With President Judge KELLER and Judge RHODES (the dissenting judges in the Superior Court), I am of opinion that the trial court erred in not sustaining defendants' demurrer to the Commonwealth's evidence.
There is no difference in view regarding the applicable principle of law. I am, however, convinced that the evidence was not of sufficient character and quality to overcome the presumption of innocence and sustain a conviction by a jury.
Convictions upon circumstantial evidence have always received the most careful judicial scrutiny. Prior to the decision ofCommonwealth v. Marino, 142 Pa. Super. 327, 16 A.2d 314, it had been consistently held in criminal cases that circumstantial evidence sufficient for a conviction must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed. See De Reeder et al. v.Travelers Insurance Co., 329 Pa. 328, 198 A. 45, an opinion by the present Chief Justice. President Judge KELLER inCommonwealth v. Marino, supra, at page 333, said that such a rule placed too heavy a burden upon the Commonwealth to prove guilt beyond any doubt rather than beyond a reasonable doubt. He suggested that the appropriate *Page 580 rule should be (page 334): "When a crime charged is sought to be sustained wholly by circumstantial evidence the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and should be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt." We subsequently adopted this principle of law: see Commonwealth v. Libonati, 346 Pa. 504, 508,31 A.2d 95; Commonwealth v. Holt, 350 Pa. 375, 387.
Tested by the rule, I am convinced that the wholly circumstantial evidence in the case now before us is not of such volume and quality as to overcome the presumption of innocence and to establish the accused's guilt beyond a reasonable doubt.
I concede that proof by circumstantial evidence may be established by building up inference upon inference: see Wigmore on Evidence, 3rd Edition, Volume I, Section 41; alsoNeely et al. v. Insurance Company, 322 Pa. 417, 185 A. 784. However, such reasonable inference of guilt must be based upon substance, and upon facts and conditions directly proved. They may not rest solely upon mere conjecture, surmise or guess. Opportunity is not evidence and conjecture and suspicion do not take the place of testimony: Rosenthal's Estate, 339 Pa. 488,496, 15 A.2d 370, quoted with approval in White et al. v.Chester Municipal Authority, 349 Pa. 118, 121, 36 A.2d 455.
The trial court received evidence of a large number of wholly negative circumstances. Each circumstance in itself did not suggest the slightest inference of guilt. They indicated neither guilt nor innocence. Each amounted to but a cipher. The trial court permitted the jury to add such ciphers. Its verdict demonstrated a mathematical phenomenon, viz: that a number of ciphers added together amounted to more than a cipher.
The indictments were for "arson and the burning of a dwelling house and for aiding, counselling and procuring *Page 581 the burning of property with intent to defraud an insurer". The Commonwealth never established the cause of the fire. There was no evidence that any inflammable material was found in the building. Two burned cans were found in the ruins but there was no testimony offered as to their contents. The fact of incendiary burning is inferred from the testimony of certain witnesses that the flames had a peculiar color and that the burning was unusually rapid. The Commonwealth's witnesses, however, gave conflicting testimony as to the initial appearance of the burning building, some stating that the flames burst from the windows, another that they burst from the roof, and still another that there was no flame. Some of the persons present at the fire testified that they saw nothing unusual in the character or progress of the flames. The testimony of the Commonwealth's witnesses that there was an explosion was very vague and was refuted by many of defendants' witnesses. In any event, the Commonwealth did not even attempt to establish the cause of the explosion if there was one. The mere fact that this building burned to the ground is not in itself proof of incendiarism. It was a frame dwelling, the fire company (depleted in numbers because of the absence of members at the parade in the neighboring town) did not immediately respond, and when it did arrive at the scene was unable to pump water on the building.
The Commonwealth endeavored to raise the inference of incendiary fire by showing that there was an odor of gasoline on the white shoes of the female defendant which shoes she removed as she was being taken to the hospital. This evidence was based on the testimony of witnesses unfriendly to the defendants and upon the analysis made by a chemist who examined the shoes several days after the fire. The evidence was uncontradicted, however, that the shoes had been thrown upon the floor of a garage on the night of the fire and had remained there for some time. There was no testimony to *Page 582 exclude the possibility that the shoes, being white, had been cleaned with some fluid having a petroleum base. The nurses who received the female defendant at the hospital testified that they did not notice any odor of gasoline on her clothes. There was testimony, however, that the clothing of the defendant, Montonaro, smelled of gasoline and that some of the burns on the clothing were "flash" burns. While it is possible toinfer from these facts that the defendant had been in contact with gasoline, it is not a necessary inference that this was gasoline used at the scene of the fire. The testimony showed that, upon his return from the mines, this defendant had put on clothes which he was accustomed to wear while working with automobiles and automobile parts in his junk yard, and there was evidence that he had been so engaged just before he went to the home of the other defendants. It is entirely reasonable, therefore, to assume that the gasoline was upon his clothes before he entered the house which was destroyed by fire.
Another fact relied upon by the Commonwealth to establish the incendiary nature of the fire was that the children of the husband and wife defendants were absent from their home at the time of the fire. The two eldest boys were with their father at the firemen's parade at Punxsutawney, a perfectly natural place for them to be. One child was staying with a relative in another town where she had been ever since the close of school almost a month earlier. The two other children were at their grandmother's home. There is no evidence that the children were purposely taken from the home or that they were instructed not to return to the home. This testimony in itself is purely negative.
The Commonwealth's witness testified that the female defendant and Montonaro made conflicting statements after the fire concerning their presence in the home and their movements upon the discovery of the flames. These statements were denied by the defendants upon the witness stand and it was proved that both defendants were *Page 583 suffering from most serious and painful burns at the time they were alleged to have spoken with the police officers. The police detective who spoke to them stated that he was sure their condition permitted such interviews because otherwise the hospital authorities would not have allowed him to see the patients. It is to be noted, however, that this officer was a director of the hospital and appears to have had great freedom in interrogating patients and nurses.
There was no direct testimony to connect the defendant, James De Petro, with the burning of his house. At the time he was miles away in Punxsutawney. There is no proof that he was seen at any time conspiring with the other defendants or that he made any statements indicative of an intention to burn his dwelling. The Commonwealth endeavored, again by inference, to connect him with the sabotage of the fire truck which remained in Barnesville on the night of the fire. This it attempted to establish by showing that he was a member of the voluntary fire company, that most of the firemen had keys to the place where the engines were kept and that he knew the construction of such engines. It was also testified that he made frequent inquiries concerning the truck which was to be taken to the parade at Punxsutawney. From this the jury was expected to infer that he had a key to the fire house, but the Commonwealth did not prove that he had such a key. It was to be inferred that heused the key to obtain access to the engine, but it was not proved that he was seen entering or leaving the building at any time when such a thing might have been done without detection. It was to be inferred further that it was he who inserted lamp wicks in the suction pump, but there was no evidence that he ever had such wicks in his possession or that any member of his family had purchased such wicks. It might as well be inferred that some other member of the fire company, having a grudge against the defendants, inserted the lamp wicks in the suction pump. If De Petro had a key, which was not *Page 584 shown, there were 24 others with similar opportunity to enter the fire house. There was also testimony that the more experienced firemen were in Punxsutawney at the parade and that the end of the suction pump lying in the stream did not have attached to it the screen which would prevent the hose from drawing up foreign matter. It was shown that the stream was full of refuse. The testimony, therefore, did not exclude the possibility that the lamp wicks were drawn into the hose from the shallow water. The questions asked by De Petro concerning the equipment to be taken to the parade and the route to be followed were perfectly natural questions for a person to ask who intended, as De Petro did, to participate in the parade and to drive his own car to Punxsutawney.
Finally, with regard to the motive, the Commonwealth showed that one of the defendants, De Petro, was in debt. This was all. Obviously, every person in debt cannot be regarded as a potential arsonist. There was no proof that defendants would profit by the fire in such a manner as to justify the risk of loss of life which, the Commonwealth alleges, was taken by two of them. The fact that De Petro's wife and brother-in-law were so seriously burned as to require long hospitalization is in itself evidence persuasive of their innocence. The husband and wife defendants took pride in their home. They had recently improved it. Much of the furniture was new. There is considerable testimony showing the care with which they kept their home. Upon its destruction they would be obliged to find a new residence and start afresh. What had they to gain by the fire? The only testimony as to the value of the house put it at $1,400. Some of the insurance on the property had been placed upon it by the seller and by mortgagees. Certainly, the Commonwealth failed to show that the defendants would have made any substantial gain by the fire sufficient to justify the destruction of their home, the risk of their lives and the danger of causing destruction to the home of De Petro's father which adjoined their own dwelling. *Page 585
The conviction was based on pure surmise and suspicion. The circumstances proved were not sufficient to exclude reasonable doubt as to the guilt of the accused. Against the presumption of innocence, which is the foundation of our American criminal jurisprudence, such flimsy circumstantial evidence should not be considered sufficient.
For these reasons, I would reverse and discharge the defendants.