For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
Defendant was granted certification, 29 N.J. 510 (1959), to review an affirmance by the Appellate Division of a County Court's conviction and sentence of defendant for the crime of burning a building other than a dwelling house. N.J.S. 2 A:89-2.
Defendant contends that the trial court erred in permitting the State to put in evidence certain allegedly irrelevant testimony, in allowing the State to attack defendant's credibility before defendant took the stand, and in admitting a certain exhibit. The State's case rested entirely on circumstantial evidence.
Defendant operated a dress shop owned by a corporation in which she was a stockholder. On Saturday, December 17, 1955 at about 9:52 P.M. the Jersey City fire department responded to an alarm of a fire in the dress shop and arrived there at about 9:57 P.M. After the fire was put out, fire department officers inspected the premises to try to ascertain the cause. When the fire department officials left the premises, a police guard was placed at the store to prevent any one from entering.
Shortly thereafter defendant arrived in the company of two policemen. She was questioned there and later at a police station. She stated that a girl employee had left the shop at about 8:45 P.M., that at the time she was about to close up a woman customer walked in, used the telephone, made a purchase, and left, that when the customer left, defendant put the lights out and closed the shop. It was then about 9:30 P.M.
At the trial, in answer to a question as to where the fire started, the deputy fire chief stated that he found indications
of several starts of the fire, one, in the back of the store, another, in the right front side of the store, and a third, in the left front side. He also stated that he saw an intense glow from flames in three different spots in the shop but noted no link between any of the areas of the fires. The fire chief also testified. He stated that he was of the opinion that there had been five separate fires in the store and that there was no communication between the fires in the front of the store and those in the rear; that when he and the police inspected the premises two days after the fire, they found two pieces of towel underneath a counter on the right side of the store saturated "with some kind of -- what we figure was lighting fluid." The towels were admitted over objection.
Defendant's main contention is that the trial court committed reversible error in admitting into evidence, over objection, a statement by defendant, marked Exhibit S-12. This statement, taken down by a police officer and signed by defendant in the early hours of December 18, was a detailed account of the questions of a detective regarding the fire and defendant's answers. The responses were in many respects contradictory to defendant's testimony at trial. The statement also contained the following:
"Ques. Did you ever have a fire in this store before?
Ans. Yes, last November, 1954.
Ques. Were you insured then?
Ans. Yes, I was insured by the same agent for twenty thousand dollars.
Ques. How much money did you get as a loss at that fire?
Ans. Five thousand dollars.
Ques. [Did] the same insurance co. give you another policy?
Ans. Yes, for twelve thousand dollars."
On direct examination of the State's witnesses no mention was made of the statement of December 18. The first reference to it was by defense counsel during the cross-examination of a fire battalion chief when he asked whether the ...