(dissenting). I cannot agree with my brother HOLLEY that the judgment of conviction should1 be affirmed. For numerous prejudicial errors- in this record, this case should be reversed.
While the defendant had an interest in the barn that burned *19on Labor Day, 1919, there was not the slightest evidence that the barn was burned) iby any act or procurement of the defendant. There is not a syllable of testimony tending to show any willful act of any person criminally responsible for the burning of the barn or any evidence, even remotely, to exclude the presumption of loss by natural or accidental causes.
Lisa Cramm and. Louis Cromm testified about the burning of the bam on Labor Day, 19191, over defendant’s objection.
J. L. Stowe was permitted to give an opinion on the reasonable value of the barn, and he was permitted, over defendant’s objection; to give the price he had paid for this property and the price that he had sold it. This evidence was not connected with the building now1 in suit.
. It must be shown that the setting of the fire was a felonious act to overcome the presumption of innocence. There is no justification in permitting 'proof of the value of the barn; such evidence Was wholly collateral. It is self-evident that this proof of the burning of the barn and the value of the barn was a prejudicial error.
In an indictment for arson, after the corpus delicti is established and it is shown that the building was burned with criminal intent, then it is admissible to introduce a motive as a circumstance tending to connect the defendant with the commission of the offense. If the defendant could not be convicted for arson on this evidence, he could! not be convicted for making a false proof or in denying his knowledge of the arson. There is absolutely no evidence in the record to establish the corpus delicti and without such proof under the decision of this court, a conviction cannot be sustained.
“In a prosecution for the crime of arson, the corpus delicti— that is, that the crime charged has been committed by someone— consists of two elements: (1 )■ That the building in question burned; and (2) that it burned as the result of the willful and criminal act of some person. ‘It is now universally recognized * * * that proof of the single fact that a building has been burned' does not show the ■ corpus delicti on arson, but it must also appear that the burning was by a willful act of some person criminally responsible, and not as the result of natural or accidental causes, for when,- a house burned, and nothing appears but that *20fact, the law rather implies that the fire was the result of accident or some providential cause other than of criminal design.’ ” State v. Elwell, 105 Or. 282, 209 Pac. 616, 2 R. C. L. 514.
“The presumption is that a fire resulted from natural or accidental causes; also the defendant is presumed to be innocent.”
Kinsey v. State, 12 Ga. App. 422, 77 S. E. 369. It is said, where the evidence does not overcome the legal presumption that the burning was accidental, a conviction of arson was unauthorized.
Moon v. State, 12 Ga. App. 614, 77 S. E. 1088. Mere proof that-a barn was consumed by fire does not tend to show that the fire was a felonious one, presumption being that it was an accident. Proof of corpus delicti in arson requires proof not only that the building burned, 'but that the fire originated through a criminal agency.
“The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the act itself was done, and-second, that it was done by the person charged and none other: In other words, proof of corpus delicti, and of the. identity of the prisoner.” 2. R. C. L. 514; Spears v. State, 92 Miss. 166, 46 South. 166; 16 L. R. A. (N. S.) 285; State v. Pienick, 46 Wash. 523, 90 Pac. 645, 11 L. R. A. (N.S.) 987, 13 Ann. Cas. 800; Bines v. State, 118 Ga. 320, 45 S. E. 376; People v. Simons, 25 Cal. App. 723, 145 Pac. 145; State v. Wilkins, 158 N. C. 603, 73 S. E. 992; State v. Hauser (S. D.), 191 N. W. 446; Overstreet v. State, 46 Ala. 30; Lane v. Commonwealth, 134 Ky. 519, 121 S. W. 486; State v. Cristani, 192 Iowa 615, 185 N. W. 111.
In People v. Henry, 129 Mich. 100; 88 N. W. 77, a case where defendant was charged with breaking and entering a saloon with the intention of committing larceny. Defense was that he was too intoxicated to form an intent to commit larceny. The people were permitted to> show his conviction, of larceny on two former occasions^ It was held that such testimony was improperly received; Mr. Justice Grant, who. wrote for the court, saying:
“A felonious intent is an essential ingredient in the crime of larceny. It is, in fact, the gist of the'offense. This'is a clear case of introducing evidence of one crime to prove the commission of another. It is within the rule of People v. Jacks, 76 Mich. *21218, 42 N. W. 1134; Lightfoot v. People, 16 Mich. 507; People v. Lonsdale, 122 Mich. 388, 81 N. W. 277; State v. Johnson, 38 La. Ann. 686; People v. Barnes, 48 Cal. 551; People v. Ascher, 126 Mich. 637, 86 N. W. 140.”
Again in People v. Burke, 157 Mich. 108, 121 N. W. 282, a bank robbery case; it was there said by Mr. Justice O'strander, speaking for the court:
“It was * * * an attempt to prove a distinct and remote crime, in no way related to the one for which respondents were being tried. If the record of the former conviction had been produced, it should not have been admitted in evidence. In numerous cases this court has 'had occasion to state and apply what is sometimes said to be an exception to the general rule that proof of the commission of other crimes may 'not be given upon the trial of one accused of crime. They are for the most part cases where the act of the accused was, in itself, innocent, involving no' necessary implication of crime, or cases where the circumstances permitted the inference of accident, mistake, or inadvertence to be drawn.”
In the case at bar, no pretext was made that the burning of the 'building was caused by incendiary acts.
The evidence as to the burning of the 'building is' consistent with the innocence of the defendant, and nobody has been charged with unlawful act of burning the building.
It appears that the building burned to the ground and was a total loss. There was nothing left of the structure except the basement excavation and a part of the stone foundation below the ground. This constitutes a total loss under section 9201, Rev. Code 1919. Springfield Fire Insurance Co. v. Homewood, 32 Okl. 521, 122 Pac. 196; Palitine Insurance Co. v. Weiss, 109 Ky. 464, 59 S. W. 509.
This policy was written September 6>, 1919. Ohe Floyd Nash was then living in the building with his family. It appears- that he continued to live in the building until the 17th day of October, 1919. When the Nash family moved out Henderson moved in. His wife stayed there with him one night but he stayed'in the building every night from October 17th until the night before the fire. He had! no other home or place to live, this was 'his residence, he slept there and got part of his meals there, and had all *22of his furniture there. This testimony is undisputed in this record.
This policy contained a vacancy permit, viz.: “Permission is hereby granted for the within described premises to be and remain vacant for a period not exceeding sixty days at any one timethe term! “vacant” ¡being construed to- mean an empty building, devoid of personal habitation!; “or to' be and remain unoccupied for a period not exceeding six months at any one time;” the term “unoccupied” being construed to mean a dwelling that is entirely furnished but with habitant temporarily absent.
Under these definitions in the policy and the undisputed evidence, it should be held that the premises were occupied at the date of the fire. This issue should have been withdrawn from the jury.
It appears from' the evidence of the contractors, that the foundation was constructed of -Sioux Falls granite; that the halls were in good general repair. Some of the rooms had cement floors. All the woodwork and the stairway, which wlas about 7 feet wide, the plastering on the second floor and the doors, were in good condition. The rooms were all in good general repair. There was some plastering off in two- rooms on the third floor, not very much.
W. A. Snitkey", general contractor, valued the property in the neighborhood of $30,000 or perhaps more. George Hughill, expert ■ contractor, gave testimony that the value would be from! $32,000 to $315,000. Albert MicWayne testified that it would cost between $28,000 and $30,000. Robert Perkins testified that it would cost $30,000 according to his best judgment to replace the building. Joseph Schwartz testified the value of the building was $27,000 or $28,000. R. C. Hilchert, contractor, testified that he would figure the building to be worth about $32,000 where there was a total loss.
Under the Valued Policy Law (Rev. Code 1919, § 9201) the replacement value is fixed as the amount of insurance. Hence in case of any dispute upon the question of value, it should be the replacement value. -Still the court permitted the prosecution to offer evidence as to the “cash value,” the “market value,” “the reasonable value,” “the reasonable market value.”
This evidence was all received over defendant’s objection, *23and constituted an error, as such different values would necessarily -mislead the jury. Values were agreed upon by the companies and defendant. The defendant certainly had the right to rely upon these values when they had been deliberately agreed upon.
When the state failed to prove the criminal act of burning, the measure of damages became the amount fixed in the policy; especially is this 'true.¡when no premium had been returned. It was the right of these companies .to cancel these policies at any time, which they failed to do. Or if a fraud had been perpetrated, they could have rescinded the contract of insurance.. The court should have specifically instructed the jury in reference to replacement values. The failure to' do so constitutes a prejudicial error.
Under the Valued! Policy Law the amount-fixed in the policy is not subject to -dispute. The sum fixed established the true amount that the company must pay.
In this court (Lawver v. Globe Insurance Co., 25 S. D. 549, 127 N. W. 615) it is said:
“Under this provision of the statutory policy not o-nly is the true value of the insured real property conclusively fixed, but by it the absolute liability of the insurer to pay a fixed sum- is also conclusively established. The true value of the property destroyed and the amount of the loss and measure o-f damages being conclusively fixed- by the law and the contract evidence as to- the value of the-property destroyed or as toi the loss sustained or; the measure of damages becomes wholly immaterial and' incompetent for any purpose.” Home Insurance Co. v. Weed, 55 Neb. 146, 75 N. W. 539; Barnard v. People’s Fire Insurance Co., 66 N. H. 401, 29 Atl. 1033; Reilly v. Franklin Insurance Co., 43 Wis. 449, 28 Am. Rep. 552; Oklahoma Farmers’ Mutual Indemnity Ass’n v. McCorkle, 21 Okl. 606, 97 Pac. 270; Springfield Fire & Marine Insurance Co. v. Homewood, 32 Okl. 521, 122 Pac. 196, 39 L. R. A. (N. S.) 1182.
Section 9201 of the Rev. ¡Code 1919 states:
“Whenever * * * the property insured shall be wholly destroyed, without criminal fault on the part- of the insured or his assigns, the amount of insurance written in such policy shall -be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages.”
*24“There will be no end to prosecutions * * * if every man is to be indicted because he places a higher valuation on his •property than some neighbor may put on it.” State v. Fannon, 158 Mo. 149, 59 S. W. 75.
W. L. 'Sloan, chief of police, testified:
“I know, about the fire that occurred on Labor Day, 1919»; of the A1 Fresco fire; of a house on Fifth and Spring streets; of a fire on North Phillips Avenue. I made an investigation relative to the bam that burned on Labor Day, as to how much insurance was carried. There was $8,500 worth of insurance. In regard to the fire at -Fifth and 'Spring streets in one of Egan’s houses, I found some polishing materials and oil and cloths by the side of the .stairway, like they had been wiping up. The fire was put out. It started in the -stairway and burned out to the back door. My conclusion was that the fire was from spontaneous combustion from the paint and oils. The fire on Phillips avenue was caused by a chimney from an adjoining building.”
Mattie Lorenzen arid John Lorenzen, on the evening before the fire, between 8 and 9 o’clock, saw an automobile that stopped by their house one quarter of a mile away from the A1 Fresco building, and! remain there for one-half hour and then it went back towards town. They saw no one near the car or no one leave it. .
Charles Davis, on the 24th -day of November, saw three team's with hayracks and farm wagons drive towards the park.
Ed. Martly was permitted' to1 testify that Egan told him that he (Egan) had his 'barn well insured. It is difficult to comprehend the relevancy of this class of testimony.
It is claimed1 that defendant asked Henderson if he -could go-out and stay all night with the boys at the farm near Colton (the farm -sold to Egan,), but it appears that the man living there was making complaint about repairs, which was the cause of his visit.
Henderson, speaking of Egan, said: “If'he (Egan) does not pay me, I will send him to the penitentiary.” -Still, on cross-examination, he testified that Egan never made any statement that made him suspicious.- He also testified that defendant told him' that if the maple flooring was put on the inside he (Egan-) would not be- able to -recover the - insurance. - The maple flooring was, however, placed on the inside of the -building. Much is said about *25the hauling of straw to bank up the building, but it appears from the testimony that the straw to> bank up the building remained' undisturbed, and that the straw was old and well rotted straw. All of these incidents were wholly immaterial and should have been excluded from the jury. The jury should not have been pern mitted to speculate or conjecture .upon these collateral matters.
Egan made a trip on ¡Sunday to the dwelling, but in making this trip there is not even a suspicion in’ the conduct of the defendant. He went to see Hfenderson in order to get him to make an investigation of land in Brule county.
The record disclosed that both Henderson and Pierson were in the employment of the defendant; that, on Sunday morning before the fire, defendant received a decree in the McDonald case, which gave defendant only five days in which to pay -$3,000. This decree provided that unless the payment was made within five days that the execution would issue. The land consisted of one-half section in Brule county. Defendant had! not seen this land. It was important to determine whether to appeal from the decree or to pay the debt and keep the land. Hence the necessity of quick action. It was on the suggestion of Mr. Pierson that Hem derson should go and make the investigation and report to defendant by telegram.' There is no suspicious 'circumstance in the going of Henderson on 'Sunday to inspect this land1. On the receipt of the telegram', the appeal was taken. And here an innocent act is sought to be changed: into a criminal one.
It appears that Egan did not know that it was necessary for him to go to Sioux 'City as a witness until he received a telegram from his attorneys that he must come. It is not disputed that Egan was in Sioux 'City at the time of the fire. • .
The nine policies were all issued under the Valued Policy ¡Eaw and nearly all contained the clause, “other concurrent insurance herewith permitted.” The insurance companies thus invited the defendant to take out all the insurance that he wanted, without limit. The defendant wanted enough insurance to- cover the value of his1 building, because it was outside of the fire limits. ■There was no fraud in the issuing of the policies because the, companies agreed upon the values.-
The-court submitted three issues to the jury, viz.: First, did the defendant burn or was he instrumental in burning the build'*26ing? Second, /was the 'building occupied or not? Third, did the defendant misrepresent the value of the building?
Upon the first issue there is not any evidence to the effect that the defendant set fire to the property or caused it to be destroyed. As to the second, the evidence wjas undisputed. It is clear that the building was occupied. The third issue relates to the value of the propeíty insured. Here the parties had agreed upon tire value, and the jury hadi no right to speculate upon the issue unless the state had proved willful destruction of the property. In the State v. Korth, 39 S. D. 365, 164 N. W. 913, this court reversed the trial court because “the evidence was insufficient to connect the [defendant] with the commission of the offense charged.” The proof submitted was “uncertain, weak, and unsatisfactory to such an extent that it should not be held sufficient to produce an abiding conviction of guilt beyond all reasonable doubt of such * * * offense.”
The defendant stated in his proof of loss, that the cause of the fire was unknown. The defendant was upon the witness stand and, after a vigorous cross-examination, the cause of the fire is still unknown.
The prosecution proved the burning of the building and then asked the jury to speculate and surmise that the defendant was connected with the loss of the building, in place of assuming that the fire was accidental and occurred', without criminal fault.
Section 2555, subd. 2, C. L. 1919, allow® a new trial on the misconduct of the jury when, the verdict is obtained by chance, as follows:
“By a resort to the determination of chance, such misconduct may be proved by, the affidavit'of any one of the jurors.”
It appears- that two jurors, Walters and Aasen, were close and intimate friends. After the submission of the case, these two jurors voted “not guilty.” They believed that the defendant was not guilty of the crime charged against him-. The case was given to the jury on Saturday afternoon. It appears that the jury first stood six for acquittal and six -for conviction. After tire jury had spent considerable time in the discussion of the case, these two jurors made up their minds that the jury would never agree. They were anxious,- to get out. They discussed between themselves what was best to do under the circumstances.. Aasen said to Walters: *27“What shall we do to get out of here?” Walters replied: “I’ll tell you, 'Eld, what let’s do. Let’s flip a penny or cut the cards and if you get the high card, we will vote ‘guilty,’ and- if I get the high card, we will vote ‘not guilty.’ ” These two jurors entered! into the washroom or toilet, a room 5x8 feet in size. Walters took a deck of 'cards from his pocket, shuffled them. Aasen cut first and turned up a queen1. Walters then cut and turned up a nine spot. Walters then said, “We must go back and vote ‘guilty,’ according to our agreement.” Aasen said, “Yes that is. the agreement but I hate to do it.” Walters said, “So do I but. we have agreed to do it; let’s stay by it.” When the next ballot was taken, they voted “guilty.”
The jury reached a decision about xo or 10:30 on ¡Saturday evening, April 15th. Immediately thereafter the said Walters went home. He was then making his home with W. H. Walters and Ella J. Walters, his father and mother. In the presence of his mother, father, and sister, Walters said he felt badly 'because he had been a party to the conviction of Egan; that Egan had not had a fair trial by the jury; that some of the jurors were biased and prejudiced against him. Being asked in what particulars the case was not properly decided, he replied that he and Aasen had voted “not guilty” and had agreed between themselves that they would shuffle the cards and cut them and thus decide which way they should vote; that the verdict was based1 upon the luck of the high card going to Aasen instead of Walters. The parents then advised the son to go early on the next morning to Mr. Egan and tell him the truth of what took place. The juror Aasen gave testimony of the same general character.
It appears on Sunday ¡míoming, after the separation of the jury, that Aasen narrated the facts- about the cutting of the cards to William Mbnarity, who corroborated the affidavit made by Aasen.
While it is true that a number of the jurors stated: that they did not see any cutting of the cards nor hear any discussion between these two jurors on the subject of deciding how they should vote, this negative testimony has no probative weight and does not dispute the testimony of these two jurors.
I fail to find any testimony whatever to contradict the statements given by these jurors. They were in no way impeached. *28Afterwards they iwere arrestédi and a charge of perjury lodged against them, but this charge was dismissed after investigation. I think it must 'be assumed that these two: jurors were telling a true story. It is not probable that Walters, on leaving the jury room, would' produce from his pocket the deck of cards that settled Egaii’s fate and deliberately lie to his mother, father, and sister. I think tírese affidavits .clearly establish the fact that this verdict was reached by the cutting of the cards.
The testimony given by the two jurors is corroborated, so far as Walters is concerned, by the mother, father, and sister and, so far as Aasen is concerned, by Monarity, Louis H. Smith, and John D. .Lynch. These affidavits clearly establish the fact that the verdict was reached by the cutting of the cards. These two jurors through thoughtlessness had engaged in a miserable trick to evade their sworn duty. When the fact of a' chance verdict is established, the cherished right of the jury trial should not be debauched. The state owes a duty to every citizen to see that he has a fair and impartial trial. The guilt or innocence of a defendant should not be established by the chance of cutting a queen of nine spot.
Note. — -Reported in 195 N. W. 642. See, Headnote (1), American Key-Numbered Digest, Criminal law, Key-No. 301, 1149, 16 C. J. J. Secs. 728, 731, 17 C. J. Sec. 3575; (2) Indictment and information, Key-No. .147, 31 C. J. Secs. 405, 400, 404; (3) Criminal law, Key-No. 1167(1), 17 ,C. J. Secs. 3662, 3618; (4) Insurance, Ke'y-No. 31, False pretenses, 25 C. J. Sec. 55; (5) Indictment and information, Key-No. 71, 31 C. J. Secs. 170, 180; (6) Insurance, Key-No. 31, False pretenses, 25 C. J.'Sec. 85; (7) Criminal Law, Key-No. 444, 16 C. J. Sec. 1524; (8) Insurance, Key-No. 31, False pretenses, 25; C. J. Sec. 85; (9) Insurance, Key-No. 31, False pretenses, 25 C. J. Sec. 101; (10). Criminal law, Key-No. 444, 16 C. J. Sec. 1524; (11) Insurance, Key-No. 31, False pretenses, 25 C. J. Secs. 88, 89; (12) Insurance, Key-No. 31, False pretenses, 25 C. J. Secs. 88, 89; (13) Criminal law, Key-No. 371(1), 16 C. J. Secs. 1162, 1136; (14) Criminal law, Key-No. 1038(1), 16 C: J. Sec. 2514, 17 C. J. Secs. 3555, 3556, 3335; (15) Criminal law, Key-No. 720%, 17 C. J. 3638; (16) Criminal law, Key-No. 730(9), 17 C. J. Sec. 3638, 16 C. J. Sec. 2271; (17) Criminal law, Key-No. 957(2), 16 C. J. Sec. 2755.
On liability of insurance company in case of intentional destruction of property by insured, see note in 17 L. R. A. (N. S.) 189.
On effect of false swearing in proofs of loss, see note in 32 L. R. A. (N. S.) 453.
*29On effect of overvaluation- in proof of los3 of property insured as fraud avoiding fire insurance policy, see note in 20 A. L. R. 1164.
On Rev. Code 1919, Sec. 4771, see annotations, Kerr’s Cyc. Codes, 1920, Pen. Code, Sec. 1004.
On Rev. Code 1919, Sec. 4271, see annotations Kerr’s Cyc. Codes, 1920, Pen. Code, Sec. 549.