(specially concurring). I concur in the result.
Other serious questions appear in this case which should be answered to protect the State and defendants in the future. This case is one of first impression in New Mexico.
(A) Arson.
Section 40A-17-5 (A), N.M.S.A.19S3 (2nd Repl.Vol. 6) reads in part as follows:
Arson consists of maliciously or willfully starting a fire . . . with the purpose of destroying or damaging any property, whether the person’s own or another’s, to collect insurance for such loss.
(1) Whoever commits arson when the value of the thing destroyed or damaged is one hundred dollars ($100) or less is guilty of a misdemeanor.
First, there is no evidence of the value of the property to be destroyed or damaged. Count I of the indictment charged defendant and Mike Henry with a conspiracy “for the purpose of committing a felony, to wit: Arson.” The trial court instructed the jury that “Arson is a felony when the value of the thing destroyed or damaged is over $100.00”; that “Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without the State of New Mexico.” [Emphasis added]. There was no proof of a felony. Defendant was entitled to a directed verdict on Count I.
Second, the State had the duty to prove that defendant’s purpose was to collect fire insurance for the loss. Mike Henry told one of the police officers that “. he’s insured against burglaries and against anything of a burglar’s nature . . . .” A second police officer testified that Henry said that if the burglar alarm “wasn’t operating at the time the business was burglarized, why then his insurance wouldn’t pay for any theft or damage to the building;” that payment to the officers for burning everything inside the place “would depend on when the insurance company paid him for the theft and vandalism.”
There was no evidence that Mike Henry had fire insurance. He could not “collect insurance for the loss.”
The State had the burden of discovering what insurance Henry had on his place of business. The State did not indict Henry because he was to be a State’s witness, against Ross. Henry never appeared as a witness. He was “long gone.” The State never investigated what, if any, insurance Henry carried on his business.
It is obvious that defendant could not be guilty of a conspiracy to commit the felony of arson. Hall v. State, 90 Fla. 719, 107 So. 246 (1925) ; State v. Dworkin, 307 Mo. 487, 271 S.W. 477 (1925); Commonwealth v. Cooper, 264 Mass. 368, 162 N.E. 729 (1928). A directed verdict should have been granted.
(B) Damaging Insured Property.
Section 40A-15-2, N.M.S.A.1953 (2nd Repl.Vol. 6) reads as follows:
Damaging insured property consists of intentionally damaging property which is insured with intent to defraud the insurance company into paying himself or another for such damage.
Penal statutes must be strictly construed in favor of the accused. State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969). We will not limit or change the wording in order to construe it against the accused. State v. Collins, 80 N.M. 499, 458 P.2d 225 (1969).
This statute means that a defendant must intentionally damage property to defraud “the insurance company” into paying for such damage. The State must prove beyond a reasonable doubt that defendant conspired with Henry to damage Henry’s property; that the property was insured; and the intent of the parties was to defraud “the insurance company.”
The evidence is clear that the conspiracy existed. Did the State prove beyond a reasonable doubt that the property was insured and that the intent of the parties was to defraud the insurance company ?
The testimony of two police officers revealed the following facts concerning insurance :
Insurance was mentioned on several occasions.
First, defendant met with the two officers to close a deal whereby the officers were to burn a building belonging to Mike Henry so he could collect insurance. At this meeting, defendant was asked when the officers would be paid “because the insurance company may balk at paying off,” and defendant said he was going to have to talk this over with Henry because Henry had an insurance policy that would cover this type of thing.
The next meeting, at which Henry was also present, Henry was asked about his insurance policy and Henry said he was insured against burglaries and against anything of a burglar’s nature; that he would be insured and covered; that he did not have the cash to pay the officers and had to wait until the insurance company settled his claim; that he guaranteed payment in two weeks in case the insurance company stalled him off. Henry had a stipulation with the insurance company that Henry had to have a burglar alarm installed and operating. If it was not operating at the time of the burglary, the insurance would not pay for any theft or damage to the building.
At the next meeting, defendant was not present. Henry told the police officers there was a change in plans. Henry did not want the building burned down because the insurance company would take too long to pay him the money or the insurance company would actually find out what happened and not pay any money at all. Henry would take out all the new equipment of any value and not replace it. The officers were to completely destroy anything inside, and what was not destroyed too well, the fire would finish it off.
The best evidence rule in New Mexico is Rule 1002 of the New Mexico Rules of Evidence. Section 20-4 — 1002, N.M.S.A. 1953 (Repl.Vol. 4, 1973 Supp.). It reads as follows:
To prove the content of a writing the original writing is required, except as otherwise provided in these rules or by statute.
The secondary evidence rule is Rule 1004. It provides that the original is not required, and other evidence of the contents of a writing is admissible if (1) the originals are lost or destroyed; (2) the originals are not obtainable; (3) the original is in possession of the opponent; or (4) the writing is not closely related to a controlling issue.
The secondary evidence rule is not 'applicable because no predicate was laid by the State to warrant its use.
In order to establish a violation of the statute, the State must prove the contents of an insurance policy to determine whether the Henry property was insured and the name of the insurance company to be defrauded.
An insurance policy is the best evidence of what it contains. It is the best evidence of the fact that particular property is insured. Unless its absence is satisfactorily explained, parol or secondary evidence is inadmissible. Barnes v. State, 130 Tex. Cr.R. 547, 95 S.W.2d 112 (1936); Posey v. State, 132 Tex.Cr.R. 268, 103 S.W.2d 763 (1937); State v. Elgin, 391 S.W.2d 341 (Mo.1965); Salistean v. State, 115 Neb. 838, 215 N.W. 107 (1927); 53 A.L.R. 1057; 22A C.J.S. Criminal Law § 705.
Defendant objected to any testimony about insurance because it was hearsay and because the only person that could possibly testify as to the existence of insurance would be Mike Henry himself. The objection was overruled. This objection was not sufficient. It did not raise the question of the insurance policy being the best evidence.
The acts and declarations of co-conspirators, in the absence of their partners, are admissible in evidence because this is the means of showing the conspiracy. However, oral proof of the fact that the property was insured is reversible error where proper objection is made that the policies themselves were the best evidence. Posey v. State, supra; Barnes v. State, supra. “It is to be presumed that if timely objection[s] had been made the trial court would have required either the policies to have been offered or sufficient foundation laid for the introduction of secondary evidence. Such evidence having been admitted without objection, it will be considered as competent proof that the property was insured and the insurance was in force at the time of the fire.” Salistean v. State, supra.
The defendant did not object because the insurance policy was the best evidence. He did not preserve the error for review. State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963).
(C) Special vs. General Statute.
We should decide whether arson is a special statute and whether damaging insured property is a general statute. If arson is a special statute, conviction under the general statute was improper. State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App. 1970).
Section 40A-15-2, Damaging Insured Property, was enacted in 1963 under the Revised Criminal Code. Laws 1963, ch. 303, § 15-2.
Section 40A-17-5, Arson and Negligent Arson, was enacted by Laws 1970, ch. 39, § 1. The title of the act is: “AN ACT relating to crimes; defining the crimes of arson and negligent arson.” It repealed the previous section on arson under the Revised Criminal Code. Laws 1963, ch. 303, § 17-2. The new section enacted in 1970 is a part of the Revised Criminal Code.
The question is: Would the general statute, “Damaging insured property”, standing alone, include the same matter as the special act, “Arson”, and conflict with it, or can both statutes be read together and harmonized?
Both statutes do not condemn the same offense. “Damaging insured property” applies only where the accused, “with intent to defraud the insurance company”, damages the property. The “arson” statute applies only where the accused seeks “to collect insurance for such loss.” Both statutes can be read together and harmonized.