The indictment charges the defendant with the crime of arson for having willfully and feloniously, in the night-time, set fire to and burned a certain building, described in the indictment, in which there were human beings, said building being alleged to have been then and there the property of one Frederick Brown.
The defendant interposed the plea of not guilty, and a further plea of once in jeopardy. After a full and fair trial the jury found against him on each of said pleas, and returned a verdict finding him guilty of arson in the first degree. Defendant made a motion for a new trial, which was denied. This appeal is from the judgment, and from the order denying his motion for a new trial.
It is not claimed that the evidence is insufficient to sustain the verdict; but certain alleged errors are assigned, the most plausible of which we will notice.
The first point urged is that the verdict in favor of the people upon the plea of once in jeopardy was rendered by means other than of a fair expression on the part of the jurors. The record shows that when the jury returned with its verdict of guilty it did not return a verdict upon the plea of once in jeopardy. Upon being informed by the judge of the court that such verdict had not been returned, the foreman replied that by reason of the verdict it had found the jury *Page 758 did not deem it necessary to pass upon the plea of "once in jeopardy." The judge thereupon informed the jury that it was necessary so to find, and the foreman then and there in open court, by consent of the jurors, signed a verdict finding in favor of the people on the issue of "once in jeopardy." The jury was thereupon polled by direction of the court. Each juror stated that the verdict as returned was his verdict. No objection was made to the jury returning the verdict in open court without retiring, and no exception was taken. No intimation was in any way given to the jury by the judge as to how it should find upon the issue of "once in jeopardy." It follows that no error could be predicated upon the above facts.
We have discussed the alleged error on its merits, although the record shows that the plea of "once in jeopardy" did not state the court in which the jeopardy is claimed to have attached, and fails entirely to show that any evidence was introduced by defendant in proof of the plea.
There was no error committed in overruling the defendant's objection to the question asked of the witness Orvis as to whether or not the defendant informed witness of a prior chattel mortgage at the time of the execution of the note and chattel mortgage to the witness. The witness did not answer the question, but replied that the mortgage itself so stated. Conceding that the subject matter of the chattel mortgage was immaterial, the defendant made no objection to the witness testifying as to a chattel mortgage being given to him, and the evidence shows nothing further on the subject. It would be highly technical and unreasonable for us to hold that the court erred in overruling an objection to a question as to an immaterial matter when the question was never answered.
The same may be said as to defendant's objection which was overruled to the question asked of the witness Rose, as to whether or not the defendant said anything to the witness the morning after the fire about paying witness some money. Although the objection was overruled, the witness did not answer it. In fact, the record does not show that the witness testified to anything or that he gave any testimony in any manner.
It is claimed that the court erred in refusing the following instruction asked by defendant: "The burden is upon the prosecution to prove every material element of the indictment, *Page 759 and the element of ownership of the building destroyed is a material element of the offense in this case, and if you are satisfied that there is no proof of the ownership of the building, alleged to have been burned by Mr. Laverty, by Mr. Frederick W. Brown on the day of the fire, he being alleged to have been such owner on the day of the fire, in the indictment in this case, then in that event it is your duty to find him not guilty." It was not necessary for the prosecution to prove the ownership as alleged in the indictment, provided the house was otherwise described sufficiently for purposes of identification, and otherwise identified by the evidence. (Pen. Code, secs. 447, 448, 449, 452; People v. Hanley, 100 Cal. 370, [34 P. 853]; People v. Shainwold, 51 Cal. 469.)
It is not necessary to notice other alleged errors.
The judgment and order are affirmed.
Kerrigan, J., and Hall, J., concurred.