No, 12182 

IN THE 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 first degree arson following a jury trial 

in the district court of Lewis & Clark County, Hon. Victor H. Fall, district 

judge. Defendant was subsequently sentenced to ten years in the Montana 

State Prison and now appeals from the judgment of conviction. 

During the month of June 1971, defendant Edward R. Murdock started 

to build a house on a tract of land in the Helena valley known as the Sewel 1 

tracts. By about August 1 the 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 fire insurance on 

his house. They declined to sell him fire insurance at that 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 Mihel ish 

of Schroeder Brothers appraised the house at $25,000 and suggested defendant 

purchase a fire insurance policy in this amount. Defendant, however, insisted 

on a $35,000 policy which Schroeder Brothers wrote and defendant paid for. 

During defendant's second visit to Schroeder Brothers he was asked 

if there was a mortgage on the house, and he answered in the 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 it was. 

A fire occurred on August 19 about 6:30 a.m. when defendant was not 

at home. The house was partially destroyed by fire. The West Valley Fire 

Department answered the fire alarm. 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 fire was of incendiary origin and that arson might be involved. 
They so advised the deputy state fire marshal, Gary Younker. 

Younker arrived at defendant'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 left after putting out the fire that morning. 

The investigation by the firemen and deputy state fire marshal 

Younker revealed that the fire started 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 to two plastic containers containing a flammable 

liquid. The thermostat on the furnace was set at approximately 75 degrees. 

When the thermostat clicked on the furnace ignited the rags which in turn 

started a blaze in the furnace room which started burning the ceil ing of the 

furnace room. Directly over the furnace room on the floor of the second 

story, various volatile items were stored--2 five gallon 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 in the house was soaked with 

oil. 

The firemen who fought the blaze noted the entire house was permeated 

with the odor of oil . They a1 so observed that a1 1 of the wall s were paneled 

and there was no insulation between the paneling and the outside walls. The 

firemen and deputy state fire marshal Younker concluded the fire was the 

result of arson. 

Mr. Val Ketchum, who helped install the furnace, indicated that three 

weeks after the furnace was instal l ed, defendant cal led him and to1 d him the 

oil lines were leaking. Ketchum checked and found no such leak. About a week 

later, defendant again called Ketchum and told him there was "oil running al 1 

over the place". Ketchum investigated and found two drops of oil on a fitting. At this time Ketchum completely checked the furnace and gave it the 
seal 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 start a fire such as the one involved here 

the fire 

would be if it were tampered with. He investigated the furnace afterland 

found rags jammed in the electrical system which damaged the safety mechanisms, which in turn resulted in a continual flow of oil. He concluded 

that the furnace had been manually tempered with causing it to work improperly. 

On the day after the fire, defendant appeared at Schroeder Brothers, 

inquired if the fire had been reported, and was taken to the insurance adjuster to discuss settlement. 

It later developed that a $40,000 mortgage had been recorded on the 

property running from defendant to S. F. Parker, the mortgagor. This mortgage was given to secure payment of a promissory note for $40,000 bearing 

6% interest and payable at the rate of $100 per month, including interest. 

Defendant was both the sole payee and the sole maker on the note. 

Defendant was charged with first degree arson by information filed 

directly in the district court. He entered a plea of "not guilty". Prior 

to trial he moved for the suppression of certain objects and things, allegedly taken from his house as a result of an unlawful search and seizure, and 

his motion was granted. 

Trial by jury commenced on November 8, 1971. Basically defendant's 

defense was (1) failure of the state to prove the essential elements of the 

crime beyond a reasonable doubt, and (2) a1 ibi. Defendant did not testify. 

During the course of trial the state was permitted to examine Jack 

Parker, husband of the alleged mortgagor S. F. Parker, as an adverse witness. Counsel for defendant also represented Parker at the 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 establ ish his defense of a1 i bi 

by testimony that he had gone to Harlowton, Montana, the day before the fire; 

stayed in a 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 at the motel. The 

proferred motel registration card was denied admission in evidence. 

Defendant was convicted of first degree arson as charged. He was sentenced to ten years imprisonment in the state prison where he now remains. 

Following denial of various post-trial motions by defendant, he now appeals 

from the judgment of conviction. 

Defendant assigns ten issues for review upon appeal which can be 

summarized in this manner: 

(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 at the trial to procure defendant's conviction? 

(3) Was evidence relating to insurance and credit improperly admitted at the 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 district court erroneously apply the law of arson 

in its pretrial, trial, and post-trial rulings? 

(10) Did the district court err in declaring witness Jack Parker 

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

a defense witness, and in openly quarrelling with defendant's counsel in the 

presence of the jury 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 

fire marshal Younker testified under oath in open court in support of the 

state's motion for leave to file the information direct. A complete transcript of his testimony is included in the 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 in the fire 

chamber of the furnace. (3) These rags ran down into two containers of 

fuel oil. (4) The thermostat on the furnace had been set for approximately 

75 degrees on a summer day in August. (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 the mortgage 

would cover only half the interest accrued during the first year and less 

than that in subsequent years. (9) The carpeting in the house was soaked 

with fuel oil. (10) There were substantial amounts of gas01 ine, propane, 

flammable paint and tarpaper l ocated directly above the furnace room. (1 1 ) 

The house was locked and defendant had the only keys. (12) The fire was the 

result of arson. (13) The fire was arranged to occur during the early morning 

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 first degree 
arson. See State v. Dunn, 155 Mont. 319, 472 P.2d 288; State v. Johnson, 

149 Mont. 173, 424 P.2d 728; State v. Peters, 146 Mont. 188, 405 P.2d 642; 

and section 95-1301, R.C.M. 1947, for the procedural and substantive requirements for establishing probable cause. 

the 

Onlsecond issue, defendant claims that Gary Younker, the deputy 

state fire marshal, entered defendant's house without a search warrant for 

the purpose of securing evidence to establish arson and while there he took 

pictures and removed certain items of physical evidence. Defendant contends 

the use of such evidence at the 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 . 

At the outset we observe that Montana statutes grant the deputy 

state fire marshal the right to do what he did here. He has the authority 

to inspect all fires. Section 82-1209, R.C.M. 1947. He is granted the power" 

to inspect and examine all buildings where a fire has 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 at the trial. The pictures he took and his testimony 

concerning his inspection and examination of the premises were admitted in 

evidence. Thus it is clear that the deputy state fire marshal 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, is whether this satisfied state and 

federal constitutional requirements of a search warrant and the prohibition 

against unreasonable searches and seizures. We hold that the better reasoning supports the view that what occurred in the instant case does not violate 

such constitutional requirements. 
Younker's testimony as to what he saw and discovered at the time 

of his inspection is admissible 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 to protect a person's right to privacy; it can hardly 

be contended that the right to privacy in a partially burned dwelling 

after a fire is paramount to the right of the public to a reasonable inspection of premises damaged by fire in the interests of pub1 ic safety and 

detection of incendiary fires. But perhaps the most compelling reason of 

all is simply that probable cause for the issuance of a search warrant 

could seldom be establ ished if access to f ire-damaged premises is denied 

without a search warrant. 

The third issue is whether evidence relating to insurance and credit 

was properly admitted. Testimony was permitted at the trial tending to prove 

that defendant was indebted to several businesses for construction materials 

and supplies, that liens had been filed, that fire insurance 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 like matters. 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 is a 

circumstance tending to establish guilt or 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 is whether defendant's motion for 

a directed verdict of acquittal at the 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 fire was of human incendiary origin; (2) that 

defendant set the fire, and (3) that defendant was actuated by malice. 
From what has been reviewed heretofore, it is beyond cavil that 

the fire was of human incendiary origin. It is equally clear there is 

substantial evidence that defendant caused the house to be burned. This 

is equivalent to setting the fire under Montana's first degree arson statute, 

section 94-502, R.C.M. 1947, which reads in pertinent part: 

"Any person who willfully, feloniously and maliciously 

sets fire to or burns or causes to be burned or who 

aids, counsels or procures the burning of any dwelling 

house * * * shall be guilty of arson in the first degree * * **'I 

To be sure the evidence is circumstantial, as in most arson cases. 

Nobody saw defendant start the fire or saw him prepare the premises for the 

fire that 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 fire by 

jamming the safety devices and electrical circuit in the furnace with oily 

rags leading to containers fill ed with volatile 1 iquids; gas01 ine, propane, 

and other flammable materials were placed on the floor directly above the 

furnace; the thermostat was set to fire the furnace in the early morning 

hours when the temperature on the inside of the house fell below 75 degrees; 

the rugs in the house were soaked with oil; the furnace had manually been 

tampered with to cause it to malfunction and emit a continuous flow of oil 

when it turned on; and defendant, to the exclusion of anyone else, had both 

the motive and opportunity to burn the house down. Such circumstantial evidence is sufficient to establish that defendant caused the fire. 

That defendant set the fire maliciously is also 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 imp1 ied ma1 ice beyond a reasonable doubt if be1 ieved by 

the jury, which precludes a directed verdict of an acquittal. 
This Court previously held in State v. Yoss, 146 Mont. 508, 514, 

"A directed verdict in a criminal case in this jurisdiction is given only where 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's denial of defendant's mot.ion for 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 evidence was 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 the motel registration or occupied the motel room. The 

registration contained 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 the motel registration was undoubtedly a business record, 

it did not tend to prove or disprove any issue in the case. The identity of 

defendant as the person who printed the name on the motel registration was 

never established. Even if it be assumed that defendant was that person, his 

physical presence there would not tend to establish an a1 ibi 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 defendant pertains to jury instructions. 
Neither his brief nor oral argument discloses either what instructions 

given were incorrect or what proposed instructions should have been given. 

K 

Under such circumstances any objection to jury instructions is waived, 

and there is nothing for us to decide. 

Defendant's seventh issue concerns whether there is a fatal variance 

between the crime charged and the proof at the trial. He argues that the 

crime charged is first degree arson and the proof at the trial was directed 

at proving the burning of a building to defraud an insurer, a separate and 

distinct crime. 

From what has been said heretofore, the elements of the crime of 

first degree arson were established as a jury question by the state's proof. 

The fact that the same proof might also tend to establish a different crime, 

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 first degree arson with which 

defendant was charged. As defendant was neither charged nor convicted of 

burning a building to defraud an insurer, no variance is established. 

Issue eight questions the sufficiency of the evidence to overcome the 

presumption of innocence with which defendant is clothed throughout the trial. 

The circumstantial evidence previously discussed and held to be sufficient to 

convict rebuts any such presumption of innocence that might otherwise prevai 1 . 

This contention is totally devoid of substance and merits no further discussion. 

Defendant's issue nine contends that the district court erroneously 

applied the law of arson in its rulings on pretrial, trial, and post-trial 

motions of defendant. If we properly understand defendant 's argument, he contends that the admission of inadmissible, irrelevant and prejudicial evidence 

unrelated to the elements of the crime of first degree arson prevented him 

from having a fair trial. Defendant refers to the admission of photographs 

taken by the deputy state fire marshal on his inspection of the house after 
the fire, to evidence of defendant Is indebtedness for construction materials , 

and to the procuring of fire insurance 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, in requiring the defendant to accept 

Parker as a defense witness, and in openly quarrelling with defendant's 

counsel in the presence of the jury over this issue. 

It must be noted that defendant's attorney was also the attorney for 

witness Parker. Defense counsel drew the mortgage in question and advised 

witness Parker relative to his privilege against self-incrimination at the 

trial. 

Prior to the trial the state secured an order from the court requiring Parker to submit to a deposition. The record shows that Parker was 

very hesitant to testify and the state had considerable difficulty in getting 

him to answer questions relative to the circumstances leading to the $40,000 

note and mortgage and the consideration for its execution. 

Parker was subpoenaed as a witness for the state at the trial. When 

he was called by the state to the witness stand at the trial, the transcript 

indicates he was called as an adverse witness. Prior to the state's exarnination, 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 state concluded its examination and witness Parker was turned 

over to defense counsel for questioning, the fol 1 owing coll oquy occurred 
between defense counsel and the court: 

"DIRECT EXAMINATION 

"By Mr. Morris: 

"Q. Mr. Parker, prior to the time this fire occurred, you came down 

to see me about the insurance on the mortgage? A. Yes. 

"Q. And we found out that Murdock had been charged with a crime. 

By the way, may the record show that the fact I honor this examination with 

c ross-examination , doesn ' t mean I accept i t, Your Honor. 

"THE COURT: 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 is your witness. 

"MR. MORRIS: He is not my witness. The state called him. 

"THE COURT: As an adverse witness. You said you represented him. 

Now you 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, you may later on. 

"MR. MORRIS: Before I cross-examine? 

"THE COURT: Before you cross-examine? 

"MR. MORRIS: Yes, 

"THE COURT: You can ' t cross-examine cross-examination. 

"MR. MORRIS: I want to make an offer of proof. 

"THE COURT: You may make one at recess. If you examine this witness, 

it's direct examination on your part. I have established that he is an 

adverse witness to the State, and if you examine him now, it's direct examination and you are bound by his answers. 

"MR. MORRIS: May the record show an objection to that rul ing? 

"THE COURT: Sudy. I' 
On this basis defendant claims prejudicial error. 

We consider this entire matter a tempest in a teapot. Assuming 

arguendo that the adverse witness rule is not applicable to criminal proceedings, only harmless error not affecting the substantial rights of the 

defendant is involved; such harmless error is not 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 state by use of leading questions. Whether the state was bound by his answers is irrelevant 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 rul ing of the trial 

judge to examine the witness on direct examination as his own witness. But 

what prejudice resulted to defendant? 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 this manner was broader than his examination rights under cross-examination to which 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 to defendant. 

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 in the eyes of the jury. 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 district court is affirmed. 
Associate Justice 

\ Associate Justices