Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Defendant was convicted of arson, and appeals.
In his first point on the appeal he charges the trial court with error for having admitted into evidence two exhibits and certain testimony as to a chemical analysis. We shall have to look at these matters separately.
The first of those exhibits is a one-gallon can containing some kerosene, found in the rear yard of the premises involved in the fire. Defendant contends the can is unconnected with either the defendant or the crime.
There was some connection between the can and the defendant. He was in charge of the premises and was there (we may say) frequently, and indeed at times spoke of himself as the owner, although title stood in the names of his wife and mother. To that extent he may be said to have had possession or control of the can. State v. Martinek , 12 N.J. Super. 320, 323 (App. Div. 1951); State v. Orecchio , 27 N.J. Super. 484, 496 (App. Div. 1953), affirmed 16 N.J. 125, 138 (1954). More than that, he admitted to a detective "that he went in the backyard and he took some kerosene and mixed it with" oil for a purpose hereinafter stated. There was no indication of any kerosene in the backyard, other than in this can.
The connection between the can and the crime was more tenuous. There were a number of exhibits in the case, including materials on the second floor of the partially burned building, amply demonstrative of an incendiary design on the part of some one: streamers of cheesecloth running from room to room; also a section of a sofa, two mops and some newspapers -- all soaked with a very inflammable mixture of gasoline and oil, which had been taken (according to the State's proofs) from a 55-gallon drum and another exhibit,
a 5-gallon drum, located in the building. But there was no kerosene in those materials.
However, there was proof that kerosene from the backyard, mixed with contents of these drums and other oil, was used to oil the floor of the so-called sewing machine room in the building; and further that kerosene acts as a wick for the ignition of a non-combustible material. Whether the oiling of the floor three weeks before the fire could be said to have been a part of any incendiary purpose here, was so undeveloped a theory in this thoroughly litigated case, as to case much doubt on its validity.
Our cases authorize the admission into evidence of things in an accused's possession or under his control if they reasonably tend (Miller v. Trans Oil Co. , 33 N.J. Super. 53, 57 (App. Div. 1954)) to establish preparation or design on his part to commit the crime; and it matters not that in the perpetration of the crime, they were not actually put to use. State v. Rusnak , 108 N.J.L. 84, 89 (E. & A. 1931); State v. Cerciello , 86 N.J.L. 309, 312 (E. & A. 1914), the revolver; State v. Grillo , 11 N.J. 173, 182 (1952); 2 Wigmore, Evidence (3 rd ed.), 33. Proof of a design on the part of some one to do an act is some proof that he performed the act. 1 Wigmore, id. , 534.
Furthermore, things in his possession or under his control before or after the crime are admissible in evidence if the proof reasonably tends to show that they were used in the commission of the act with which he is charged. His possession or control of them furnishes some indication that he was the doer of the act. 1 Wigmore, id. , 600; State v. Regna , 108 N.J.L. 232, 234 (Sup. Ct. 1931); State v. Martinek , 12 N.J. Super. 320, 323 (App. Div. 1951), supra.
There is very little, if anything, in this case reasonably tending to show that use was made of the can either in preparation for the fire or in perpetration of the offense.
But we need not pursue our examination of these and other principles (in general, see 22 C.J.S., Criminal Law , §§ 708-715, pp. 1201-1220); ...