majority">West, J.,

delivered the opinion of the court.

This is a writ of error to a judgment sentencing Max Heller and Eli Heller to serve a term of two years each in the penitentiary, for willfully burning a storehouse and stock of merchandise and fixtures, with intent to injure the insurer.

The indictment charges that Eli Heller burned the property and that Max Heller hired, procured, aided and abetted him to commit the felony.

In March, 1919, Max Heller began a mercantile business (dry goods, shoes and clothing) in a brick building in Waynesboro, Virginia, where he remained until January, 1922, when his lease expired. The lease was renewed for four years, and, his landlord having agreed to make certain repairs, Heller moved his stock of goods to Harrisonburg, Virginia, and opened for business. There was adequate fire protection in both Waynesboro and Harrisonburg.

March 1, 1922, he rented a frame building under a monthly lease, in Elkton, Virginia, where there was no fire protection, and moved his goods and fixtures from Harrisonburg to Elkton.

*784About eight o’clock, on the night of April 11, 1922, this building was discovered on fire. Citizens of the town who forced the front door open found the fire in the closet in the northwest end of the smoke filled room. Efforts to save the building appearing useless, they began to remove the merchandise and saved two-thirds of the stock.

Max Heller, owner of the store, had gone to Waynesboro the day before, and did not return until eleven o’clock the night of the fire. The only clerk in the store, except a Miss Frasier, was Eli Heller, the other defendant, a young man twenty years old and a nephew of Max Heller.

On the day of the fire, Eli Heller went to supper just before six o’clock and returned about six-thirty, when Miss Frasier left for the night. At that time the store was in its usual condition, and when Eli Heller closed, about ten minutes before the fire was discovered, he left no lights burning, no fire in the stove and locked the front door and securely fastened the back door. The only window, except the stationary window in front and a back window with bars across it, was in the closet, and was also protected with bars.

Twenty-five or thirty minutes before the fire Eli Heller was alone in the store, walking towards the back of the building with a lamp in his hands. After closing, he went to the hotel, where he was seated on the porch when he first heard that there was a fire in town.

Strange, to say the least, he expressed the belief that the fire was in their store, and left the hotel at once. Later, however, other guests of the hotel met him in a drug store some distance from the scene of the fire, inquiring for the Western Union telegraph office, and he was not seen at the fire until the building was half burned and much of the merchandise saved. His ap*785parent indifference as to the goods saved and remark that “this stuff is useless to me; I do not want it” attracted attention, and were in striking harmony with his noticeable nervousness during the early afternoon.

Max Heller did not reach Elkton until 10:44 the night of the fire. Shortly afterwards he and Eli Heller approached the policemen who were guarding the goods saved, and in reply to a question concerning the safety of his merchandise, replied: “To hell with the goods, it is no good to me, let them go to it.” Later he remarked to another merchant, “It is a good thing you got your automobile out,” to which the party replied, “Yes, sir; it would have been an awful good thing if you fellows hadn’t set this building afire and burnt us all up and put us in this kind.of condition, too. The best thing you can do is to say little and be getting down the road.” Max Heller made no reply, and neither of them took into his possession or undertook in any way to care for the merchandise. Both left town the next morning and did not return until the insurance adjuster came.

The fire originated in the closet which could be entered only from the inside of the store, and when the fire was discovered the closet door was closed. Mrs. Fiery, who lived about 200 feet east of the Heller building, was attracted by the odor of burning coal oil and burning pine coming from that direction, and shortly after-wards' saw a light on the east side of the building. The closet was sealed with thin boards and was cleaned out when Heller took charge of the building, but after the fire, immediately under the place where the closet was located, there were found in the debris a five gallon oil can and a one gallon oil can.

Max Heller carried no insurance on his stock while in Harrisonburg, but insured it for $6,000.00 in the store in Elkton on March 25, 1922. Afterwards the policies *786were endorsed transferring $400.00 of the insurance to store fixtures. At the time this insurance was taken he valued his stock at $8,000.00, notwithstanding his offer made shortly before to sell it for $4,000.00, and on January 13, 1922, he made oath to the commissioner of the revenue, when applying for a merchant’s license, that the value of goods on hand and probable purchases to May, 1922, amounted to only $2,855.00. Furthermore, the evidence shows that practically all the stock was brought from Harrisonburg to Elkton in one truck load, and that several witnesses regarded his stock as shoddy, and valued it at $1,800.00 to $3,000.00. When the merchandise was removed from the store during the fire, many boxes were found empty, and out of forty or fifty boxes which were thrown out of the window there was not in them over one dozen pairs of shoes. Much space-in the store was taken up with empty boxes, including many boxes on shelf space. A short time before the fire-both the defendants were seen at different times, in the early morning and at night time, removing large packages from the store in an automobile.

Max Heller testified that the day before the fire he left Elkton and went to Waynesboro, and that on the night of the fire he came to Grottoes, Virginia, unexpectedly, and that Eli had no knowledge he was at Grottoes. Eli Heller testified that when Max left Elkton he said he was going to Waynesboro, and when the fire occurred he thought his uncle was at Waynesboro, and had no idea he was at Grottoes, and that he rushed to the telegraph office to wire him. But the telegraph operator testified, that Eli Heller told him he wanted to send a telegram to his uncle, Max Heller, at Grottoes.

Viewing the evidence from the standpoint of the Commonwealth, we find the foregoing among the material facts in the ease. In some respects, these facts were-*787controverted by the evidence introduced on behalf of the defendants, but it was for the jury to say to which witnesses they would give credence.

The defendants rely on three assignments of error.

The first assignment is the refusal of the court to set aside the verdict as contrary to the evidence.

While the evidence is largely circumstantial, it is sufficient to warrant the jury in finding that Eli Heller set fire to the property with the intent charged in the indictment, and that Max Heller procured, aided and abetted in the act. Both Eli and Max Heller hauled goods from the store, in the day and in the night time, shortly before the fire (each knew about the empty boxes in the shelf space and elsewhere), evidently preparing to burn the property and make a false claim against the insurance companies. Eli was only a clerk for his uncle and had no interest in the property which he set on fire. Upon the evidence, the conclusion is irresistible that he committed the deed at the suggestion of and for the benefit of his uncle, and with the intent on the part of both of them to collect the full amount of the insurance and thereby injure the insurer. There is ample direct and circumstantial evidence showing a common plan carried out by one of the defendants and yet the will and deed of the other. Rasnake & Bumgardner v. Commonwealth, 135 Va. 677, 115 S. E. 543.

We find nothing in the case of Jones v. Commonwealth, 103 Va. 1012, 49 S. E. 663, relied on by the defendants, to sustain their contention that the verdict is without evidence to support it. Unlike the instant ■case, in that ease there was no direct testimony tending to prove the corpus delicti; and admitting the criminal origin of the fire, there was no proof that the defendant was the criminal agent, except that he had the opportunity to commit the crime and cherished ill feelings, *788and had made threats, against the owner of the buildings which were burned, and these alone were held insufficient to warrant a conviction.

The second assignment of error is the action of the court in giving the following instruction:

“The court instructs the jury that if they believe-from the evidence beyond a reasonable doubt that Eli Heller set fire to the building occupied by Max Heller as-a store, as charged in the indictment, and that Max Heller, though not at Elkton at the time of the fire, planned, counseled or encouraged the firing of the building, then the said Max Heller is guilty as an accessory-before the fact, as charged in the indictment, and liable-to the same punishment as is prescribed by law for the principal actor.”

It is contended, (a) that this instruction is without evidence to support it; and (b) that there is nothing in. the evidence which tends to connect Max Heller with the firing of the building.

Our discussion of the evidence in connection with the first assignment of error is á sufficient answer to grounds (a) and (b) of this assignment; and there is no-merit in the further contention that the instruction is-erroneous because it did not tell the jury that Max Heller must know that the budding was insured, and that-the planning and encouragement of the principal was-done with intent to injure the insurer. It was not necessary that Max Heller should know that the building-was insured. The question of insurance on the building was immaterial since, if the defendants burned the-stock of goods, with intent to injure the insurer, they were guilty whether the buildings were insured or not.. He knew that the goods were insured and if burned, would injure the insurer, and his only motive in encouraging, aiding and abetting Eli to burn them was to collect the insurance and thereby injure the insurer.

*789The third and last assignment of error is the action of the court in refusing to give instructions "B,” “D” and “E,” offered by the defendants.

The court did not err in refusing to give instruction "B.” "Beyond a reasonable doubt” and "to a moral certainty” are synonymous terms, and either might be properly used alone in an instruction. But when both expressions. are used in the samé instruction, the jury, who are not expected to know the technical meaning of such phrases, would naturally believe that something more than proof beyond a reasonable doubt was necessary before they could convict. Besides, the court had already instructed the jury upon matters involved in this instruction when it gave instruction No. 3, in these words:

"The court instructs' the jury that when a fire occurs the prima facie or first blush presumption is that it was caused by accident rather than by a criminal agency; and in order to the conviction of one accused of criminal guilt in causing the fire, the burden rests upon the Commonwealth to prove such guilt beyond a reasonable doubt.”

This instruction tells the jury that the burden rests upon the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt, meaning thereby, necessarily, his guilt of every material charge contained in the indictment, and the jury is conclusively presumed to have so understood the instruction.

Instruction "D” undertakes to present the defendant’s theory to the jury on a partial view of the evidence. The Commonwealth not only proved the defendants “had an opportunity to commit the crime and had an interest to burn the property destroyed,” but other facts which tended to show that Eli Heller actually set fire to the building and that Max Heller pro*790cured, encouraged, aided and abetted him in the commission of the crime. Besides, on account of the phraseology of the latter half of the instruction, it is erroneous for the reasons given in discussing instruction “B” supra.

Instruction “E” contains a correct statement of the law, and if no other instruction had been given upon the subject of reasonable doubt ought to have been granted. But, instructions 1, 2, 3 and 6, already given by the court, fully and sufficiently covered the principles of law laid down in instruction “E,” and for that reason the court properly refused it.

A careful review of the record fails to disclose any error for which the judgment complained of should be reversed.

Affirmed.

Citation profile

Relationships

How this case has been treated — in progress