On error to the Union Quarter Sessions Court.
For the plaintiff in error, Harry L. Weinberger.
For the state, Abe J. David, prosecutor of the pleas, and Thomas F. Hueston, assistant prosecutor.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The indictment was in three counts, all based on section 124 of the Crimes act (Comp. Stat., p. 1786) as amended by Pamph. L. 1919, p. 257. Cum. Supp. Comp. Stat. 1924, p. 859. Three defendants were charged jointly: Max L. Simon, John Chirichello and Vito Ruzzito. The last was dead at the time of the trial, and Chirichello was severed and testified for the state. The trial proceeded as against Simon, who was acquitted by direction of the court without objection by the prosecutor, on the first count, and convicted on the second and third counts. He brings this writ of error.
The statute above cited, so far as relevant, reads as follows: "Any person who shall willfully and maliciously burn, or cause to be burned, or aid, counsel, procure or consent to the burning of any * * * buildings, * * * or any shop, storehouse, warehouse, malt-house, mill, or other building, whether it be his own or that of another * * * shall be guilty of a high misdemeanor."
The first count charged the willful and malicious burning of a printing shop and building occupied by Simon as lessee and owned by the Central Railroad Company. The second charged that the three defendants caused to be burned a building of the Central Railroad Company leased by Simon. The third count charged that they did willfully and maliciously aid and counsel and procure and consent to the burning of the same building leased by Simon. All three counts laid October 17th, 1931, as the date. The first is not before us, but will be discussed incidentally hereafter. As to the other two, the evidence tended to show that while the fire actually occurred October 17th, Simon had been planning to burn the building, where he had a newspaper plant, as early as July, and conferred with Chirichello, who was to set the fire, as late as "a couple of days after Columbus Day," or October
14th. The indictment was found on October 10th, 1933, and hence just within the two years. As to October 14th, the evidence was sufficient to present to the jury the issue of "causing" and "aiding, counselling, procuring and consenting" to a burning thereafter. The trial judge charged that the precise date was not material, and that it was unnecessary to proving the causing, or the counseling, &c., as of October 17th if the actual time was within the two years limitation. This is challenged in several aspects, and will be dealt with in its proper place.
The case comes up by the usual double track route, and the assignments of error and specifications for reversal are in number 56 and 59, respectively, the extra three specifications going to weight of evidence. The argument is arranged under six, or perhaps seven, general points. The last made in the brief may well be considered first, viz., refusal to quash the indictment. It is argued that the counts are duplicitous in that a printing shop is not a building. This seems frivolous. "Shops" are classified as buildings in the very language of the statute. Again, that count 1 speaks of "occupation" and the other two of "leasing." It should be enough to say that even conceding inconsistency, each count stands by itself, and in any event count 1 is out of the case. The argument is wholly unsubstantial. The same grounds were urged on motion to direct acquittal, and are equally untenable for the purpose of that motion. We see nothing whatever in the point.
The next point to be considered is the first one made in the ninety-seven page brief for plaintiff in error, viz., that the trial court erred in refusing to grant a continuance because of the absence of Mr. Weinberger, defendant's counsel, at a criminal trial in the United States District Court. Plaintiff in error, conceding that the matter of continuance is in general discretionary, nevertheless argues that the court abused that discretion to the prejudice of the defendant Simon. The clerk's minutes show that the arraignment was on October 20th, 1933, and trial ...