¶1The state's petition for rehearing is denied. In and of itself, it is quite a reargument and has been so considered.
¶2It does require some correction of our statement of facts, which is now made. To state that the chemical analysis of the burlap sack "disclosed the presence of a relatively minute quantity of what may have been kerosene" is inaccurate. That analysis disclosed one-third of a fluid ounce (taken from one-fourth of the liquid content of the sack) of what may be assumed to have been kerosene. The expert evidence for the state is unequivocal that it was kerosene. For the defense there was testimony that it might have been furnace oil or something other than kerosene.
¶3Only one of three firemen testified that while the fire was burning he detected any kerosene odor. The defense would discount this testimony in that some two months before the trial he had stated that he did not care to say that he knew exactly what odor he detected upon entering the building. But, when called as a witness, he had made up his mind "that it was kerosene" which he smelled.
¶4We have stated that the sack was found "some distance, two or three feet," from the bottom of the partition where the fire had been hottest. It would have been more accurate to say, in summarizing testimony, that the bag was at least a foot and a half or two feet away from the hole in the partition.
¶5The remains of the burlap sack are an exhibit which we have examined. Strange that if it had been purposely saturated with kerosene and had been ignited as kindling that it was not wholly consumed. It was far from destroyed. A relatively large part of its fabric remains untouched by actual burning. *123
¶6With all these corrections of fact and upon reconsideration of the whole case, we are confirmed in the opinion that as matter of law the record does not justify the conclusion beyond reasonable doubt that defendant was guilty of arson.