl alcohol 100% ...... - ............................... ·-·····-················-·······-···· 49 Methyl alcohol 80%----············-··-···-············-··-···-······-···-············· 62 Amyl acetate (Banana oil) ...................... -............................................ 77 Butyl acetate -··---····-··-·-···-····-.. ··-···-····-········································· 95 Ethyl acetate ····································-··-············-······································ 40 Benzol 90% ····-·······-················-··········-····-·······················--·····-··········· 41 Benzol 50% ························-···-······-··············--·······-····························· 59 Benzine ······························-··············-·························-················-··········· 5

~:l~~li~~h;~-:~:.::::::::·.::::::~.::::::::::::::~.:~:~:~.::·.::::~.:::::::::·:::::::·.:.:~.::·.::::::::·.:::· 0 to ~ Carbon disulphide ·-···············-········-·······-·······-··············-················-·· 4 Kerosene oil -················-················-·······-···-·········································· 110 to 150 Ethyl chloride ··········-··········-·-········-······-········-···································· O Fusel oil ······-···-··-····---···············-·························-···············-··········- llO to 130 Methyl acetate --·····-········-······-·······-····-·-·······-··············-················- 40 Turpentine ················-···············-······-················-··································- 95 Analin ·······-·······-··············--······················-············································- 78 Toluene ···············-······-··-······-·················-··-·········································- 44 Xylene ················-················-·····························································-·····- 86 Heavy naphtha -················ .. ···········-········-··········································-···· 60 to 108 Solvent Naphtha ····-······-·······-.. ··············-················································· 40 to 66 Crude Petroleum ············-·········································-······························· 69 to 73

~i~~h~:~: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: }~i Naphthaline ··························-···································································· 392 Olive oil ····--·······-·······-··--········-·······-·······-·······-································ 420 Cottonseed oil ·········-····-··-··········-·····-················-····-····-····-·············· 336 Rosin oil ····-···················-·······-··············-··································-·············· 266 Paraffin oil ················-············-·························-······································· 224 Paraffin wax ····-··············--·····-······························································· 360 to 400 Linseed oil .................................................................................................. 600 to 660 Lard oil ····················-·······-·········-·······································-·······-·······-·- 464 Lubricating oil -·························-·················-······-················-················ 500 to 600 Light motor oil.......................................................................................... 392 Spermaceti ····-··-······-································-·············································· 482 Tar ·········-········--·-··-····························-··································-··········-···· 160 to 180 En!?ine spindle oil ...... -········-··············-···················································· 275 to 374 "Vanrolene" (trade name) ····················-·······-·························-············ 95 to 112

54

Statutes of Limitations

Alabama-None Arizona-5 years Arkansas-3 years California-3 years Colorado-None Connecticut-5 years Delaware-2 years District of Columbia-3 years Florida-5 years Georgia-4 years ldah~ years Illinois-none as to dwellings;

other buildings 3 years Indiana-None Iowa-3 years Kansas-2 years Kentucky-none Louisiana-On what amounts to

arson under civil law, none ; on statutory burnings not defined as arson, 1 year, from time prosecutor gets information

Maine-None Maryland-None Massachusetts-6 years Michigan-6 years Minnesota-3 years Mississippi-none Missouri-3 years Montana-3 years Nebraska-None

55

Nevada-4 years New Hampshire-None New Jersey-2 years New Mexico-None New York-On Arson, 5 years. A

prosecution for a mis­demeanor must be com­menced within two years after its commission.

North Carolina-None North Dakota-3 years Ohio-None Oklahoma-3 years Oregon-3 years Pennsylvania-5 years, felony

2 years, misdemeanor (depends on class of building burned)

Rhode Island-3 years South Carolina-None South Dakota-3 years Tennessee-real property, 4 yrs.

personal property, 2 yrs. Texas-Arson, 5 years

Burning to defraud, 3/years Filing false proof, 2 years

Utah-4 years Vermont-None Virginia-None Washington-3 years West Virginia-Arson, none

1 year on a mis­demeanor

Wisconsin-6 years Wyoming-None

IN DEX

Page Accidental Origin

Elimination of ............•.•............. 26 Presumption of ·········-··············· 17

Accomplice

Who is················-························ 31 Corroboration of ........................ 31

Adjacent Buildings ·········-·············· 10 Adjusters, Agents' Cooperation

with ····································-········12-15 Alarm, source of ···-························· 9 Analyses ····················-··········-············ 10 Anticipated Fires .......................... 37-38 Arson

Degrees of .............................. ..45, 46 Attempts ........................... .46, 47, 48

Attempts ................................ ..46, 47, 43

Circumstantial Evidence ................ 18 Weight of ····-··--······················33-34

Confessions ..... .11, 18, 19, 20, 28, 29, 30 Admissibility of .......................... 29 Competency of ·--···-·················· 29 Confirmation ····-·······-················· 11 Extra-judicial ···-·····-····-·······-.18, 19

Conspiracy ...................................... 46-47 Corpus Delicti... .... .17, 18, 19, 20, 21, 22

Confessions to establish corpus delicti ····-·········.18, 19, 20

Debris ··············-·······-························· 9 Debts ····························--··-·······-····· 10 Doors ·························-·······-····-········ 9 Electrical Apparatus ··-··················9, 26 Enemies ············--·····-·-···············.10, 35 Expert Testimony

As to origin ········-·········-22-23-24-25 As to values ··········--···-·-········ 27

False Statements ··-······-················· 32 Financial Condition ···············-········· 10 Fingerprints ····················-··-······9-10, 26

Page Fireman

Evidence, preservation by .......... 9-10 Evidence, gathering by .. ·-····-··· 9-10

Footprints ············-··············-··········9, 20 Foreclosures ······--········--·············-· 10 Frauds .............................................. 36-37 Furniture Arrangement. __ ....... 9, 21, 26 Gases and Liquids, inflammable .... 53-54 Guards ..............•...................•.•.•........• 10 Incendiary Origin ..•.•....•.•....... 21, 22, 23 Inflammable, gases ........................ 53-54 Instructions for National Board

Agents ··········-································ 3 Attitude of investigator ..•..•... _. 4 Cancellation of policies............ 7 Complaints ·················-··············· 5 Cooperation ... - ...•... 4, 11, 12, 13, 14 Expenses ····················-········-···· 7, 8 Firebugs .................................... 7, 38 Frame-up ·································- 4 Induced crimes ·······-·--·····-···· 4 Libel ............................................ 5 Personal conduct ...................... 4-5

Physical evidence ··················- 6 Publicity -············-·-·······-····-···· 4 Pyromaniacs ...................... 7, 38-39 Record of cases ·················-·- 6 Reports

Daily ·············-········-··············· 6 Preliminary .................. ·-···-- 6

Status ··············-········-··-···-·· 8 Summary .............. 39, 40, 41, 42

Slander ···············-·················· .. ··· 5 Status of agents ... ·-···········-····· 5 Status of work .... ·-····--··--······ 5 Traveling ·················-·-···-········ 7-8 Whereabouts ···-······················-· 5

Insurance ·····················-······-··.10, 28, 35

56

INDEX-Continued

Page

Intent ···-·····-·-·······-·---26-27, 35 Law of Arson·-····--···-·--···-·· 16 Limitations, Statutes oL ............ .48, 55 Loss Information Service ... ---·-·· 41 Mail Frauds ...................................... 36 Membership Roll --··-·····-······· 41 Model Arson Law ... .43, 44, 45, 46, 47 Motive ·····-·····---·········21, 27-28, 35 Names ................................................ 41

Precise spelling .......................... 42

Relatives --····--------·· 41 Odors ··············-··-····--······-·-·········9, 22 Opinion Testimony ___ .. ..22-23-24-25

Opportunity ···-·········-····-·······--21, 32 Origin of Fires ····-·-·-·-········-···.17-18 Over-Insurance ····-··-··················-·· 27 Pictures ············-·······-······················9, 10 Plants ········-··--········---·····-············· 9 Police

Investigation by ···-···················10-11 Preparation for Trial ....... .49-50-51-52 Previous Fires ··········-··················11, 32 Prosecuting Attorney ····--·············· 11

57

Page

Pyromaniacs .................................... 38-39 Radios ··-·-··--································ 9 Recent Insurance ---··- 28 Records-previous fires ____ 11, 32

Refrigerators ·-··-···--··-····-··--· 9 Requests to Btml-..-----··- 35 Residue -··--·······-·--·----··-- 9 Scorching ··········-·-·-·······-·······---··- 17 Sewing Machines -····--··-·····- 9 Silverware ········-·········--······--········ 9 Smoke ·············-·······--···-···········9, 17, 22 Statutes •.................................. .43, 48, SS

Taxes ······--······-····-···-···················· 10 Telephone Records -·--·-·········-···· 11 Tire Tracks ····-··········-··-··············9, 20 Trailers ·············-·········--·················· 9 Trophies .............................................. 9 Two or More Fires.......................... 9 Visits and Visitors .................... _...... 10 Washing Machines ··-············-····-- 9 Wearing Apparel····--·-·-··--····· 9 Wedding Presents ····-···-··-··-··-··- 9 Windows ··············-·······---·-··--···· 9