Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant Gerald Schenk appeals from a conviction, following a jury trial, on an indictment for arson which charged that on August 27, 1965 he did "willfully, maliciously and feloniously burn the dwelling house of William Roberts * * * contrary to the provisions of N.J.S. 2A:89-1."
The State contended at the trial that shortly after 1 A.M. on the aforesaid date defendant set fire to the dwelling house at 507 Cherry Street in Vineland occupied by William Roberts, his wife Irene, their child Tina, and Mrs. Roberts' child Wayne. Defendant was the father of Wayne. The State's theory was that after the Roberts family had retired for the night defendant cut an opening in the screen of a living room window and set the fire by either tossing or placing pieces of lighted newspaper in the room. The motive for the crime was alleged to be defendant's bitterness caused by Mrs. Roberts' refusal to let him see his child.
Mrs. Roberts testified that at about 1 A.M. on August 27 she heard a crashing noise downstairs in the house. She awakened her husband and when they reached the lower floor they saw a fire burning in the area of the living room window. Roberts quickly extinguished it with glasses of water and telephoned the police.
Mrs. Roberts testified that she looked out of the window and saw defendant going towards his car which was parked on the street. She screamed to her husband, "It was Jerry." Roberts testified that he saw the car being driven away and that shortly thereafter, he again saw it being driven past the house. He again telephoned the police giving them defendant's name and a description of the car. Roberts' testimony concerning the observation of the defendant's car was corroborated by Anthony Mennone, a next door neighbor.
Police Officer Pitts testified that at 1:25 A.M., he responded to a radio call to go to the Roberts' home because someone had thrown a firebomb into the house. While driving there he saw defendant's car speeding east on Cherry Street. He
took up pursuit and stopped the car. He thereafter turned over the custody of defendant to another police officer who had responded to his call for assistance. Pitts said he found a torn newspaper in defendant's car, and that thereafter he drove to the Roberts' house to investigate the damage caused by the fire. He said pieces of a burned newspaper were found in the debris.
Defendant denied that he committed the crime charged in the indictment. He testified that he had received a telephone call from Mrs. Roberts during the day inviting him to call at her house after 10 P.M. that evening to see his son after her husband had left for work. He said he went there at about 11 P.M. but was refused admittance by Mrs. Roberts who said that her husband was out but was expected to return in a short time. He said he then drove away and a short time later was stopped and arrested by the police. Defendant's testimony was corroborated by Judith Taylor, a friend of his, who said that at defendant's request she had followed him in her car to the Roberts' house that evening, had observed him talking to Mrs. Roberts, and thereafter saw him drive away.
Mrs. Roberts denied that she had telephoned defendant as he alleged and both she and her husband denied that defendant had called at their home that evening to see his son.
Defendant first contends that the State failed to prove that the dwelling house had been burned -- an essential element required to justify a conviction of arson under N.J.S. 2A:89-1. He alleges that at best the evidence showed only a burning of personal property which is not proscribed under the statute on which the indictment was based.
N.J.S. 2A:89-1 in pertinent part defines arson as follows:
"Any person who willfully or maliciously burns or consents to the burning of a dwelling house * * * by means whereof a dwelling house shall be ...