Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALEXANDER J. NAPOLI, Judge, presiding.
Judgment of conviction affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
In a jury trial the defendant was found guilty of arson and was sentenced to a term of one to five years in the penitentiary. He contends (1) that the State failed to prove the necessary intent; (2) that the court erred in allowing a witness to answer improper hypothetical questions; and (3) that it erred in refusing to give an instruction tendered by defendant with respect to flight. The facts follow.
Defendant was charged with setting fire to the apartment of Clara Martin with whom he had lived for six months prior to the event in question. The fire started shortly after 4:00 a.m. on September 1, 1963, and did extensive damage to Mrs. Martin's apartment and to other apartments in the building. Defendant was arrested on May 5, 1964. At that time he gave the police a signed statement in which he admitted starting a fire in the closet of Mrs. Martin's bedroom on the night in question, but denied that it was done intentionally. In the statement he said he was using his cigarette lighter to search for money in the closet when a neoprene clothes bag caught fire, that he stamped on the bag to put out the flames and shut the closet door to prevent the spread of the fire. He said the fire was extinguished when he left the premises. The written statement was admitted in evidence during the course of his cross-examination.
Mrs. Martin testified that she and the defendant had quarreled some days before the fire and that defendant had moved to a hotel, but that on the night in question he returned to her apartment to pick up certain belongings he had left there. Knowing that he was coming, she placed the items outside the door because she did not want him to come in. Defendant insisted on being admitted and kicked in a door panel, and she then allowed him to enter because she wanted to avoid further disturbance of her neighbors. Inside the apartment, defendant became violent and hit and kicked her and she ran to a neighbor's apartment, returning about ten minutes later to find the apartment on fire. She further testified that some months earlier, defendant in a burst of anger had threatened to start a fire and had started to pile up papers in a closet preliminary to taking such action when he was restrained by a third person. She also stated that a few days before the fire, the defendant had severed her telephone wires.
George Healy of the Chicago Fire Department testified on behalf of the State that the fire had started in the bedroom area of the apartment, but that the exact place of its origin could not be pinpointed because of "the intense burning throughout the entire bedroom." He said that in his opinion had the fire been started in the closet, it could not have spread as it did unless the closet door had been open.
Joseph Bergan of the Chicago Police Department testified that he investigated the fire and learned from Mrs. Martin that she suspected the defendant; that she gave him defendant's description and information concerning his usual whereabouts, but had no known address for him and hence he (Bergan) and his partner were unable to locate the defendant in the neighborhood to which they were directed. He said a stop order for defendant was placed about a week or two after the fire. On cross-examination he testified that he had not looked for defendant at the two specific addresses which the defendant later testified were his permanent residences from the date of the fire until his arrest.
Defendant testified on his own behalf and in substance repeated the narration he had given the police with respect to the fire and the events preceding it. He further testified that he learned of the fire about two days after it occurred, at which time he had heard that the police were looking for him and that he then went to the Racine Avenue Police Station, where he was told he was not wanted as a suspect for any offense. He further testified that he had been working in the city and was available for most of the time between the date of the fire and his arrest.
Defendant's first contention is that there was no showing that he intended to start a fire. The evidence establishes his presence on the premises immediately before the fire, his previous threat to burn the apartment and his violent encounter with Mrs. Martin that night. This evidence, although circumstantial, is very persuasive and was adequate proof of criminal intent.
Defendant's second point is that the hypothetical questions asked of the State's expert witness, Healy, were based on a fact not in evidence, that is, that the door to the closet was open. The questions propounded to the witness were as follows:
"Q. Mr. or Fireman Healy, if a fire had been started in the closet and the door of that closet had been closed would that fire be able to spread through that apartment within a few minutes?
Mr. Friedman: Object. Just a minute.
The Court: It may stand."
"Q. Based on your examination of this apartment, based on your experience with the fire department investigation unit, do you have an opinion as to whether or not the ...