SUGGESTIONS

FOR
ARSON INvESTIGATORS

NATIONAL BOARD OF FIRE UNDERWRITERS

85 John Street, New York 38, N. Y.
APRIL 15, 1953

FOREWORD
This pamphlet originally was prepared for the use of the
arson investigators in the employ of the National Board of
Fire U ndenvriters, an association of capital stock fire insurance companies established in 1866. Certain detailed instructions contained therein are applicable only to such investigators, but many of the general statements concerning the
conduct of investigations are applicable to any one doing this
sort of work. Therefore, in distributing this pamphlet to
persons interested in the subject of arson investigations, it
has been thought best to do so without eliminating those parts
which have special reference to the work of employes of the
National Board of Fire Underwriters.

GENERAL PRINCIPLES

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The National Board of Fire Underwriters, through its

Committee on Incendiarism and Arson, maintains a corps of
investigators for the purpose of aiding public authorities in
the investigation and prosecution of arson and kindred crimes.
These investigators are available to assist, when desired, any
public official in crimes of this character regardless of whether
there is insurance involved or, if involved, whether it is in
member companies or in non-Board companies. The interests
of the public require that fire losses be reduced to the minimum, and it is the Committee's belief that organized arson
and professional arsonists can and should be eliminated and
that the burning of property to defraud and for revenge by
individuals in isolated cases should be greatly reduced. In the
past few years great progress has been made in the elimination
of organized arson gangs and it is believed that any similar
organization attaining sufficient importance to attract attention
can and should be successfully prosecuted.
Since the primary interest of this Committee is the successful prosecution of persons responsible for incendiary fires or
frauds growing out of fires, it is its policy that any selfish
interest involving the avoiding of the payment of unjust claims
shall be subordinated to the interest of successful criminal
prosecution. The Committee desires that the interests of
criminal prosecution shall at all times be held superior to any
question of monetary loss by the insurance companies. ,
Your work as a member of this corps of investigators
must be governed by the following instructions. You should
study them thoroughly and from time to time review them
in order that your efforts and work may be for the best interests of those you are serving-the members of the National
Board and the public.

INSTRUCTIONS
1. Since the attitude with which one approaches his work
is highly important, you should realize that in addition to
earning your living in this work you are rendering a real
public service. Your work is important, dignified and offers
you the opportunity of contributing by your success not only
to the lessening of property loss by fire but to the saving of
innocent lives.
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2. With this attitude and the character of the work in

mind, you will realize that investigations must be made when
evidence can be had and that long hours and night work must
be accepted cheerfully and as a necessary incident to the work
to be done. The satisfaction that comes from work well done
in a great cause will more than compensate for the disadvantages of the occasional long hours and night work involved.
3. At all times conduct your investigations in a manner
that will reflect credit on the organization with which you are
connected. Courtesy, tact and fairness to all persons concerned, including suspects, are essential.
4. Always be prepared in a criminal case to go into court
with clean hands; that is, do not take advantage of any one
or do anything to which a defendant himself can take serious
exception. Under no circumstances should you participate in
any plan for the apprehension of arsonists, professional or
otherwise, which involves any suggestion of "frame-up" or
involves any inducement to crime.
Special agents are not case makers but truth seekers and
it is just as important to develop facts from witnesses which
do not tend to support a theory of guilt as those which do.
The real facts are what is desired.
5. Cultivate the good will of the local authorities and the
representatives of insurance companies with whom you come
in contact. Cooperate fully with prosecuting attorneys, state
police, fire marshals, police and fire departments. Remember
that the authorities are entitled to all of the credit for any
successful investigation.
6. Avoid, and if possible prevent, any publicity of a
personal character. If mention of your work is made, in so
far as you can, see to it that you are mentioned simply as a
special agent of the National Board of Fire Underwriters.
Any publicity, even then, should be subordinated to the publicity accorded the public officials who are handling the investigation or the presentation of the case. Do not give any
report of your activities to newspaper men.
7. Your personal conduct will be subjected to the closest
scrutiny and criticism by those under investigation and their

friends. Do nothing, therefore, that can be magnified or distorted so that it can be used to discredit your investigation.
8. Under no circumstances sign any complaint or make
any charges against any person for criminal conduct in relation to fires; any such action must be taken by the proper
public authorities.
Never under any circumstances represent yourself as an
official of any type, either local, state, or federal, and do nothing
to permit those with whom you deal to obtain an erroneous
idea as to your status. Agents work so closely with officials
that persons under investigation or interested in investigations
sometimes get the idea that the agent is himself an official.
This is not desirable, accomplishes no good purpose and may
be found embarrassing.
9. In so far as possible avoid saying anything concerning
persons under investigation or suspicion which might be made
the basis of a suit for slander or libel. It has occasionally
happened that suit has been instituted by some one apparently
involved in an arson case where claim has been made that
statements damaging to the reputation and standing ot the
person suing have been made by an agent of the National
Hoard but no such suit, so far, has ever resulted in more than
a nominal judgment. Care should be taken, however, to avoid
making to, or in the presence of, any third person any expression of opinion or statement of fact during the course of an
investigation concerning the guilt or innocence or connection
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of an individual with a fire.
10. Keep the office to which you are attached advised of
your whereabouts at all times, so that you can be reached
by mail or telegram without unnecessary delay.
11. Report promptly any and all requests for in vestigations which come to you locally, so that the supervisor of
your work may understand just what assignments are before
you, and companies interested may be informed.
12. Report when you have more work on hand than you
can handle in a reasonable time or when the work is unduly
light, so that in the former instance you can be given assistance, and in the latter you may be available for additional
assign men ts.

13. When an investigation is drawn out or delayed for any

reason and your report cannot be submitted promptly, submit
a preliminary report outlining the important facts developed.
14. When an investigation is made in conjunction with
authorities, either state or local, and any part of your report
is made up of information obtained by such authorities without your participation, signify therein that such was the case.
15. Report to the office to which you are attached any
special matter of importance that comes to your attention
which you think will be of interest to our company members
or public officials.
16. Keep a record of all cases in which you are interested
and check up from time to time with the authorities having
them in charge, so that action may be had promptly and cases
speedily brought to a conclusion. All steps in each case should
be reported promptly to the office to which you are attached.
17. Great care should be taken to preserve physical evidence
of incendiarism. All articles of this type should be carefully
labeled, a record made of them in some book kept for the purpose, and they should be retained in the custody of some law
enforcement officer. Under no circumstances should special
agents of the National Board retain custody of such evidence.
Such records and labels are important, for, unless care of this
sort is taken, it is difficult sometimes to establish the authenticity of the evidence or to show that it has not been tampered
with and is what it purports to be. Fire chiefs, fire marshals,
prosecuting attorneys and sheriffs usually have some system
for the identification and preservation of evidence of this type.
18. A report should be submitted every day on which work
is done even though no expense is incurred. It should be
made out on the form of daily report and mailed promptly
to the office to which you are attached.
Among matters which should appear in such reports under
the head of "Remarks" are the probable duration of the investigation, the probable result and when final report may be
expected.
Agents who are not engaged in interviewing witnesses
should state the character and extent of the work they are
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doing, as, for instance: "In conference with the district attorney in the morning, traveling in the afternoon." "In court
all day."
In each instance items of expense reported must represent
the exact amount expended for the particular purpose indicated. Any extraordinary expense, either in character or
amount, should be explained fully in the report or an accompanying letter, and in every instance where possible authorization for any unusual expense must be secured in advance.
Expenses are not to be estimated, averaged, guessed at or
charged under one head when, in fact, they represent an
expense of a different character.
19. Report specially by letter the name, description, his~
tory and location of any professional firebug or pyromaniac
who may come to your attention, stating what surveillance
or other precautionary measures are being taken by the
authorities or otherwise with respect to such person and making suggestions as to what further action you think can or
should ~e tak.en ..The prevention of future fires is as important
as the mvest1gation of fires which have actually occurred.
20. You are a part of the fire insurance business. Familiarize yourself with the business, with particular reference to
adjustments. Read the material which will be sent you from
time to time regarding the National Board of Fire Underwriters and fire insurance.
21. Any recommendation that the special agent thinks
proper to make to an insurance company with reference to
cancelation of a policy should be communicated through his
superior officer to the National Board, and not directly to the
insurance company involved, except in cases of real emergency.
22. While it is desired that special agents shall do such
traveling within their particular territory as the exigencies
of the work may require without special authority from their
supervising office, agents should not undertake any other
travel without first securing authority therefor.
Agents should neither come to their supervising offices nor
go outside their regular territory without special authority
therefor. Agents given special assignments outside their

regular territory or away from their headquarters should not

return to their usual territory or headquarters until authorized to do so.
23. Each special agent operating under the New York
office will be expected to prepare and submit his own expense
account upon the form furnished by the office.
It is desired that each account shall be mailed on the night
of the 23rd of each month and include expenses for that day.
It is necessary that the account shall reach this office not later
than the 25th of each month except in February when accounts
should be mailed two days earlier.
The form is self-explanatory, except that in the first column
the heading "R. R. Fares" should be changed to "Automobile"
or "Airplane" if the agent, in fact, used an automobile or plane
instead of a railroad. This heading, of course, can be changed
as the items may require.
Under the column headed "Miscellaneous" separate entries
should be made of stenographic expenses, extra meals and
incidental expenses, each item being named. Abbreviations
may be used as: Sten., Ex. M., lnci., etc.
It is suggested that each day when you make out your
daily report, you enter the day's items on the account form
so that on the 23rd of the month all you have to do is to add
one day's expenses and add the total column.
24. In order that the office may be informed promptly and
accurately as to the status of your work, you are instructed
to report the status of every investigation in which you are
engaged at least once in three weeks.
In many cases final reports cannot be made in this limited
time, but it involves very little work to advise the status of
each matter in which you are engaged at least once in each
three weeks' period.
Forms of inquiry will be sent to you when no report has
been received within the three weeks' period, or after such
time as a report, from information previously furnished, should
have been expected.
A record is kept of the number of inquiries made of each
agent as an indication of his efficiency.
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COOPERATION OF FIREMEN AND LOCAL

POLICE OFFICERS
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Arson is a peculiar crime in that there is usually no complaining witness by whom the corpus delicti may be established and it is also peculiar in that it almost always is the
result of planning over a period of time and is rarely committed without considerable preparation. It is therefore necessary to establish the fact that a fire is incendiary by circumstantial and physical evidence in most cases. Arson investigators may make this part of their work easier by procuring
the active help of firemen.
Chiefs of fire departments should be encouraged to select
one man in each unit whose definite job shall be to look
for and to preserve arson evidence. This man's duties should
begin as soon as the alarm comes in. He should note the
source of the alarm and, if possible, the person responsible
for it, and on the way to the fire he should be on the lookout
for such suspicious circumstances as persons or machines
hurrying away from the fire, persons evincing unusual interest
in the running of the apparatus or behaving peculiarly at or
near the scene of the fire. He should note whether the fire
originated on the inside or outside the building, look for footprints, tire tracks, ascertain whether the doors and windows
are locked, if forced open, note by whom, as to each entrance
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and make a care ul record of these facts. The color and
volume of the smoke should be noted, as well as odors, depth
of charring, possibility of more than one place of origin and
character of residue deposited on walls or elsewhere. Note
should be made as to whether the usual articles of wearing
apparel are on the premises, how the persons involved in the
fire are dressed, whether silverware, wedding presents, family
pictures and trophies of all kinds are in their accustomed
places. Note any unusual arrangement of furniture; look carefully for plants, trailers, electrical apparatus, finger prints. If
fire is severe, ascertain whether the normal remains are to be
found in the debris. Make notes of numbers appearing on
refrigerators, radios, washing machines, sewing machines and

similar traceable items. Examination of garage and adjacent

buildings should be made, to determine whether they contain
any articles which might ordinarily be expected to be found
in the burned premises.
All physical evidence of incendiarism should be labeled,
recorded and carefully preserved. Care should be taken that
fingerprints are not destroyed by the handling of such articles
as cans, jars, etc. Frequently pictures of fire traps or other conditions, such as absence of stock of merchandise or absence of
clothing in closets and bureau drawers, should be taken.
Wherever photographs are taken, the pictures should be made
before anything is moved. Usually analysis should be made
of any material of an inflammable character, so that definite,
clear-cut evidence may be given as to the nature of the accelerant found.
It frequently becomes important to have an analysis made
to show that material claimed to have been in the fire was
not present. Occasionally claim will be made falsely that
articles such as rfurs, diamonds, shoes or those containing
metal were involved. An analysis may prove conclusively
that they could not have been present.
Firemen detailed as above suggested should be encouraged
to inquire as to where the insurance policies are, when they
were procured and how much insurance is carried. They
should also be on the lookout for evidence of financial condition of the assured. Questions of debt, overdue bills, dunning
letters, unpaid taxes or threatened foreclosures should also be
inquired into. Inquiries should also be made concerning recent
visitors to the premises and recent visits of the occupants to
other places, and concerning any unusual activities observed
around the premises. Whether the occupants have any enemies should be ascertained. If it appears probable that the fire
was incendiary, guards should be kept on the premises until
the police, state fire marshal, prosecuting attorney or other
official charged with the duty of carrying on the investigation
and prosecution can take charge.

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Firemen should be on the lookout for the same faces at

fires, having in mind the possibility of pyromaniacs or professional fire-setters. Firemen should also be on the lookout for
similarity in origin and time with other fires.
The police assigned to arson cases should be encouraged
to see what the firemen have done, whether all foregoing and
similar matters have been covered, should inaugurate immediate investigation to cover any matters on the scene of the
fire not satisfactorily disposed of by the firemen, to ascertain
the previous fire record of the occupants and their near relatives, should canvass gasoline stations, sellers of scrap celluloid, and other sellers of any inflammable material found on
the premises, should question witnesses separately and privately, and suspects finally in the same manner, should examine telephone records for toll calls, learn the history of the
ownership of the premises, and the movements of all interested parties for some time previous to the fire; if confessions
are obtained they should be confirmed as far as possible, usually by having the confession repeated before independent
persons and, if practicable, the activities of the person making
the confession reenacted. If the witnesses from whom evidence is had are accomplices (see page 31), it is essential in
many jurisdictions to have corroboration by some outside
evidence. The police officials should be encouraged to bring
the prosecuting attorney into the investigation as soon as possible, for he is the official on whom responsibility for prosecution must eventually rest and his guidance and early interest
are very important. Where investigations are protracted or
the operations professional in character, the use of modern
recording instruments, moving pictures, long distance cameras and similar modern aids in investigation shou!d be encouraged.
Naturally, both firemen and policemen should be encouraged to obtain the aid of National Board agents whenever such
aid is likely to be beneficial to the development of the full
facts and their consideration by the proper authorities.

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(c) To be ascertained without compensation for loss

resulting from interruption of business or manufacture.

COOPERATION WITH ADJUSTERS

The work of a special agent of the National Board should
supplement that of the adjuster for the companies and it is
necessary that they work harmoniously together.
In investigations, the special agent should confer frequently with the adjuster and report to him, verbally, progress
that is made.
Everything touching the validity of the insurance contract,
such as an increase of hazard, e. g., the existence of a still on
the premises, or any violation of the policy provisions, should
be reported immediately to the adjuster.
Listed below are some of the things the adjuster should
know, and they are incorporated in this handbook merely as
a matter of information as to what data may be of service to
the adjuster. The special agent is not an adjuster and must
not assume any of the functions of the adjuster whatever.
Mr. Prentiss B. Reed, author of "The Adjustment of Fire
Losses," has made the following outline:
The adjuster must:
1. Deal with the person, association, or corporation named
as insured, or with the legal representatives of the insured, and determine the nature and extent of the insured's interest in the property.

2. Determine the actual cash value of the property at the

time of loss, and the amount of loss or damage sustained.

(a) Not to exceed the amount it would cost to repair

or replace with material of like kind and quality
within a reasonable time after loss and damage.
(b) To be ascertained without allowance for any increased cost of repair or reconstruction by reason
of any ordinance or law regulating construction or
repair.

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3. Determine whether the loss occurred after the commencement and before the expiration of the policy.

4. Determine whether the loss or damage was the direct

result of fire or lightning, or of removal from premises
endangered by the perils insured against.

5. Ascertain whether the property was located and contained as described in the policy, or had been necessarily
removed to some proper place or places for preservation from perils insured against within 5 days prior
to loss.

6. Ascertain whether the property lost or damaged is that

described in the policy.

7. Ascertain whether the insured has concealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof, or has been
guilty of fraud or false swearing, either before or after
the loss.

8. Exclude from the claim uninsurable property, or excepted property that is not specifically named in the
policy.
9. Ascertain whether the loss was caused by:
(a) Enemy attack by armed forces, including action
taken by military, naval or air forces in resisting
an actual or an immediately impending enemy
attack;
(b)
(c)
( d)
( e)
(f)
(g)

Invasion;
Insurrection;
Rebellion;
Revolution;
Civil War;
Usurped Power;

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(h) Order of any civil authority except acts of destruction at the time and for the purpose of preventing
the spread of fire, provided that fire did not originate from the perils listed above as excluded;

17. Exercise the options to take articles of personal property. at their agreed or appraised value, or to repair,
rebmld, ?r replace damaged or destroyed property, if
by so domg the company's loss will be reduced.

(i) Neglect of the insured to use all reasonable means

to save and preserve the property at and after a
loss or when the property is endangered by fire in
neighboring premises;

18. Establish any right of recovery from third parties for

the loss.

(j) Theft.

10. Ascertain whether there is other insurance covering the

property.
11. Ascertain whether, unless otherwise provided by written agreement in the policy, the loss occurred while:
(a) The hazard was increased by any means within the
control or knowledge of the insured;
(b) While the described building, whether intended for
occupancy by owner or tenant, was vacant or unoccupied beyond a period of 60 consecutive days.
12. If loss occurred as a result of explosion or riot, ascertain whether fire ensued, and also the amount of loss
by fire only.
13. Fix the extent of the application of the insurance and
the contribution to be made by the company in case
of loss.
14. Investigate any dispute over the cancellation of the
policy.
15. Consider the interest of any mortgagee named as payee
in the policy, and the action which should be taken by
the company if the policy is void as to the insured, but
valid as to the mortgagee.
16. Enforce such requirements as may be necessary to
bring about a proper adjustment, or to prove that no
liability exists.
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INVESTIGATING INCENDIARY FffiES

To develop a case of arson and justify a hope of conviction,
there are four things that should be established in order to
prove the guilt of the accused beyond a reasonable doubt.

1. THE FIRE. It is necessary to introduce proof that the

fire actually occurred at a specific time and within the jurisdiction of the court. In larger cities and towns where there is
a paid fire department, the hour of the fire is recorded. In
smaller towns and villages, the approximate time can usually
be shown either by some member of the fire department or
by an interested neighbor. It is always important to ascertain
who discovered the fire and to interrogate him carefully as
to the appearance of the building, the extent of the fire, its
location and other related facts.
It is important to describe the building in which the fire
occurred, to give the name of the occupant, if any, and also
of the owner, as it may be necessary for the prosecutor to
have this information to prepare an information or indictment
properly.
The mere scorching, smoking or discoloration of a building, without fire communicated thereto, is not sufficient. There
must be actual burning or ignition of some part of the building to constitute the offense. (See however, pages 46-47 concerning attempts and conspiracies to burn.) However, to
render one guilty of arson, the fire need not have been appljed
by the accused with his own hand, nor need he have been
present; if he procured, aided or abetted the commission of
the crime, it is sufficient.

THE LAW OF ARSON

'1 The only treatise on the law of arson dealing exclusively
with this subject is the book by Arthur F. Curtis of the New
York Bar entitled "The Law of Arson," which deals with the
subject in a comprehensive fashion and makes a serious effort
to refer to all adjudicated data on the subject. It is a very
useful book, but many points of law are better covered in
other works dealing more generally with criminal law. On
such points as the corroboration of the testimony of accomplices, establishing the corpus delicti, former jeopardy, etc.,
reference may be had to "Corpus Juris," and other standard
works. Some discussion of some of the more important principles involved will be found in the following pages and attention is invited to the Model Arson Law found on pages 43-47
hereof, but it is obviously impracticable to give in a pamphlet
of this type a comprehensive statement of the law regarding
arson and little benefit would be derived by the investigator
if such were done. Wherever troublesome questions of the
admissibility or sufficiency of evidence arise, recourse may be
had to "Corpus Juris,'' Curtis on Arson, or one of many excellent text books on criminal law. The National Board will be
glad to supply authorities and otherwise aid in attempting to
arrive at the correct solution under any given set of circumstances if requested to do so. A file of important and new
decisions is maintained for this purpose in the New York office.

2. ORIGIN-INCENDIARY. Evidence of some sort must

be introduced to establish the fact that the fire was of incendiary origin. lt is a rule of law in regard to arson that every fire
is presumed to be of accidental origin. This presumption has
to be overcome before the State can make an arson case.
Therefore, a prime fact to be established, which must
be proved by competent witnesses, is that the building was
burned by criminal design, and by a person criminally responsible. In other words, the State must be able to prove
the corpus delicti, or the body of the crime.
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It is not necessary, however, to prove the incendiary origin

by direct and positive evidence. It may be shown satisfactorily by circumstantial evidence.
"The circumstances of a fire may be so suspicious
as to indicate the act of an incendiary. It is quite
possible to have a building burned under such suspicious circumstances as to exclude the notion of the
fire being the result of accident or natural causes ....
The building may be burned under such suspicious
circumstances as to indicate the act of an incendiary,
and thus a corpus delicti established and the door
opened for the defendant's admissions and confessions, but there must be some evidence of some kind,
tending to show the incendiary character of the fire
aside from these confessions and admissions."
People vs. Simonsen
107 Calif. 347; 40 Pac. 440
It makes no difference how strong the evidence of motive
may be against a suspect, or that he had the means and
opportunity to set the fire. He, first of all, must be definitely
connected with the incendiary fire. Even though a confession
may be obtained, it will probably be necessary to introduce
evidence of the corpus delicti before the confession of the
accused can be introduced.
"Evidence of the corpus delicti need not be direct
and positive, but may be circumstantial in its character."
Carlton vs. People
150 Ill. 186
"All the evidence of corpus delicti may be proved
by presumptive or circumstantial evidence where
direct evidence is not to be had."
(St. Clair vs. U. S., 154 U. S. 136; Commonwealth
vs. Williams, 171 Mass. 461 ; State vs. Dickson, 78
Mo. 438; Campbell vs. State, 159 Ill. 9; Commonwealth vs. Webster, 5 Cush. 295; Lancaster vs. State,
91 Tenn. 267.)

prove criminal agency should be offered by the State before

such extra-judicial confession is competent.
"If the facts extrinsically proved by the state corroborate the confession, then full, direct, and positive
evidence of the corpus delicti is not indispensable to
admit the confession in evidence; and if such extrinsic
corroborative facts, when considered with the confession, persuade the jury beyond a reasonable doubt of
the prisoner's guilt as charged, such evidence will
support a verdict of guilty. Blackburn vs. State, 23
Ohio St. 146 approved and followed."
(State of Ohio vs. Knapp, 70 Ohio St. 380, 71 N. E.
705, 1 Ann. Cas. 819, decided in 1904.)
In Smith vs. The State, 64 Ga. 605, it is said:
':Arson seldom can be established by positive
testimony. The character of the offense makes it
necessarily dependent for conviction upon confessions
and corroborating circumstances. The force to be
given the corroboration must be left to an intelligent
and upright jury."

It seems to be conclusively settled:

(1) That an extra-judicial confession is not sufficient in
and of itself to sustain a conviction of a crime.
(2) That some corroborating circumstances tending to

A defendant in a criminal case can not be convicted on

his extra-judicial confession unless it is corroborated in a
material and substantial manner by evidence aliunde as to the
corpus delicti. Such evidence, however, need not be such as
alone to establish that fact beyond a reasonable doubt, but
it is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that
the offense was committed, and that the defendant committed it.
Flower vs. U. S.
116 F. R. 241
Other cases to the same effect might be cited; but these
already referred to, we think, are sufficient to show the state
of the law in the United States, and it will be seen that they
do not sustain the doctrine that the corpus delicti must be
fully proved by evidence independent of the confession. It
is doubtful whether Mr. Greenleaf intended to lay down any
such rule, and, if he did, the courts seem not prepared to adopt
it, as it does not appear to have the sanction of any decided
case either in England or the United States. All that can be required is that there should be corroborative evidence tending

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to prove the facts embraced in the confession; and where

such evidence is introduced, it belongs to the jury, under the
instructions of the court, to determine upon its sufficiency.
U. S. vs. Williams
28 Fed. Cas. 636, 645

leading to and from the building, is sufficient proof

of the corpus delicti to justify admitting the testimony of witnesses that the person accused confessed
to them."
People vs. Hannibal
259 Ill. 512

The Supreme Court of Ohio succinctly stated the rule that

"while extra-judicial confessions alone are not sufficient to prove the body of the crime, that they
may be taken and used for that purpose in co~nec
tion with the other evidence in the cause. This we
understand to be the law."
Blackburn vs. The State of Ohio
23 Ohio St. 164
Conceding the law to be that the State cannot convict, or
even that the State cannot receive evidence of admissions
made by the prisoner, tending to show guilt on his part, unless
it be first shown that the thing charged against him as a
crime has actually taken place, still, when it is shown that the
building charged to have been burned by the prisoner at a
given time, is shown to have been burned at that time, it is
certainly admissible to show that the prisoner admitted that
he did the burning.
Berman vs. The State, 16 Ohio Circuit (N. S.) at 108-9
affirmed by Supreme Court of Ohio without opinion, 81
Ohio St. 508.
In one case of record, the court held:
"Where evidence shows that certain buildings
have been burned, and there were marks of a carriage
having been driven to such premises. and footprints
leading from the place where the carnage stopped to
the house there was sufficient proof of the corpus
delicti to justify the admission of confession of defendant."
People vs. Jones
123 Calif. 35
In an Illinois case, the court held:
"Proof that a school house in a country district
was destroyed by fire about two o'clock in the morning, and that a man's footprints, made at a time when
the grass and stubble were wet with dew, were found

It frequently happens that the incendiary origin of the fire

can be shown by direct evidence such as the saturation of the
premises with kerosene, gasoline or other inflammable fluid.
If any liquid believed to be inflammable is found in such
condition that a small portion of it may be poured out and
actually burned by a public officer or the agent in the presence
of some one, it is usually desirable, as, thereby, the inflammable character is immediately established. (A list of certain
inflammable liquids with information concerning them is
appended hereto, pages 53-54). It may be established by the
introduction of proof that there were two or three fires,
each separate and distinct, having no connection with each
other. A careful examination of the premises should be made
in order to determine whether everything is in its natural
order. Look for the unusual or the unnatural; see whether
articles of furniture were arranged so as to retard the work
of firemen ; or whether there is evidence that a considerable
part of the furniture, fixtures or stock was removed from
the building previous to the fire.

20

21

In a case in which the evidence established the corpus

delicti, the court said:
"That a stranger with no authorized access to the
building could have got in the five-gallon jars, halffull of gasoline and distributed them without the
knowledge of the defendant is extremely unlikely.
His demeanor at the time of his arrest, and his contradictory stories about the keys, were all circumstances which the jury could weigh. He was the only
one who might have had the opportunity, and excepting his absent partner, the only one who might have
had the motive. These important facts are inconsistent with his innocence and quite consistent with
his guilt."
State vs. Dworkin
307 Mo. 487; 271 SW. 477

In attempting to prove the origin of a fire is incendiary,

it is prejudicial error to permit witnesses to state the conclusions they may have reached from things they have seen
and facts they have related. Witnesses may only relate facts,
and the jury must be left to draw its own conclusions. As,
for example, a member of the fire department will not be permitted to testify that he noticed a black smoke at the fire and
drew the conclusion that the building had been saturated with
oil. Nor can he testify that a building burned exceedingly fast
and from his experience as a fireman he is of the opinion that
some volatile oil had been used in the fire.
He can testify, however, that he noticed a dense black
smoke exactly similar to the smoke from burning oil that he
had observed in other fires. He can testify that he noticed
a peculiar odor, identical with the odor observed in a garage
fire. He can testify that the building burned much more rapidly than similar buildings ordinarily burn.
"Common observers having special opportunity
for observation may testify to their opinion as conclusions of fact, although they are not experts if the
subject matter to which the testimony relates cannot
be reproduced or described to the jury as it appeared
to the witness at the time, and their opinions are such
as men in general are capable of forming with reasonable correctness on the facts observed."
Keccis vs. State, N. J. L-44
State vs. Laster, N. J. L-586
also, 98 N. J. 621
or 121 Atlantic 590
Expert Testimony as to Origin of Fire. The practice varies
in different states as to the admissibility of expert opinion
as to the origin of a fire. The leading case in New Yark
is that of People vs. Grutz, 212 New York, 72, which was
a four to three decision. In this case a deputy fire marshal
was asked his opinion of the origin of the fire and, in answer,
enumerated a number of facts which it was quite proper
for him to state, which facts, he stated, indicated to his
mind that the fire was set. The court held that the nature
of the fire marshal's answer did away with much of the harmful effect of the question. The court stated, however, that the

22

..

case was not one for expert opinion. The physical facts which
were the subject of the investigation were so simple that they
could be readily understood, when properly described, and it
was then up to the jury to draw the appropriate conclusion .
While this decision has been accepted by many as prohibiting
expert testimony as to the origin of fires, it is not believed that
it really does so, but that the principles are the same in arson
cases as in any other criminal cases so that, if the facts in any
given case are complicated or of a nature not readily understood by laymen, expert testimony would be admissible.
In the recent case of Kansas vs. Gore (152 Kans. 551;
106 Pac. [2nd] 704) the opinion rendered by the Supreme
Court of Kansas on Nov. 9, 1940, contains the following:
. It is .well to ~r in mind at the outset that the admission of opinion
eVJdence m prosecutions for arson is governed by the same rules as are
applicable in prosecutions for other crimes. (2 R.C.L. 518; 4 Am. Jur.
[Arson] No. 52.) The gen~ral rule is, if a witness has acquired peculiar
kn'!wledge or skill, by e:ic;pen~nce, observation or practice on a subject with
w.h1ch .t~e mass. of mankmd 1s not supposed to be acquainted, he may give
his opinion on 1t. (State v. Nordmark, 84 Kan. 628, 631, 114 Pac. 1068;
State '!' Parsons, 1.40 Kan. 157, 160, 33 P. 2d 1096.) It is true there is
au!h~mty for ~he VJew that generally, subject, however, to exceptions, the
op1mon of a witness that the fire was of incendiary origin is not admissible.
(2 Wharton's Criminal Evidence, 2d ed., No. 956.) Appellant cites numerous decisions supporting that view.
The substance of appellee'~ position and contention was not only that
the fire had been set but that 1t had been set shortly before it was discovered. It seems to us these contentions cannot well be separated entirely
in the instant case, in determining the question of the admissibility of th~
expert's '!Pinion. The evidence disclosed appellant had gone to the shop
at approximately eleven p. m., on the evening of April 28th. He was away
from his lady companion between an hour and a quarter or an hour .and a
half. The alarm concerning this particular fire was given in response to
a call at 12 :58 a~ m., April 29th. Appe)lant was. seen in a cafe just across
th~ street from his shop ten c;ir fifteen mmutes prior to the alarm concerning
this fire. He returned to his car ten or fifteen minutes after that alarm.
~t was the contention of appellee there was no outward evidence of fire
1~ the s:hop at 12 :34 a. m., that the fire had been in progress on!,- a short
time when the alarm was given, and that it was of incendiary origm.
When the expert witness, Holder, arrived, the pile in the middle of the
floor had already settled, to some extent, by reason of the fact the fabrics
at the bottom of the pile had been burned. He stated the fire burned from
the bottom t:P There was no objection to that opinion. The record discloses .the Witness examined the burned fabrics, their location in the pile
t~e umque and unusu.al arrangement of fast-bur?ing and slo~-burning fat>'.
r!cs, and other materials. He named and described the fabrics which consisted of .fast-burni.ng and. those which consisted of slow-burning contents.
He exammed the hght weight dresses on the hangers which in his opinion
were scorched from above by the heat as it descended fr~ the top of th~
balcony. He, also, named the clothing which was in part slow-burning
and in part, fast-burning. The ability to analyze the texture of fabric~
and to state the quick or slow effect of heat upon them was definitely a

23

maf.ter of professional knowledge. The unique manner in which these various fabrics were arranged in the pile, in all probability, suggested far more
to this experienced fireman, whose business it was to search out the cause
of fires, than it did to the ordinary layman. Was his knowledge, his inference or opinion, based upon facts in evidence, and his reasons for his opinion
as to the cause of .the fire, to be withheld from the seekers of the truth,
the triers of the fact? Could the reasons for his opinion, in addition to the
mere explanation of what he found, afford assistance to the jury in determining the issue before them, and if so were they competent? In the rather
early case of Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356, this court
referred to a much earlier case and said:
"In Erb v. Popritz, 59 Kan. 264, 52 Pac. 871, certain witnesses
without railroad experience had been permitted to give their opinion
as to the cause of a certain derailment, and this was held error on the
ground, not only that the witnesses bad no expert knowledge, but that
the appearance of the wreck could have been easily and adequately
described to the jurors so that they could have formed an opinion as
readily as the witnesses. Had the structure and situation been such
that the witnesses by their railroad experience were able to afford the
jury any assistance in addition to that furnished by an explanation of
the facts and the photograph of the bridge it would have been proper
to receive their opinions.'' (p. 119.)
It may be conceded the foregoing were negligence and not arson cases.
It is also true that there is not entire unanimity of opinion in the various
jurisdictions on the subject of admissibility of opinion evidence in arson
cases. In frankness it may, also, be said that in our own earlier decisions
the strict rule against the admissibility of opinion evidence was more rigorously applied than in our more recent decisions. It will serve no useful
purpose to again review the numerous aspects of the question. The complexity of the subject is conceded. However, in the recent case of Malone v.
New York Life Ins. Co., 148 Kan. 555, 83 P. 2d 639, it was stoutly contended a doctor should not be permhted to give his opinion as to the distance
a gun was located from the head of the insured when it was discharged.
Numerous authorities were there reviewed, the conflict in authorities was
recognized, and it was said :
"Distinction between facts and conclusions was involved in Bank v.
Robinson, 93 Kan. 464, 144 Pac. 1019, and it was there said:
'The modern notion of the admissibility of evidence is that it is
more important to get the truth than to quibble over impractical distinctions between facts and conclusions.' (Sy!. 2.)"
In Tovey v. Geiser, 150 Kan. 149, 92 P. 2d 3, the question pertaining
to the admissibility of the opinion of experts upon the subject of which of
two persons died first in a common disaster, was presented. The subject
again received e:ichaustive treatment, and the court concluded:
"While the ordinary rule of evidence is that witnesses should not
be permitted to testify to the ultimate facts which it is the province of
the jury itself to decide, that rule is not strictly applied when the opinions of experts are offered to aid the jury in reaching its decision.
( Sillix v. Armour & Co., 99 Kan. 103, 109, 160 Pac. 1021 ; Malone v.
New York Life Ins. Co., 148 Kan. 555, 557, 83 P. 2d 639.)" (Emphasis supplied) (pp. 156, 157.)
In Wigmore on Evidence, 2d ed. Vol. 4, the principle is stated thus:
"But the only true criterion is: On this subject can a jury from
this person receive appreciable help? In other words, the test is a
relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any
0

24

class of persons acting professionally." (p. 119) (See, also, Vol. 3,

Ghamberlayne's Modern Law of Evidence, 3228, No. 2375; 22 C. J.,
647, No. 740.)
Appellant urges the facts were so simple that the opinion or inference
of an e~rt was unnecessary and that the jury should have .been permitted
to dr.aw its own c?nclusion on tl~e question .of incendiary origin. It was
perrn1t!e?- to reach 1t~ own conclus1oi:s. The JUry was not obliged to accept
the opinion of the witness. It was mstructed it had to reach its own conclusion. Was the jury prejudiced by the opinion of the witness? If it is
true, that from a mere statement or description of the conditions found by
the expert, it was clear the fire had been set then it is a bit difficult to see
just how the opinion of the witness, if incompetent, resulted in prejudicing
the substantial rights of the appellant. ,
While we have concluded the opinion of the witness was admissible
we .may also say fille judgment cannot be disturbed for another reason.
Whtie we have not attempted to narrate all the evidence, the record without the opinion evidence, strongly indicated the fire was of incendiary 'origin.
It was ample to sustain the verdict. Under such circumstances, we would
not be justified in qisturbing the verdict. (Sawyer v. State, 100 Fla. 1603,
16!7; Tovey v. Geiser, supra.) In 5 Encyclopedia of Evidence, 649, it is
said:
"Error in .the admission. of expert testimony may not be ground
for reversal where sooh testimony is merely cumulative and there is
an abundance of other evidence which is competent and ~hich sustains
the opinion of the witness. . . "
. The foregoing rule was stated and approved by this court in Tovey v.
Geiser, supra, page 159.
The Supreme Court of the State of Minnesota, in an opinion filed
January 2, 1943, in the case of the State v. Lytle (214 Minn. 171; 7 N. W.
[2nd] 305), said:
"The evidence of the experienced firemen did not go further than to
state that in thdr opinion some inflammable substance other than that
of which the building was constructed or what it contained contributed
to. the manner and speed with which the fire burned and spread. These
?Jlt:iesses testified from what they observed when they reached the fire
m its early stages. They went no further than to say that it a~ared
to burn and spread like a 'boosted' fire. They did not testify that in
their . opinion it was an incendiary fire, as cited by defendant. This
9uestion do~s not seem to have been squarely presenied to this court
m a1!y previous case. The supreme court of Oregon in First Nat. Bank
v. Fire Assn., 33 Or. 172, 191, 53 P. 8, 50 P. 568, and State v. Director,
113 Or. 74, 87, 227 P. 298, 231 P. 191, has held that similar evidence
is admissible from experienced firemen who observed the fire. It said
that they might testify whether in their opinion the fire was burning
naturally upon the known substance it had to feed upon. We think
there was no error in admitting this evidence."

In other states expert testimony has been received as to

the incendiary character of the fire, one of the agents of the
National Board having qualified as an expert and testified.
It is believed that the correct rule is as stated above, but it is
a good plan to avoid the use of expert or opinion testimony
wherever practicable.

25

In case fire occurs and no physical evidence of origin can

be established, if a large quantity of the furniture was removed previous to the fire, this evidence can be introduced
to overcome the presumption of accident. Such suspicious
circumstances can always be presented to strengthen proof
of the corpus delicti.
It is highly important in all cases where evidences of the
incendiary origin of the fire are found that the premises be
photographed, in order that the jury may be able to see and
recognize the exact conditions. If the investigation indicates
that articles of stock, furniture or fixtures were removed
from the building, it is highly important that these be located
and identified if possible.
It is frequently advisable to eliminate, in so far as possible,
any accidental cause which might be put forward by the
accused as the probable cause of the fire. Furthermore, the
heating and electrical equipments should be examined in order
to prove that the fire was not due to any defect in those
systems. If you are to prove by circumstantial evidence that
the origin of a fire is incendiary, all accidental causes should
be eliminated in so far as possible.
Fingerprints. It is of extreme importance that the investigator exercise the greatest care in examining articles
found near the fire, such as bottles, candles and similar tools
of the arsonist's trade which show evidence of having been
handled by the incendiary, also near means of access, such
as windows and doors. All such articles should be carefully
examined by an expert for evidence of fingerprints. The prints
of no two persons are exactly alike, and from them such an
expert can make positive identification. It is a form of
evidence where demonstration can be made in the presence
of a jury, and an expert is enabled to testify positively. In this
respect it differs from the testimony of a handwriting expert,
who always gives opinion evidence.

charring of the wood or fiber, and, in addition, the burning

must be willful and malicious.
It has also been held that, if a person sets fire to or burns
a building while engaged in the commission of some felony,
such as burglary, it is arson, even though there be no specific
intent in the mind of the accused to set fire to and burn the
building. (2 Bishops Criminal Law, Par. 14, 15-People vs.
Fanshawe 137 N. Y. 68, 32 N.E. 1102) The causeless setting
fire to a building by a person responsible in mind is arson,
because the necessary intention is presumed from the act;
the same act, committed with the intention of perpetrating a
crime, whether such be a felony or misdemeanor, must also
be held to be arson, because the very recklessness of it
supplies the willful intention.

Intent. On account of the great danger to human life

resulting from the burning of an inhabited dwelling, it is
viewed as a particularly grave offense. To constitute arson
there must be an intent to burn the building and some actual

3. MOTIVE. It is extremely important, although not absolutely necessary, to establish a positive motive on the part
of the accused in the trial of a case of arson. The motive
for this crime is usually revenge or a desire to defraud the
insurer. Over-insurance is not always necessary to prompt
an attempt at burning to defraud. Straitened financial circumstances, a desire to change location or some other motive
may be sufficient to prompt a man criminally inclined to
attempt a quick "sale" of his property to some insurance
company.
lt is important in all cases in which a desire to defraud
the insurer is the motive that the value of the property
destroyed be determined as accurately as possible. It is sometimes advisable, when the destruction has been partial, to have
an inventory taken by some person who can qualify before
the court as an expert on values.
In case of arson, expert and opinion testimony as to values
are of great aid in establishing motive, particularly when mercantile stocks that are grossly over-insured are concerned.
The average adjuster is competent to qualify as an expert on
values. When it is not advisable to use an adjuster's testimony,
a local dealer experienced in buying and selling stocks of merchandise similar to the one at issue, and who has been
accorded an opportunity to inventory and appraise this stock,
can be qualified as an expert and testify accordin&ly.

26

27

It is frequently important to have a physical inventory

taken of the stock or fixtures, or both.

Insurance. Inquiries should be made concerning the insurance covering the property. Any recent increase in insurance should be carefully noted, to see whether there was any
increase in value to justify this additional insurance. Any
conversation the accused may have had with insurance agents
or others concerning the validity of his insurance is admissible,
and can be used to show that the fire was anticipated.

.
.,

Any conversation regarding the possibility of a fire on

the part of the defendant previous to the fire is admissible,
and may be used against him.

4. PROOF OF GUILT. If a man is directly accused of

the crime of arson, it is necessary to show by facts or circumstances, or both, that he could and actually did set the fire in
question. If he procured another to set the fire, or if he aided
or abetted the real incendiary, he is equally guilty and liable
to prosecution. Once the corpus delicti is established in an
arson case, every fact or circumstance tending to throw any
light on the case is usually admissible as evidence against
the accused. Much of what has been said under the heading
No. 2 is applicable to the means and method of establishing
guilt.
Confessions. It occasionally happens in the investigation
of cases of arson that a confession is obtained. In the
event that an admission of guilt or confession is secured, every
effort should be made to develop all the corroborative evidence
possible. If the confession is corroborated in its essential details, it is prima facie evidence that it is the truth.
The burden of showing that a confession of guilt was obtained by improper inducement rests with the defendant.
Rufer vs. State, 25 Ohio 464,
cited and followed.
Lefever vs. State, SO Ohio 584
Opposed-Spears vs. State, 2 Ohio 583
See also Rice on Cv. Ev. 488 Pg.
28

Where a signed confession details the defendant's connection with the crime charged and also contains an account of
flight shortly following the crime and the actions of himself
and one or more of his confederates, the entire confession is
competent and relevant.
State vs. Doty
94 Ohio 258
How Competency of Confession is to be Determined. The
competency of a confession is to be determined by the trial
court upon the facts in evidence at the time it is offered,
and in all cases inquiry should be made whether ihe defendant
spoke through fear or in the expectation of immunity, and
when he is under arrest it should also be asked whether he
spoke to the magistrate, or to the officer in charge, or in their
presence, because he felt that he was compelled to for any reason, and it is proper to allow a preliminary examination by the
defendant's counsel to test the competency of a confession
before it is received. After it is received, if a question of fact
arises as to its voluntary character, the jury should be instructed to disregard it wholly, unless they find that it was
voluntarily made, without threat or menace by acts, words
or situation, and without compulsion, real or apprehended,
and without the promise, express or implied, that the defendant should not be prosecuted or that he should be punished less severely.
People vs. White
176 N. Y. 331
Admissibility of Confessions. The question of whether a
confession was improperly introduced or not is for the court
on preliminary inquiry, and its decision is controlling, unless
it appears by the record to be clearly against the evidence.
Rossczcvnilia vs. State
125 Wis. 414
Connors vs. State
95 Wis. 77
Confessions made by a prisoner while under arrest are
admissible if not elicited by coercion, threats or artifice, and
mere advice that it would be better to tell the truth, or words
29

of similar import, will not vitiate them. Rintz vs. State, 125
Wis. 403, on Page 412, the court says:
"If, after the admission of testimony, conflicting
evidence renders it doubtful whether the confession
was voluntary, that question may properly be submitted to the jury."
It was held in State vs. Anderson, 133 Wis. 601, that a
statement is voluntary unless made under the influence of a
threat or menace which inspires dread or alarm or induced by
artifice or a promise or inducement of some profit, benefit or
amelioration of punishment.
The presumption is that confessions are voluntarily made.
In the case of Campbell vs. Germania Fire Insurance Company, 163 Wis. 329, on page 339, where the nature of an
alleged confession was such as to arouse a suspicion that it
was not made freely and intelligently, and the circumstances
under which it was made were consistent with that view, there
was no prejudicial error in instructing the jury that the
alleged admissions were not entitled to weight, unless the
jury were satisfied that they were freely made and not under
such compulsion, threats, intimidation, promise of immunity
or persuasion, as to prevent him from being a free agent
in the matter.
In Terasinski vs. State, 146 Wis. 508, on page 512, the
court said:
"Obviously the mere fact that the confession was
made during an examination by an officer, while the
confessor was at somewhat of a disadvantage, in that
he had no advisor or disinterested person at hand,
assuming that the officer and his associates were
prejudiced in the matter, DID NOT RENDER THE
CONFESSION NECESSARILY INADMISSIBLE.
The question here presented is whether under the circumstances it was fair to believe the confession was
made freely and voluntarily. If THERE WAS
ROOM IN THE EVIDENCE FOR THE JURY TO
COME TO THAT CONCLUSION, IT WAS
PROPER TO ADMIT THE EVIDENCE. THAT
IS ELEMENT ARY. True, if a confession is clearly
induced by fear, favor, or the promise of reward,
evidence of it is not admissible. It is not incompetent
30

'

merely because there is room for a reasonable conclusion THAT IT WAS SO INDUCED. If there
are reasonable conflicting inferences in that regard
from all the circumstances, that being a judicial question, the evidence is competent, leaving it to the jury
to give heed thereto or reject it in their deliberations
according as they may find the proper inferences."
Ibid. 518-"All other evidence of undue influence
going to show that the incriminating disclosures were
not freely and voluntarily made was controverted so
what the real facts were was a jury question."
Who Is An Accomplice? To constitute an accomplice one
must be so connected with the crime that at common law he
might himself have been convicted, either as a principal or as
an accessory before the fact (People vs. Cohen, 223 New
York). A person is not deemed to be an accomplice merely
because he had knowledge of the intended commission of the
crime unless he in some way aids or incites its commission
(People vs. Doyle, 107 Misc. 268).

)
:)

Corroboration of Accomplices. In many states the defendant may not be convicted wholly upon the testimony of accomplices, but this is not so in other states, nor is it the law in
the federal courts. Testimony of an accomplice must always
be received with caution, and the court must so instruct the
jury. In states where defendants may not be convicted upon
the testimony of an accomplice, corroboration by such o):her
evidence as tends to connect him with the crime is necessary
and one accomplice may not corroborate another, so that the
testimony of several accomplices is no more sufficient than
that of a single one. There is an exception to this rule in the
State of Georgia, where, if two or more accomplices testify,
the corroboration may be sufficient. (Chance vs. State, 33 Ga.
App., 137.)
There is a distinction between the corroboration of an
accomplice and the corroboration of a confession, the nature
of the corroborative evidence being different. In the case of
the confession, there must be additional proof that the crime
was committed. In the case of the testimony of an accomplice, there must be other evidence tending to connect the
31

defendant with the commission of the crime. Thus, the testimony of an accomplice on the stand is sufficient to establish
the corpus delicti, a1'though insufficient to convict the defendant without other independent evidence. (People vs. O'Neill,
48 Hun. 36, 5; N. Y. Cr. 302, affd. 109 N. Y. 251, 16 N. E. 68,
6 N. Y. Cr. 48. People vs. Dixon, 231 N. Y., 111.)
False Statements. The fact that the accused has made
false statements is often important evidence, especially if
made to persons investigating the fire or contradicting other
statements made by him at other times, or suggesting a theory
as to the cause of fire which he must have known to be false.
False statements regarding the fact or amount of insurance
are also frequently important. There are many decisions concerning admissibility of such testimony, a number of which
are listed in Curtis on Arson, page 333.
Opportunity. Evidence of opportunity, of course, is admissible, as is evidence of lack of opportunity admissible, on behalf
of the defense. Where exclusive opportunity can be shown-that
is, where the premises are locked and the only known keys in
the possession of the assured-the weight of the evidence, of
course, is greatly increased. An interesting case involving this
principle, but in reverse, is found in the case of Commonwealth
vs. Alba, 271 Massachusetts 333, where the defendants had
testified that they locked the premises but the firemen found
the premises unlocked, giving rise quite properly to the inference that the person who set the fire had gained access to the
property with the keys of one or both of the defendants. (See
also Notes 54 and SS, page 314, in Curtis' "The Law of
Arson.")
Previous Fires. Evidence of previous fires is frequently
competent, especially in support of the theory that the defendant had guilty knowledge and intent in the particular transaction in connection with which he is being tried. Evidence of
this kind may also be admitted to show a plan, a scheme or a
system. In a recent case the Supreme Court of Tennessee, in
an opinion filed January 30, 1937 (Thompson vs. State, 171
Tenn. 156; 101 S. W. [2nd] 467), quoted with approval the
following rule from Wharton's Criminal Evidence, Volume I,
page 527:

"The chief error with regard to the delusiveness of

circumstantial evidence lies in considering it as a mode
of reasoning or proving doubtful points peculiar to a court
of justice. Whereas i,t is nothing else than the common
cour.se of settling all questions which can be settled by
argument employed whether knowingly or unknowingly
by all mankind. If men would stop to consider the fact
that in the ordinary affairs of everyday life they are continually forming judgment on circumstantial evidence
alone, and acting upon these judgments in matters of the
utmost concern to them, they would be less likely to decry
this kind of evidence when acted upon in the administration of justice."
In a legal sense circumstantial evidence is not regarded as
inferior to direct evidence and in many instances reliance may
be had on it more safely than on direct evidence, especially
since .proof by circumstantial evidence usually requires the use
of a large number of witnesses, each testifying to some small

32

33

"Sec. 352. To show plan, scheme, or system. Evidence

of other crimes may be admitted when it tends to establish a common scheme or plan embracing the commission
of a series of crimes so related to each other that proof of
one tends to prove the other, and to show the defendant's
guilt of the crime charged. Subsequent as well as prior
collateral offenses can be put in evidence, and from such
system, identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts, the more complete the induction is. The
time of the collateral facts is immaterial, provided they
are close enough together to indicate that they are a part
of the system. A man may be honestly mistaken and have
no fraudulent intent if a transaction stands alone, but the
probabilities of an honest mistake diminish as the number
of similar transactions, indicating a scheme or system,
increases. * * * "
Weight of Circumstantial Evidence. There exists in the
minds of many persons a strong prejudice against circumstantial evidence and, as evidence in arson cases is very frequently entirely of this character, it is important that a true
understanding of the weight and value of circumstantial evidence be had. A prominent writer has written the following
on this subject:

link, so that a number of perjured witnesses would be necessary to cause an unjust conviction, whereas one perjured witness giving direct testimony might accomplish such a wrongful
act. Justice Walworth, in delivering a charge to a jury in
New York, after setting forth the above reasons, said:
"For this reason, although from the imperfection and
uncertainty which must ever exist in all human tribunals,
I have no doubt that there have been cases in which
innocent persons have been convicted on circumstantial
proofs, yet from my knowledge of criminal jurisprudence,
both from reading and observation, I have no hesitation
in expressing the opinion that where there has been one
unjust conviction upo.n circumstantial evidence alone,
there have been three mnocent persons condemned upon
the positive testimony of perjured witnesses."
The fact, therefore, that evidence is wholly circumstantial
should not deter the investigator, for the facts and circumstances shown may well be so convincing as to demonstrate
to a certainty the guilt of a defendant.
Probably as clear and condensed a discussion as may be
found anywhere of what evidence is admissible in an arson
case appears in Volume 5 of the well-known reference work
"Corpus Juris." Therein, on page 572 and succeeding pages:
appears the following:
. Admissible Arson Evidence. "Any circumstances tendmg to rebut the presumption that the burning was accidental may be given in evidence as proof of the corpus
delicti (the body of the crime), and when the fact of the
burning is clearly and satisfactorily proved, and the circumstances are such to exclude accident or natural causes
as to the origin of the fire, a foundation is thus laid for the
introduction of any legal and sufficient evidence direct or
cirr.umstantial, that the act was committed by the accused
~nd that it was ~one 'Yith criminal intent. Accordingly, it
1s proper to receive ev1d_ence tending to fix the description,
character and surroundmgs of the building at the time of
the fire, and its possession, occupancy or control. For this
puri;~os~, evidence of the contents of the building is
adm1ss1ble, except when the character of the building is
not controverted.
"Not only the burning of tl1e building in question, but
also the extent of the conflagration and the burning of
34

other buildings by the same fire, may be shown in evidence; and while evidence that other fires occurred in
the vicinity at or about the same time as the burning of
the building alleged in the indictment, or that the same
or other property of the accused or prosecutor was on
fire on previous or subsequent occasions, is not generally
admissible in the absence of anything directly to show
defendant's connection with the charge for which he is
on trial, yet if it directly tends to connect defendant with
the burning alleged in the indictment, or to establish
intent, or to show the incendiary origin of the fire in
question, it may be received. So evidence of the burning
of other property belonging to the same owner at almost
the same time is admissible to show that the two fires
were parts of a scheme concocted and carried out by the
assured. The fact that defendant, a few months before
the burning charged, requested another to burn the house
is admissible in evidence.
"Evidence of incriminating circumstances, tending to
show accused's motives, malice or intent is admissible.
Thus on the question of motive, evidence is admissible
which tends to prove that assured set the fire for reward,
or gain, to secure employment as watchman, to destroy
evidence of title, to destroy the record of a pending indictment against him, or to conceal a murder of another.
The acts and declarations of the accused showing the
intention to burn the property in order to collect the
insurance money are admissible against him .
"Threats made by accused against the person or property. of the prosecutor, regardless of whether it is th,e
identical property burned or adjacent property may be
shown, not only for the purpose of proving malice, but
also to connect the accused with the commission of the
offense; and the competency of testimony of threats is
not affected by a considerable lapse of time intervening
between their making and the burning of the building,
or the fact that the ownership changed in the interim,
or that the threats were general, vague, or indirect. However, evidence of a threat made after the fire is not
admissible.
"Ill feeling or unfriendly relations between accused
and owner may be shown.
"It is proper to admit evidence of incriminating circumstances tending to show that the fire was of incendiary origin, and that the accused was connected therewith,

35

such as evidence of defendant's act, conduct and whereabouts, at or near the time of the fire, and his acts or
preparation or his possession of goods proved to have
been in the building immediately before the burning or
that he removed insured goods from the building immediately before it was burned."
In connection with the question of control of the premises
(pp. 21 and 32) it is important to show whether all doors and
windows were locked, whether any evidence of breaking and
entering, the whereabouts of all keys, etc., for, if motive and
incendiary character of the fire are established and exclusive
opportunity shown as to the assured, he may, at least in some
jurisdictions, be convicted either as a principal or as an accessory before the fact to an unknown principal.

MAIL AND OTHER FRAUDS

In many cases where it is difficult to prove either the
fact that the fire was incendiary in character or that the
assured was responsible for it, it is possible to establish an
attempt to defraud on the part of the assured, and recourse
should be had to such state statutes as apply in the ordinary
case. If, however, for some reason, as occasionally happens,
prosecution cannot be had in the state courts, if the proofs of
claim were sent in by the assured through the mails or he
used or caused to be used in some other way the mails in
furtherance of his scheme to defraud, prosecution may properly be instituted in the federal court, and it therefore is
essential that in all cases of fraud, inquiry be made to determine to what extent, if any, the mails were used.
In all such cases, it is important to obtain and preserve
envelopes which contained letters, proofs of loss or other
material sent through the mail.

and seventy-five, and with intent to injure, defraud or

deceive such company, presents to it, or aids or abets in
or procures the presentation to it of, any notice, statement, proof of loss, bill of lading, bill of parcels, invoice,
schedule, account or other written document, whether or
not the same is under oath or is required or authorized by
law or by the terms of such policy, knowing that such
notice, statement, proof of loss, bill of lading, bill of
parcels, invoice, schedule, account or other written document contains any false or fraudulent statement or representation of any fact or thing material to such claim, or
whoever with intent as aforesaid makes, prepares or subscribes, or aids or abets in or procures the making, preparation or subscription of, any such notice, statement,
proof of loss, bill of lading, bill of parcels, invoice, schedule, account or other written document intended to be
presented to any such company in connection with or in
support of any claim under any such policy issued by it
knowing that such notice, statement, proof of loss, bill
of parcels, invoice, schedule, account or other written document contains any false or fraudulent statement or representation as aforesaid, shall, except as provided in section one hundred and ten or one hundred and eleven, be
punished by imprisonment in the state prison for not more
than five years or by imprisonment in jail for not less than
six months nor more than two and one-half years or by a
fine of not less than one hundred nor more than five hundred dollars, or by both such fine and imprisonment m
jail."

ANTICIPATED FIRES
/

Many States have statutes dealing with attempted frauds

under policies of insurance with which investigators working
in them should be familiar. As an example, we quote below a
Massachusetts statute, which is Section 111-A of Chapter 266
of the General Laws:
"Whoever, in connection with or in support of any
claim under any policy of fire insurance issued by any
company, as defined in section one of chapter one hundred

Quite occasionally information comes to investigators that

a fire is going to take place, either at a given place or because
of the actions of a certain person. No general rule can be laid
down as to what should be done in a specific case, but there
are some general principles which should always be followed.
In the first place, no chances should be taken that can be
avoided to prevent the endangering of human lives and the
responsibility in all such cases should be assumed by the
proper public official to whom the faots may be made known.
If the person suspected is a professional arsonist, if danger to
life can be avoided, and reasonable precautions taken to prevent serious property loss, it is probably better that no steps
be taken to cancel insurance or otherwise put conspirators on

36

37

11

notice, but that an attempt should be made to catch the perpetrators in the act. In some cases, of course, where adequate
precautions cannot be taken against property loss or conditions make too difficult or too uncertain the apprehension of
the criminals in the act; the insurance carriers should be notified and the insurance canceled, thus doing away at least
temporarily with the motive for the crime. In the ordinary
case, however, it is usually possible to take such precautions
as will insure no loss of life, little property damage and the
arrest of the perpetrators. Persons arrested in the act of committing arson almost invariably confess their guilt and many
times give to the authorities statements of past crimes. No
investigator, however, should take the responsibility for determining the course to be followed in a given case, but should
give the facts to the highest public official available who has
jurisdiction, and be guided by his advice and the principles
above set forth.

THE PYROMANIAC
Pyromania is that term applied to a monomaniac whose
obsession centers around fire. He is the firebug who starts
fires without rhyme or reason and without any apparent
motive.
There has always been a great deal of superstition in regard to fire. It has been used as a means of sacrifice and
devotion, and the Bible is full of references to the destruction
of the wicked by fire. It is within the bounds of possibility
that our ancestors, generations ago, were fire worshippers or
sun worshippers, and it is not at all strange that, playing so
important a part in our sane existence, the phenomenon of
fire should manifest itself to the aberrant mind.
The monomaniac is the person with a systematized delusion. When this delusion centers around fire, we have the
pyromaniac, just as we have the kleptomaniac in the uncontrollable thief. Every institution for the care of the insane
contains many inmates who might properly be classed as
pyromaniacs. Unfortunately, asylums do not hold all of these
insane firebugs. They are to be found in practically every
community and their contribution to the fire loss of the coun-

38

try is appalling. These unfortunates should be carefully

watched, since, taken as a whole, they constitute a serious
public menace.
Many incendiary fires are set by young boys and girls
who have a desire to be the center of interest or who derive
some satisfaction from the excitement caused by seeing the
firemen conquer the flames. In other cases the impulse to
set fires is nothing more than an hysterical reaction against
surroundings which have become irksome. These classes of
pyromaniacs are usually curable, either by a change of environment or systematic training in emotional control.
In all localities where incendiary fires occur and no apparent motive can be found, a thorough search should be made
for some pyromaniac or other defective who is probably
responsible. He is usually found among those first at the
scene of the fire. It is not unusual to find him a member of,
or taking great interest in, volunteer fire organizations.
This sort of firebug is insane, but not necessarily legally
insane.
In cooperation with the Department of Phsychiatry of
Columbia University, the National Board of Fire Underwriters has made an intensive study of pyromania and has
published a treatise on this subject called "Pathological Firesetting."

REPORTS OF INVESTIGATIONS
Reports are an important part of your work and you will
assist the work of the Committee materially by making them
complete and accurate.
The proper preparation of a report is almost as important
as the proper investigation of a fire; our reports should be as
full and complete as possible, confined to the facts developed
by the investigation and not contain any conclusions of our
own or statements of what we believe might have happened.
Theories, conclusions and suggestions, however, of the
investigating agents on the ground may be of great value and
in all instances should be fully set forth in separate letters
accompanying the reports.

39

In order that reports covering the investigations of our

special agents may be as uniform as possible, you are instructed to observe the following form:
A caption containing the name of assured, whether owner
or tenant, the place and time of the fire should precede the
report.
The first section of the body of the report should contain
a description of the building in which the fire occurred. This
should be brief, but should contain the number of stories, the
approximate number of rooms, class of material of which it is
constructed, its approximate age and dimensions. Give the
name and address of the owner, and of the occupant if there
was one. If vacant, so state.
The second section should contain a sort of pen or word
picture of the fire, the year, month and day it occurred, the
name of the person discovering it and whether or not the fire
department responded. In describing a fire, tell something
of how it burned and, if any physical evidence was discovered,
tell what it is, as, for example, the building was saturated with
gasoline or other inflammable liquids. State whether containers, candles, fire traps, etc., were present; in fact, anything that tends to bear on the origin of the fire. If the
appearance of the building seems to indicate the removal of
goods or stock or articles of sentimental value, make note
of that fact. In a dwelling loss, state whether the closets
and dresser drawers contained the ordinary supply of wearing
apparel, such as would commonly be used by persons dwelling
therein. Mention whether new or additional insurance was
taken out shortly before the fire or any transaction in connection with the insurance which seems to indicate that the
fire might have been expected. Any inquiry regarding the
validity of the insurance or any mention of the fire previous
to its occurrence is important.
The third section should contain all the data relative to
the insurance, the correct names of the companies and whether
or not the property seems to have been over-insured. If you
know the name of the adjuster and the agent representing
the companies, indicate it in this section of the report. In
listing the names of the insurance companies interested in a

40

particular loss, care should be taken by the investigator to

give them accurately. For example, there are the Standard
of New York, the Standard of New Jersey and the Standard
of Connecticut, so that the name Standard does not mean
anything unless you indicate which company is meant. You
will be provided with a roll of members and, if you will use a
little care in getting a correct and accurate list of the companies interested, it will simplify the work of the office. Any
mortgages or liens on the property should then be given,
including names of interested parties, dates and amounts.
The fourth section should contain the statements of witnesses interviewed or their affidavits if such were taken. It is
of extreme importance that the correct names and addresses
of witnesses interrogated be given, with a statement of what
each witness can testify to in regard to the fire.
The closing, or fifth section, should contain any material
facts omitted from the previous four sections of your report.
The history of the assured, his reputation, financial condition,
etc., should be set forth fully. It should contain a note of the
arrest if any is made. (Keep a record of any and all arrests
and report to the office from time to time any developments,
such as indictments, etc.) This section.should include a statement of all persons to whom the information obtained has
been given and any further action contemplated by the agent
or public authorities.
Names. Give the full name and address of owner, tenant,
as well as of all principal witnesses, and at least the initials
of authorities.
It is particularly desirable that every character coming
under suspicion be carefully described in your report. By this
means the same individual may be looked up at some later
time if the present case fails. This information is omitted too
often.
For the special benefit of our loss information service the
full names-not initials only-of all husbands and wives of
assureds who have had a questionable fire should be given in
your report, as well as the full names of other relatives through
whom further insurance might be sought. Insurance which
41

could not be obtained if applied for directly is often obtained

through the subterfuge of a relative's name, after which
another fire occurs.
Be careful to state the precise way in which names should
be spelled and explain any discrepancies if names appear with
more than one spelling.
For like reasons the same information should be given with
respect to persons suspected of guilty knowledge or participation in the questionable fire.

42

STATUTES UNDER WHICH ARSON MUST

BE PROSECUTED
At common law, arson is the willful and malicious burning
of the house of another. Like burglary, it is an offense
against the habitation of another.
The courts have held that the phrase "of another" means
another's to occupy. Therefore, under the common law, a
man cannot commit arson who burns the building of himself.
In some few states, this common-law version still prevails and,
while the scope of the law has been enlarged by legislative
enactment to include buildings other than dwellings, these
buildings must still be those of another.
In certain other states arson is defined as the willful and
malicious burning of the dwelling or certain other buildings,
the property of another. Nebraska had such a law, as did
Illinois, Iowa and Ohio, but these States have enacted the
Model Arson Law, which provides that arson may be committed regardless of the ownership or occupancy of the building burned.
There are three salient features of this Model Arson Law,
whose important provisions are in effect in the following
forty-one States: Alabama, Arkansas, Arizona, California,
Colorado, Connecticut, Delaware, Florida, Georgia, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, North Carolina, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, South Carolina, South Dakota,
Utah, Vermont, Virginia, West Virginia, Wisconsin and
Wyoming.
First, it provides that a man may commit arson who
burns a building, the property of himself or another. Second,
it includes not only those who burn, but, in addition, those
who cause to be burned or who aid, counsel or procure the
burning of certain buildings. This enables the State to prosecute as principals those defendants who otherwise might be
43

regarded as accessories before the fact. The third essential

feature of this law is that it provides that the preparation of
a building for a fire with intent to burn shall constitute an
attempt to commit arson. A draft of the Model Arson Law
as revised is found on pages 44-45 hereof.
As above stated the Model Arson Law is now in effect in
forty-one States. If you are working in a state in which
this law has been enacted, you may occasionally find a trial
court inclined to sustain a demurrer to an indictment in which
a man is charged with arson for burning a building, the
property of himself. In such a case, direct attention to the
following:
H. M. Gamble vs. State of Tennessee, 19 S.W. 279 or 159
Tennessee 446; or
The Commonwealth of Kentucky vs. Mahala Miller, 27
S.W. 2, Page 689; or
State of New Jersey vs. Morris, 98 New Jersey 621 or
121 Atlantic 290; also see
State of New Jersey vs. Delks, 97 New Jersey 43 or 116
Atlantic 465.
In the State of New Jersey an indictment for arson under
Section 123 of the Crime's Act has been sustained by the
Supreme Court of that State.
Charles Morris was indicted under Section 123 of the
Crime's Act, which reads as follows :
"ARSON: PUNISHMENT. Any person who
shall willfully or maliciously burn, or cause to be
burned, or aid, counsel, procure, or consent to the
burning of any dwelling house, whether it be his own
or that of another, or any kitchen, shop, barn, stable,
or other outhouse, that is a parcel thereof, or belonging to or adjoining thereto, or any other building, by
means whereof a dwelling house shall be burnt,
whether it be his own or that of another, shall be
guilty of arson, and punished by fine not exceeding
$2,000, or by imprisonment at hard labor not exceeding fifteen (15) years, or both."

building in the city of Camden; another count charged that

he caused a certain building to be set on fire and a third
count alleged that he procured another to burn the building.
This indictment, as stated above, has been sustained by the
Supreme Court. It does not allege either ownership or occupancy, but simply describes the building and locates it with
sufficient definiteness to enable the defendant to know the
crime of which he was accused.
The following is the form of the Model Arson Law as now
recommended :
ARSON-First Degree
BURNING OF DWELLINGS
Any person who willfully and maliciously sets fire to or
burns or causes to be burned or who aids, counsels or procures
the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other
outhouse that is parcel thereof, or belonging to or adjoining
thereto, whether the property of himself or of another, shall
be guilty of Arson in the first degree, and upon conviction
thereof, be sentenced to the penitentiary for not less than
two nor more than twenty years.
ARSON-Second Degree
BURNING OF BUILDINGS, ETC., OTHER THAN
DWELLINGS
Any person who willfully and maliciously sets fire to or
burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of whatsoever
class or character, whether the property of himself or of another not included or described in the preceding section, shall
be g~ilty of Arson in the second degree, and upon conviction
thereof, be sentenced to the penitentiary for not less than one
nor more than ten years.
ARSON-Third Degree

One count of the indictment alleged that Charles Morris

willfully and maliciously set fire to and burned a certain

BURNING OF OTHER PROPERTY

Any person who willfully and maliciously sets fire to or
burns or causes to be burned or who aids, counsels or procures
the burning of any personal property of whatsoever class or

44

45

character; (such property being of the value of twenty-five

dollars and the property of another person), shall be guilty
of Arson in the third degree and upon conviction thereof, be
sentenced to the penitentiary for not less than one nor more
than three years.
ARSON-Fourth Degree
ATTEMPT TO BURN BUILDINGS OR PROPERTY
(a) Any person who willfully and maliciously attempts
to set fire to or attempts to burn or to aid, counsel or procure
the burning of any of the buildings or property mentioned in
the foregoing sections, or who commits any act preliminary
thereto, or in furtherance thereof, shall be guilty of Arson in
the fourth degree and upon conviction thereof be sentenced to
the penitentiary for not less than one nor more than two
years or fined not to exceed one thousand dollars.

to commit arson or to defraud an insurance company or some

similar offence. To do so it is necessary that there shall have
been an agreement to commit the crime and some overt act
taken in furtherance of the arrangement. In New York State
the crime of conspiracy to commit arson is complete with the
agreement, no overt act being necessary. ("Penal Law," Section 583.) A single person may be prosecuted for conspiracy
if the indictment alleges other conspirators who need not be
named as defendants.
In States where the Model Arson Law is in effect such
cases are very clearly covered by the provisions of that Act,
as to attempts to burn buildings or property.
The language of the Model Arson Law and similar acts
reading substantially as follows:

It quite occasionally happens that the plans of persons

to set fires are frustrated before the fire actually occurs.
In such cases it is usually possible to prosecute for conspiracy

"Any person who shall willfully set fire .to or

burn or aid, counsel, procure or consent to setting of
fire or burning"
has been held to cover separate and distinct offenses-the
setting fire, the aiding in the setting of fire, the counselling,
the procuring, etc.
The Supreme Court of the State of Tennessee so held on
March 16, 1929, in the case of John J. Collier and T. E. Rhodes
vs. Tennessee, and in State vs. Brand (76 N. J. L. 267, Aff'd
77 N. J. L. 486), the Supreme Court of the State of New
Jersey held that the aiding, counselling, procuring or cons~nt
ing to setting fire to or burning of insured property was a
crime, whether the act itself was ever done or not.
The Court of Errors and Appeals in its decision neither
affirmed nor modified this holding of the Supreme Court that
the act itself need not be ever done, contenting itself with
pointing out that the indictment was sufficient if it charged
the offense in the language of the statute and that if the
statute required the act to be done, the indictment charged it.
The Supreme Court in the Brand case made special reference to the case of the Commonwealth vs. Flagg (Mass. Rep.
549) in which Chief Justice Morton said, citing numerous
authorities: "It is an indictable offence at common law for
one to counsel and solicit another to commit a felony or

46

47

DEFINITION OF AN ATTE11PT TO BURN

(b) The placing or distributing of any flammable, explosive or combustible material or substance, or any device in
any building or property mentioned in the foregoing sections
in an arrangement or preparation with intent to eventually
willfully and maliciously set fire to or burn same, or to procure
the setting fire to or burning of same shall, for the purposes
of this act constitute, an attempt to burn such building or
property.
Burning to Defraud Insurer
Any person who willfully and with intent to injure or
defraud the insurer sets fire to or burns or attempts so to do
or who causes to be burned or who aids, counsels or procures
the burning of any building, structure or personal property,
of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any
person, company or corporation against loss or damage by
fire, shall be guilty of a felony and upon conviction thereof,
be sentenced to the penitentiary for not less than one nor
more than five years.
Prosecutions Where No Fire Occurs

other aggravated offence, although the solicitation is of no

effect, and the crime counselled is not in fact committed."
In this case Flagg had endeavored to persuade an acquaintance to burn a barn belonging to a third person, urging
him to do so on two or three occasions, promising him
money for doing so and, in fact, advancing a small sum on
account. The person solicited, however, apparently took no
action looking to the burning of the barn, but the conviction
of Flagg was sustained.
In King vs. Higgins (2 East 5) the Court said: "The
whole argument for the defendant turns upon a fallacy in
assuming that no act is charged to have been done by him;
for a solicitation is an act. The offence does not rest in mere
intention; for in soliciting Dixon to commit the felony, the
defendant did an act towards carrying his intention into
execution. It is an endeavor or attempt to commit a crime."
As vigorous prosecution should be urged in all attempts to
commit arson as would be proper had the fire occurred, for
criminals are not entitled to any consideration because of
the intelligence and efficiency of the police authorities.

STATUTES OF LIMITATIONS IN RELATION TO

INCENDIARY FIRES
In some states arson is never outlawed, while in others
prosecutions must be started within two years after the crime.
In some states there are different statutes of limitations covering different kinds of malicious burning, there being a longer
period for arson coming within the earlier definitions of this
crime and a shorter period for certain statutory malicious
burnings. There is appended hereto a table giving information
concerning statutes of limitations in various states.
In the States of Delaware, Kansas and New Jersey there
are two-year statutes, which are believed to be much too
short. Persons interested in better law enforcement in these
States might well advocate raising the statutory period to
five years.

48

THE PROPER PREPARATION OF AN ARSON

CASE FOR TRIAL
In discussing the subject of the proper preparation of an
arson case, it is necessary to restrict somewhat the treatment
of it, or burden ourselves with a futile attempt to cover the
whole field of criminal investigation and jurisprudence. Assuming, of course, that our efforts are loyal, sincere and inteliigent, there are often times when certain influences are brought
to bear upon these efforts that render them of little value
despite their prima fade import. These influences must be
met in the proper preparation of a case for trial, and it is not
the intention to deal with them at length at this time.
The ultimate object of our work is to discover the truth and
we must arrive at this truth through information furnished us
by parties more or less unknown. It is first necessary to
analyze, as it were, each witness to determine his opportunity
for knowledge and his interest or lack of interest, in order to
decide just what value to place upon his information. Information all looks alike when reduced to writing, and, as such,
it never varies, but, as we know, when our informers become
witnesses, there seems to be some irresistible force which
compels them to swear vaguely and indefinitely. Therefore
it behooves us as investigators to study carefully every person
in the case with a view as to their future value as witnesses
and determine to what extent they may be relied upon, and
what part of their information may be introduced as evidence
of a convincing nature.
Having covered a given case and exhausted every avenue
of information, the results should be consolidated and a thorough study made in order to arrive at a true theory. You are
in truth a physician to the moral incendiary ill of the community and the proper diagnosis is imperative.
Thus far, you have been most concerned in convincing
yourself, and once arrived at the true theory of the case, the
information obtained must be boiled down to plain facts.
Such facts must be arranged and co-ordinated in their order
49

as material and admissible evidence to prove certain legal

phases of your prospective case. It of course follows that
you are dependent upon some person by whom to establish
each and every essential fact, bearing in mind that in order
to obtain and sustain a conviction the evidence must convince
the court, which is the judge of the law, and the jury, which
is the judge of the facts.
In general, for our purpose, our activities in a given case
may be classed under two heads: first, proof of origin : second,
connection of a suspect.
Proof of origin is known in the legal parlance of criminal
investigation as the corpus delicti. As applied to an arson
case it is proof, either direct or circumstantial, that the origin
or cause of the fire was the direct result of human agency
criminally employed with the intent to start said fire. This,
of course, must be established by competent testimony before
any further progress can be made in a successful investigation,
or a criminal trial.
Connection of a suspect being the next step, you must
consider under this general head such facts as tend to fix
personal responsibility as a principal for the crime which you
have heretofore determined as having been committed. Under
this head, named in the order of their importance, are accessibility, motive and preparation-in truth, every fact capable of
being established by a reliable witness as competent and admissible evidence material to the issue.
It necessarily follows that the investigator must first of all
try the case in his own mind and from an impartial standpoint be satisfied with what he conceives to be admissible
testimony in order to present intelligently the case to any
prosecuting authority.
From this point the investigator must be governed by local
conditions and, unnecessary to state, common sense. If he
elects to proceed on a warrant immediately after the arrest,
his suspect becomes a defendant, and as such is guarded by
rigid constitutional guaranties.
In the event of a demand for commitment, the better
course to pursue is not to play your full hand in the submission of testimony to the court of inquiry, but to submit only

sufficient essential facts to create a reasonable indication of

guilt, in order to assure the retention of the defendant.

50

51

It follows at this point that it is highly essential to draw

a distinction between information and evidence. In order to
be sure from a standpoint of evidence, prospective witnesses
who you have determined are able to furnish material testimony should be questioned in a manner to bring out and fix
in their memories that portion of their information which is
essential to the making out of a case. Important positive
witnesses upon whom you are dependent should be questioned in the presence of or by the prosecuting attorney, not
only for his information, but in order that he may take advantage of that fact in the event of their failure to testify
in accordance with information given by them, or rather statements made by them. It enables the court to grant permission
to cross-question your own witness, if it appears that he is
not a willing witness, and in the case of the trial of principals
where testimony of confessed accomplices is being offered, it
enables the prosecuting attorney, in the event of repudiation,
to state that he has been entrapped or surprised, i. e., led to
believe and has relied on a given statement of facts. It makes
little difference for what purpose such a statement is offered;
if the facts once get hefore a jury where there is any other
evidence to support a verdict, it has been known to secure
many justifiable convictions in the face of vigorous defense.
While proof of motive is not legally essential to the determination of guilt, it is always admissible once the fact of
a crime is established and you will find that it is necessary
to show the true motive in order to secure convictions for
arson, particularly where your dependence is on circumstantial evidence. The legal measure for circumstantial evidence is the presentation of a state of facts not only consistent
with the guilt of the assured, but inconsistent with every
other reasonable hypothesis save that of the guilt of the
accused. Failure to prove a true motive leaves a loophole
for acquittal in this class of cases.
An essential feature in the preparation of an arson case
when the established facts warrant prosecution is reasonable
anticipation of the defense. We must realize that in the

majority of cases the evidence must establish a legal and

moral certainty excluding every reasonable possibility in contradiction to the theory of the prosecution, both in establishing the corpus delicti and in fixing the personal responsibility.
Too often are we content to go to trial on a state of facts
sufficient to sustain a conviction, but we fail to obtain same
because we have overlooked the opportunity to provide testimony to rebut a material point in the defense which we might
have anticipated. Therefore, it is not wise to ignore information friendly to your suspect because it might prove valuable
to you as an indication of the trend of the defense.
It is necessary that the evidence you have developed be
such as will convince not only yourself, but impress the
prosecuting attorney that it is sufficient to justify arrest and
prosecution, realizing that, while information may convince
ourselves, it will take positively sworn facts to convince a
jury, and even these have been known to fail.
It would seem to be true that the weakest construction
that can be placed upon a given state of facts is really the
strength of an arson case. The trend of juries many times is to
acquit and they often seem to search for this opportunity.
Therefore it follows that the proper preparation of an arson
case involves a careful study of all information available for
its value as evidence, and cooperation with the prosecuting
attorney in the selection of the best available witnesses to
present the essential facts in their most positive form.

52

INFLAMMABLE GASES AND LIQUIDS

There are a number of gases with which you will frequently come in contact, the most common of which is illuminating gas.
Illuminating gas is ordinarily prepared from the distillation of coal, but in many sections natural gas is used; it has a
distinctive odor. It is lighter than air, but diffuses or mixes
with air very readily, and explodes with a terrific force. Being
lighter than air, a building becomes filled with it (when the
gas jets are turned on) from the top down; consequently a
flame is usually placed at the floor or near the floor and when
the building becomes filled with gas, the explosion takes place
with tremendous force.
Acetylene: This is a hazardous gas, used to some extent
in illuminating dwellings, and is lighter than air, although
there is not much difference in the specific gravity of acetylene
gas and air. It is generated by the action of water on
calcium carbide.
Gasoline vapor: It should he remembered that the vapor
from one pint of gasoline will render 200 cubic feet of air
flammable and explosive. The only favorable characteristic of
gasoline is its relatively narrow range of combustibility, i. e.,
1.3 per cent vapor to and including 6 per cent vapor, and this
is mainly offset by the fact that it is from 2~ to 3 times heavier than air and diffuses very slowly. This explains why gasoline explosions usually occur in cellars, basements or other
low points where the vapor tends to collect.
/
Naphtha and Benzine: These have the same explosive
tendencies as gasoline.
Alcohol and Ether: Alcohol, either wood or grain, burns
with intense heat, and usually with a sort of blue flame. It is
easily ignited; its vapor is heavier than air, but it diffuses or
mixes with air very rapidly and in proper proportions gives
an explosive mixture.
The Engineering Department of the National Board <;>f
Fire Underwriters has a great deal of data and many publications on hazardous materials and explosives. As a special
agent of the National Board, you are privileged to get any
of this material by applying in person to the National Board
office from which you are working, or addressing John A.
Neale, Chief Engineer, of our New York office.

53

Flash Point of Oils and Volatile Liquids

Deirees Fahrenheit

Acetic acid glacial ------------Acetone ------------------

Alcohol denatured --------- 40 to
Ethyl alcohol 95%----..----
Ethyl alcohol 80%....- ......................-----
Ethyl alcohol 60%----------
Ethyl alcohol 40%---------
Methyl alcohol 100%......- ...............................----
Methyl alcohol 80%------------
Amyl acetate (Banana oil) ......................-............................................
Butyl acetate ---------..---
Ethyl acetate ---
Benzol 90% --------
Benzol 50% ------
Benzine ----
0 to
Carbon disulphide -------
Kerosene oil ----- 110 to
Ethyl chloride ------
Fusel oil ---------- llO to
Methyl acetate ----------Turpentine ----Analin -----Toluene ------Xylene ---Heavy naphtha -..--- 60 to
Solvent Naphtha ---..- 40 to
Crude Petroleum -- 69 to

~:l~~li~~h;~-:~:.::::::::.::::::~.::::::::::::::~.:~:~:~.::.::::~.::::::::::::::::.:.:~.::.::::::::.:::

~i~~h~:~:

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

Naphthaline -
Olive oil ----------
Cottonseed oil ---------
Rosin oil -----
Paraffin oil ---
Paraffin wax ---- 360 to
Linseed oil .................................................................................................. 600 to
Lard oil ------Lubricating oil ----- 500 to
Light motor oil..........................................................................................
Spermaceti ----
Tar -------- 160 to
En!?ine spindle oil......--- 275 to
"Vanrolene" (trade name) --- 95 to

54

111
35
50
55
66
72
80
49
62

77

95
40
41

59
5

4
150
O
130
40

95
78
44
86
108
66
73

}~i

392
420
336
266
224
400
660
464
600
392
482
180
374
112

Statutes of Limitations
Nevada-4 years
New Hampshire-None
New Jersey-2 years
New Mexico-None
New York-On Arson, 5 years. A
prosecution for a misdemeanor must be commenced within two years
after its commission.
North Carolina-None
North Dakota-3 years
Ohio-None
Oklahoma-3 years
Oregon-3 years
Pennsylvania-5 years, felony
2 years, misdemeanor
(depends on class of
building burned)
Rhode Island-3 years
South Carolina-None
South Dakota-3 years
Tennessee-real property, 4 yrs.
personal property, 2 yrs.
Texas-Arson, 5 years
Burning to defraud, 3/years
Filing false proof, 2 years
Utah-4 years
Vermont-None
Virginia-None
Washington-3 years
West Virginia-Arson, none
1 year on a misdemeanor
Wisconsin-6 years
Wyoming-None

Alabama-None
Arizona-5 years
Arkansas-3 years
California-3 years
Colorado-None
Connecticut-5 years
Delaware-2 years
District of Columbia-3 years
Florida-5 years
Georgia-4 years
ldah~ years
Illinois-none as to dwellings;
other buildings 3 years
Indiana-None
Iowa-3 years
Kansas-2 years
Kentucky-none
Louisiana-On what amounts to
arson under civil law,
none ; on statutory
burnings not defined
as arson, 1 year, from
time prosecutor gets
information
Maine-None
Maryland-None
Massachusetts-6 years
Michigan-6 years
Minnesota-3 years
Mississippi-none
Missouri-3 years
Montana-3 years
Nebraska-None

55

IN DEX
Page
Accidental Origin
Elimination of .......................... 26
Presumption of - 17
Accomplice
Who is- 31
Corroboration of ........................ 31
Adjacent Buildings - 10
Adjusters, Agents' Cooperation
with -12-15
Alarm, source of - 9
Analyses -- 10
Anticipated Fires .......................... 37-38
Arson
Degrees of ................................45, 46
Attempts ........................... .46, 47, 48
Attempts ..................................46, 47, 43
Circumstantial Evidence ................ 18
Weight of ---33-34
Confessions..... .11, 18, 19, 20, 28, 29, 30
Admissibility of .......................... 29
Competency of --- 29
Confirmation -- 11
Extra-judicial ----.18, 19
Conspiracy ......................................46-47
Corpus Delicti....... .17, 18, 19, 20, 21, 22
Confessions to establish
corpus delicti -.18, 19, 20
Debris -- 9
Debts ---- 10
Doors --- 9
Electrical Apparatus -9, 26
Enemies ----.10, 35
Expert Testimony
As to origin --22-23-24-25
As to values ---- 27
False Statements -- 32
Financial Condition - 10
Fingerprints --9-10, 26

Page
Fireman
Evidence, preservation by.......... 9-10
Evidence, gathering by..-- 9-10
Footprints --9, 20
Foreclosures ----- 10
Frauds ..............................................36-37
Furniture Arrangement. __.......9, 21, 26
Gases and Liquids, inflammable....53-54
Guards ........................................... 10
Incendiary Origin...............21, 22, 23
Inflammable, gases ........................53-54
Instructions for National Board
Agents - 3
Attitude of investigator....... _. 4
Cancellation of policies............ 7
Complaints - 5
Cooperation...- ......4, 11, 12, 13, 14
Expenses -- 7, 8
Firebugs ....................................7, 38
Frame-up - 4
Induced crimes ---- 4
Libel ............................................ 5
Personal conduct ...................... 4-5
Physical evidence - 6
Publicity ----- 4
Pyromaniacs ......................7, 38-39
Record of cases -- 6
Reports

INDEX-Continued
Page

Page

Intent -------26-27, 35
Law of Arson------- 16
Limitations, Statutes oL ............ .48, 55
Loss Information Service...---- 41
Mail Frauds ...................................... 36
Membership Roll ---- 41
Model Arson Law....43, 44, 45, 46, 47
Motive ----21, 27-28, 35
Names ................................................ 41
Precise spelling .......................... 42
Relatives ---------- 41
Odors ------9, 22
Opinion Testimony ___ ....22-23-24-25
Opportunity -----21, 32
Origin of Fires -----.17-18
Over-Insurance --- 27
Pictures --9, 10
Plants ------- 9
Police
Investigation by -10-11
Preparation for Trial ........49-50-51-52
Previous Fires -11, 32
Prosecuting Attorney -- 11

Pyromaniacs ....................................38-39
Radios ---- 9
Recent Insurance - - - - 28
Records-previous fires ____11, 32

Daily -- 6
Preliminary ..................--- 6
Status ---- 8
Summary .............. 39, 40, 41, 42
Slander -.. 5
Status of agents...-- 5
Status of work....----- 5
Traveling --- 7-8
Whereabouts -- 5
Insurance --.10, 28, 35

56

57

Refrigerators --------
Requests to Btml-..-----Residue -----------Scorching -------Sewing Machines ----Silverware -----
Smoke ----9, 17,
Statutes ...................................43, 48,
Taxes -----
Telephone Records -----
Tire Tracks ---9,
Trailers ---
Trophies ..............................................
Two or More Fires..........................
Visits and Visitors.................... _......
Washing Machines ---Wearing Apparel------
Wedding Presents -----Windows -------

35
9

17
9

9
22
SS
10
11
20
9
9
9

10
9
9
9
9