No, 12182 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

STATE OF MONTANA, Plaintiff and Respondent,



### -vs

# - EDWARD R. MURDOCK, Defendant and Appellant,

Appeal from: District Court of the First Judicial District, Honorable Victor H. Fall, Judge presiding. Counsel of Record: For Appellant: William Dee Morris argued, Helena, Montana 59601. For Respondent: Thomas F. Dowling, County Attorney, Helena, Montana 59601. Leif B. Erickson, Deputy County Attorney argued, Helena, Montana 59601. Robert L, Woodahl, Attorney General, Helena, Montana 59601. J. C. Weingartner, Assistant Attorney General, argued, Helena, Montana,59601.

Submitted: June 19, 1972

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted of firstdegree arson following ajury trial inthe districtcourt of Lewis & Clark County, Hon. Victor H. Fall, district judge. Defendant was subsequently sentenced to ten years inthe Montana State Prison and 

### now appeals from thejudgment of conviction. During themonth of June 1971, defendant Edward R. Murdock started tobuild a house 

### on a tractof land inthe Helena valley known as the Sewel1 tracts. By about August 1the two-story house, 40 x 30 feet, was largely completed but the second floor was unfinished. In the latter part of July defendant contacted Schroeder Brothers Company, a Helena insurance brokerage firm, to purchase fireinsurance on his house. They declined to sell him fireinsurance atthat time because the house was not completed. On August 3 defendant again contacted Schroeder Brothers for the same purpose after the house was completed. Frank Mihelish of Schroeder Brothers appraised the house at$25,000 and suggested defendant purchase a fireinsurance policy inthis amount. Defendant, however, insisted

on a $35,000 policy which Schroeder Brothers wrote and defendant paid for. During defendant's second visitto Schroeder Brothers he was asked if there was a mortgage on the house, and he answered inthe negative. On August 6 defendant asked Schroeder Brothers to add the name of S. F. Parker to the policy as mortgagor. On August 10, defendant again appeared at Schroeder Brothers to check whether his policy was in full force and effect and was advised that itwas. A fireoccurred on August 19about 6:30 a.m. when defendant was not athome. The house was partially destroyed by fire. The West Valley Fire Department answered the firealarm. Upon arrival they found the house locked and forced the door to gain entry. During the course of putting out the fire and securing the premises, they noted various indications which led them to believe the firewas of incendiary origin and that arson might be involved.They so advised the deputy statefiremarshal, Gary Younker. Younker arrived atdefendant's house about 3:00 p.m. and commenced his investigation. He inspected the partially burned house, took pictures, and interviewed witnesses. He gained entry to the unoccupied house by removing the boards from the door which the firemen had used,to secure the premises when they leftafter putting out the firethat morning. The investigation by the firemen and deputy statefiremarshal Younker revealed that the firestarted in the furnace room on the first floor. Oil soaked rags were stuffed in the wire and control system of the oil furnace. The rags led 

### totwo plastic containers containing a flammable liquid. The thermostat on the furnacewas set atapproximately 75 degrees. When the thermostat clicked on the furnace ignited the rags which in

### turn started a blaze inthe furnace room which started burning the ceiling of the furnace room. Directly over the furnace room on the floor of the second story, various volatile items were stored--2 fivegallon cans of gasoline, 1 twenty-five gallon can of propane with gas escaping from it, some flammable paint, and two rolls of tarpaper. The carpeting inthe house was soaked with oil. The firemen who fought the blaze noted the entirehouse was permeated with the odor of oil

# . They a1so observed that a11 of thewalls were paneled and there was no insulation between the paneling and the outside walls. The firemen and deputy statefiremarshal Younker concluded the firewas the result of arson. 

### Mr. Val Ketchum, who helped install the furnace, indicated that three weeks afterthe furnacewas install ed, defendant called him and to1d him the oil lines were leaking. Ketchum checked and found no such leak. About a week later, defendant again called Ketchum and told himtherewas "oil running al1

over the place". Ketchum investigated and found 

### two drops of oil on a fitting. Atthis time Ketchum completely checked the furnace and gave ittheseal of approval. The furnace was equipped with various safety devices which imnediately shut off the furnace in the event of a malfunction. Ketchum stated the only way the furnace could starta firesuch as the one involved here the fire would be if itwere tampered with. He investigated the furnace afterland found ragsjammed inthe electrical system which damaged the safetymechanisms, which inturn resulted ina continual flow of oil. He concluded that the furnace had been manually tempered with causing ittowork improperly. On the day after the fire, defendant appeared atSchroeder Brothers, inquired if the firehad been reported, and was taken to the insurance adjuster todiscuss settlement. Itlaterdeveloped that a $40,000 mortgage had been recorded on the property running from defendant 

### toS. F. Parker, the mortgagor. This mortgage was given 

### tosecure payment of a promissory note for $40,000 bearing 6%interest and payable atthe rate of $100 per month, including interest. Defendant was both the solepayee and the solemaker on the note. Defendant was charged with firstdegree arson by information filed directly inthe districtcourt. He entered a plea of "not guilty". Prior to trial he moved for the suppression of certain objects and things, allegedlytaken from his house as a result of an unlawful search and seizure, and hismotion was granted. Trial by jury commenced on November 8, 1971. Basically defendant's defense was (1) failure of the statetoprove the essential elements of the crime beyond a reasonable doubt, and (2) a1ibi. Defendant did not testify. During the course of trial the statewas permitted to examine Jack Parker, husband of the alleged mortgagor S. F. Parker, as an adversewitness. Counsel for defendant also represented Parker atthe trial. Defendant claimed such adverse witness ruling and examination was improper,that the district court ruled Parker a defense witness, and that defendant

was denied the right of cross-examination. Subsequently, defendant attempted to establish his defense of a1ibi by testimony that he had gone 

### to Harlowton, Montana, the day before the fire; stayed ina motel there that night; left the motel the next morning; and did not return to his home in the Helena valley until the day after the fire. Defendant called the motel owner and attempted to secure admission in evidence of a motel registration card on which his name was printed. The motel owner could not identify defendant as the person who stayed atthe motel. The proferred motel registration card was denied admission in evidence. Defendant was convicted of firstdegree arson as charged. He was sentenced to ten years imprisonment in the stateprison where he now remains. Following denial of various post-trial motions by defendant, he now appeals from thejudgment of conviction. Defendant assigns ten issues for review upon appeal which can be summarized in thismanner: 

### (1) Was there probable cause to support the filing of a direct information? (2) Was evidence secured as the result of an unlawful search and seizure used atthe trial to procure defendant's conviction? (3) Was evidence relating to insurance and credit improperly admitted atthe trial? (4) Did the district court err in denying defendant's motion for a directed verdict of acquittal? (5) Was the motel registration of defendant improperly denied admission in evidence? (6) Was there error in jury instructions? (7) Was there a fatal variance between the crime charged and the proof?(8) Insufficiency of the evidence to overcome the presumption of innocence? (9) Did the districtcourt erroneously apply the law of arson in itspretrial, trial, and post-trial rulings? (10) Did the district court err indeclaring witness Jack Parker

an adverse witness, in requiring the defendant to accept thiswitness as

a defense witness, and inopenly quarrelling with defendant's counsel in the presence of thejury over this issue? Directing 

### our attention to the first issue, we hold there was probable cause to support the filing of a direct information. Deputy state firemarshal Younker testified under oath inopen court insupport of the state's motion for leave to filethe information direct. A complete transcript of his testimony is included inthe court file. From his testimony the following facts are established: (1) The smell of petroleum products permeated the house. (2) Oil soaked rags had been placed inthe fire chamber of the furnace. (3)These rags ran down into two containers of fuel oil. (4)The thermostat on the furnace had been setforapproximately 75 degrees on a summer day inAugust. (5)The house was over-insured. (6) Defendant owed bills all over town for construction materials. (7) The house was mortgaged for $40,000. (8)The monthly payments on themortgage would cover only half the interest accrued during the firstyear and less than that in subsequent years. (9) The carpeting inthe house was soaked with fuel oil. (10) There were substantial amounts of gas01ine, propane, flammable paint and tarpaper located directly above the furnace room. (11) The house was locked and defendant had the only keys. (12) The firewas the result of arson. (13)The firewas arranged to occur during the earlymorning hours 

### when defendant was absent. (14)The mortgage and promissory note were questionable. These facts are abundantly sufficient to establish probable

cause for filing a direct information charging defendant with firstdegreearson. See State

### v. 

### Dunn, 155Mont. 319, 472 P.2d 288; State

### v. Johnson, 149Mont. 173, 424 P.2d 728; State 

### v. Peters, 146 Mont. 188, 405 P.2d 642; and section 95-1301, R.C.M. 1947, forthe procedural and substantive requirements for establishing probable cause. the Onlsecond issue, defendant claims that Gary Younker, the deputy statefiremarshal, entered defendant's house without a search warrant for the purpose of securing evidence 

### toestablish arson and while there he took pictures and removed certain items of physical evidence. Defendant contends the use of such evidence atthe trial, despite the court's previous ruling to suppress this evidence, constitutes an unreasonable search and seizure in violation of Article 111, Section 7 of the Montana Constitution and the Fourth Amendment to the United States Constitution

# . Atthe outset we observe that Montana statutes grant the deputy statefiremarshal the right to do what he did here. He has the authority to inspect all fires. Section 82-1209, R.C.M. 1947. He isgranted the power" to inspect and examine all buildings where a firehas occurred. Section 82- 1217, R.C.M. 1947. Section 95-701(d), R.C.M. 1947, provides that a search is lawful if done within the scope of a right of lawful inspection granted by law. The items of physical evidence he secured from the premises were suppressed and not used atthe trial. The pictures he took and his testimony concerning 

### his inspection and examination of the premises were admitted in evidence. Thus itisclear that the deputy statefiremarshal was not required to secure a search warrant to do this under the foregoing statutes, and that the evidence was admissible pursuant to such statutory authority. The real question here, however, iswhether this satisfied state and federal constitutional requirements of a search warrant and the prohibition against unreasonable searches and seizures. We hold thatthe better reasoning supports the view that what occurred inthe instant case does not violate such constitutional requirements.Younker's testimony as 

### towhat he saw and discovered atthe time of his inspection isadmissible under the "open fields"doctrine. State



### v. Perkins, 153

### Mont. 361, 457 P.2d 465; Romero 

### v. Superior Court, 72 Cal.Rptr. 430, 266 C.A.2d 714. Furthermore, the constitutional prohibitions are designed 

### toprotect a person's right to privacy; itcan hardly be contended that the right to privacy in a partially burned dwelling after a fire isparamount 

### tothe right of the public to a reasonable inspection of premises damaged by fire in the interests of pub1ic safety and detection of incendiary fires. Butperhaps themost compelling reason of all is simply that probable cause for the issuance of a search warrant could seldom be established if access 

### to fire-damaged premises is denied without a search warrant. The third issue iswhether evidence relating to insurance and credit

was properly admitted. Testimony was permitted atthe trial tending to prove that defendant was indebted to several businesses for construction materials and supplies, that liens had been filed, that fireinsurance in excess of the value of the house had been procured, that a questionable mortgage and note had been executed relating to the premises, and likematters. This evidence 

### is admissible to show defendant's motive for the crime charged. Although motive is

### not an element of the crime, motive or lack of motive isa circumstance tending to establish guiltor innocence. State

### v. Hollowell, 79 Mont. 343, 256 P. 380; State

### v. Simpson, 109

### Mont. 198, 95 P.2d 761. The jury was so instructed by court's instruction 

### No. 16. There was no error here. Defendant's fourth issue for review iswhether defendant's motion for

a directed verdict of acquittal atthe conclusion of the state's case-inchief should have been granted. Defendant contends the state failed to prove beyond a reasonable doubt three essential elements of the crime of first degree arson: (1) that the firewas of human incendiary origin; (2)that defendant setthe fire, and (3) that defendant was actuated by malice.From what has been reviewed heretofore, itisbeyond cavil that the firewas of human incendiary origin. Itisequally clear there is substantial evidence that defendant caused the house 

### tobe burned. This isequivalent to setting the fireunder Montana's firstdegree arson statute, section 94-502, R.C.M. 1947, which reads inpertinent part: "Any person who willfully, feloniously and maliciously sets fireto 

### or burns orcauses to be burned orwho aids, counsels or procures the burning of any dwelling house

## * * * shall be guilty of arson in the firstdegree 

## ** **'I 

### To be sure the evidence 

### is circumstantial, as in most arson cases. Nobody saw defendant startthe fireor saw him prepare the premises for the firethat resulted. 

### But the evidence does 

### show that: defendant was the sole occupant of the house; he had the only keys to the house; there were no 

### signs of forced entry into the house; the house was prepared for a fireby jamming the safetydevices and electrical circuit in the furnace with oily rags leading 

### tocontainers fill ed with volatile 1 iquids; gas01ine, propane, and other flammablematerials were placed 

### on the floor directly above the furnace; the thermostat was setto firethe furnace inthe earlymorning hours when the temperature 

### on the inside of the house fell below 75 degrees; the rugs inthe house were soaked withoil; the furnace had manually been tampered with to cause itto malfunction and emit a continuous flow of oil when itturned 

### on; and defendant, tothe exclusion of anyone else, had both the motive and opportunity 

### toburn the house down. Such circumstantial evidence issufficient to establish thatdefendant caused the fire. That defendant setthe firemaliciously isalso established beyond

a reasonable doubt by the foregoing circumstantial evidence. Malice in law may be either express or implied and consists of willful and wanton destruction of the house by fire. The foregoing circumstantial evidence is sufficient to establ ish imp1ied ma1ice beyond a reasonable doubt if be1ieved by the jury, which precludes a directed verdict of an acquittal.

### This Courtpreviously held in State

### v. Yoss, 146Mont. 508, 514,

"Adirected verdict in a criminal case in this jurisdiction is given onlywhere the State fails to prove its case and there is no evidence upon which a jury could base its verdict." Here, the evidence in the state's case-in-chief meets this test, Accordingly the district court'sdenial of defendant'smot.ionfor a directed verdict of acquittal was correct. Defendant's fifth issue is that the trial court erred in refusing the motel registration slip in evidence. This evidencewas offered through Mabel Blaquire, the operator of the Troy Motel in Harlowton,Montana,who was called as a defense witness to establish the presence of defendant there during the night of August 19,when his house 

### in the Helena valley was burned. It was denied admission in evidence on the grounds of improper foundation and irrelevance. Mrs. Blaquire testified that she could not identify the defendant as the person who signed themotel registration or occupied the motel room. The registrationcontained no written signature,but did contain the printed name of defendant. It also contained a truck license number and description that was not connected up with defendant. Although themotel registration was undoubtedly a business record, it did not tend to prove or disprove any issue in the case. The identityof defendant as the person who printed the name on the motel registration was never established. Even if it be assumed that defendantwas that person, his physical presence therewould not tend to establish an a1ibi under the circumstances in which the fire started in this case. It does not tend to prove
or disprove any issue in the case. As such it is entirely irrelevant, in addition to lack of proper foundation for its admission. The district court

was correct in denying its admission 

### in evidence. The sixth issue raised by defendantpertains to jury instructions.Neither his brief nor oral argument discloses eitherwhat instructions given were incorrect or what proposed instructions should have been given.
K Under such circumstances any objection tojury instructions iswaived, and there is nothing for

### us todecide. Defendant's seventh issue concerns whether there isa fatal variance between the crime charged and the proof atthe trial. He argues that the crime charged isfirstdegree arson and the proof atthe trial was directed atproving the burning of a building todefraud an insurer, a separate and distinct crime. From what has been said heretofore, the elements of the crime of firstdegree arson were established as a jury question by the state'sproof. The factthat the same proof might also tend to establish a differentcrime, i.e. burning a building to defraud an insurer, in no way establishes a varthe iance betweenlcrime charged and the proof. The insurance feature of this case tends to establish a motive for the crime of firstdegree arson with which defendant was charged. 

### As defendant was neither charged nor convicted of burning a building 

### todefraud an insurer, no variance isestablished. Issue eight questions the sufficiencyof the evidence to overcome the presumption of innocence withwhich defendant isclothed throughout the trial. The circumstantial evidence previously discussed and held 

### tobe sufficientto convict rebuts any such presumption of innocence thatmight otherwise prevai1

# . This contention istotally devoid of substance and merits no further discussion. Defendant's issue nine contends that the districtcourt erroneously applied the law of arson initsrulings on pretrial, trial, and post-trial motions of defendant. If we properly understand defendant'sargument, he contends that the admission of inadmissible, irrelevant and prejudicial evidence unrelated to the elements of the crime of firstdegree arson prevented him from having a fairtrial. Defendant refers to the admission of photographs taken by the deputy statefiremarshal on his inspection of the house afterthe fire, to evidence of defendant

### Is indebtedness for construction materials

### , and to the procuring of fireinsurance on the house. Heretofore, we have held the photographs properly admissible. We have also held that evidence relating to defendant's indebtedness and the fire insurance on his house was properly admitted to show motive for the crime charged. These holdings render the present contention of defendant to be without foundation. The tenth and final issue for review concerns the witness, Jack Parker. Defendant contends the district court comitted prejudicial error in declaring Parker an adverse witness, inrequiring the defendant to accept Parker as a defense witness, and inopenly quarrelling with defendant's counsel inthe presence of thejury over this issue. It

### must be noted that defendant's attorney was also the attorney for witness Parker. Defense counsel drew the mortgage inquestion and advised witness Parker relative to his privilege against self-incrimination atthe trial. Prior to the trial the statesecured an order from the court requiring Parker to submit to a deposition. The record shows that Parker was very hesitant to testify and the statehad considerable difficulty in getting him to answer questions relative to the circumstances leading to the $40,000 note and mortgage and the consideration for itsexecution. Parker was subpoenaed as a witness for the stateatthe trial. When he was called by the stateto the witness stand atthe trial, the transcript indicates he was called as an adverse witness. Prior to the state'sexarnination, Parker was advised by defense counsel to refuse to answer any questions on the grounds of possible self-incrimination. He claimed this right several times during the course of the state's examination. When the stateconcluded itsexamination and witness Parker was turned

over to defense counsel for questioning, the fol1 owing colloquy occurred

### between defense counsel and the court: "DIRECTEXAMINATION "ByMr. Morris: "Q. 

### Mr. Parker,prior to the time this fireoccurred,you camedown to seeme about the insurance on themortgage? A. Yes. 

### "Q. And we found out thatMurdock had been charged with a crime. By theway, may the record show that the fact I honor this examination with

cross-examination

## ,doesn

### 'tmean I accept i

### t, Your Honor. "THECOURT: What is that? "MR. MORRIS: Object to it,but 

### I will still cross-examine because 

### I have the right to and I think a duty to. "THE COURT: I don't follow you. This isyourwitness. "MR. MORRIS: He is notmy witness. The state called him. "THECOURT: As an adverse witness. You saidyou represented him. Nowyou are on direct examination at this time. You don't cross-examine crossexamination. "MR. MORRIS: May we have an offer of proof, Your Honor, in this matter? "THE COURT: Yes,youmay later on. 

### "MR. MORRIS: Before 

### I cross-examine? "THE COURT: Beforeyou cross-examine? "MR. MORRIS: Yes, "THE COURT: You can

### 't cross-examine cross-examination. "MR. MORRIS: I want tomake an offer of proof. "THECOURT: You may make one at recess. Ifyou examine this witness, it's direct examination onyour part. 

### I have established that he is an adversewitness to the State,and ifyou examine him now, it's direct examination and you are bound by his answers. "MR. MORRIS: May the record showan objection to that ruling? "THECOURT: Sudy.I'On this basis defendant claims prejudicial error. We consider this entirematter a tempest in a teapot. Assuming arguendo that the adverse witness rule isnot applicable to criminal proceedings, only harmless error not affecting the substantial rights of the defendant is involved; such harmless error isnot grounds for reversal. Chapman 

### v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L ed 2d 705; State



### v. Langan, 151 Mont. 558, 445 P.2d 565. Witness Parker was not examined by the stateby use of leading questions. Whether the statewas bound by his answers isirrelevant here, because the witness gave no testimony unfavorable to the state. Defendant was denied the right of cross-examination of this witness under the adverse witness rule and was compClled by the ruling of the trial judge to examine the witness on direct examination as his own witness. But what prejudice resulted 

### todefendant? We find none under the circumstances disclosed here. Defendant was accorded the full right of examination of this witness unfettered by the confines of the state's examination. Defendant's examination of the witness in thismanner was broader than his examination rights under cross-examination towhich he contends he was entitled. During this examination the defendant brought out circumstances attending the execution of the note and mortgage which, if believed by the jury, were favorable 

### todefendant. Nor do we see how the colloquy between the court and counsel over the adverse witness rule and defendant's rights of examination of witness Parker prejudiced defendant inthe eyes of thejury. In any event a colloquy cannot be carried on by the trial judge alone, and where defendant's counsel participates therein he can hardly be said to be an innocent bystander. We fail to see 

### how defendant has a meritorious cause for complaint 

### on this

score. The judgment of the districtcourt is affirmed.Associate Justice



## \ Associate Justices