Appeal, No. 308, Oct. T., 1958, from judgment of Court of Oyer and Terminer and General Jail Delivery of Lebanon County, June T., 1956, No. 11, in case of Commonwealth of Pennsylvania v. Merlin P. Adams. Judgment affirmed.
I. Emanuel Meyers, with him Solomon Hurwitz, Benjamin L. Levi, and Hurwitz, Klein, Meyers & Benjamin, for appellant.
James R. Whitman, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 612]
Defendant, a painter and paper hanger, was convicted of arson and was sentenced. He has appealed from the refusal of his motions for a new trial and in arrest of judgment.
In midmorning of Sunday, April 8, 1956 the Rescue Fire Company of Annville responded to a call to a fire in the defendant's dwelling house in North Annville Township, Lebanon County. Richard Funck, an Assistant Fire Chief of the company, followed three other
[ 187 Pa. Super. Page 613]
firemen into the basement of the house after it was sufficiently cleared of smoke. He observed two separate and distinct fires in the basement, one along the east wall and the other at the south wall; the fires were eight feet apart and there was no connection between them. Wooden racks on which defendant's stock of wallpaper was stored, lined both the south and east walls. Parts of the racks and rolls of wallpaper in the racks along both walls had been burned. The fire along the south wall had burned through the floor above, into a bathroom. The other fire at the south wall scorched the ceiling but was confined to the basement. The testimony of other firemen who appeared as witnesses was to the same effect. Funck testified further that on entering the basement he had knocked over a kettle, and as its liquid contents spread over the floor "flames shot in back of the three men that were with me ... like you throw gasoline on top of water, or kerosene ... it just flashed like that, and spread around ..." Michael A. Wisniewski, a Deputy Fire Marshall of the Pennsylvania State Police examined the premises in the morning of April 9th and again on the following day. His testimony as to the condition of the premises is identical with that of the other witnesses. In addition he found a pair of men's trousers in the basement, and the burned off cuff of another pair, together with a remnant of a cardboard box and a coffee can with a saturated rag in it. Wisniewski testified further that on April 19th eleven days after the fire, the defendant in an oral statement voluntarily confessed that he started the fire. Defendant later on the same day also signed a written confession, and he also signed a rough sketch made by him, indicating where he had placed the coffee can, the cardboard box and the saturated rags. Other witnesses were present when the defendant made both confessions and they all testified that
[ 187 Pa. Super. Page 614]
the confessions were not induced by either promises or threats. The defendant took the stand in his own defense. He testified that he had spent the evening of the day of the fire cleaning his paint brushes with kerosene in the basement of the house and that the old pair of trousers and the rags which he had used in wiping the brushes, had become wet with kerosene in the process. He recanted both his oral and his written confessions, but he conceded that the signatures on his written confession and on the sketch of the basement, were his. He testified that he had admitted starting the fire because of the pressure of threats by the police, involving his daughter. The jury did not believe him, and on sufficient evidence on the part of the Commonwealth found him guilty of arson.
A jury was impanelled and the trial began on December 10, 1956. When court convened on the morning of December 14, juror number 12 failed to appear because of illness. Thereupon defendant's trial counsel stipulated with the district attorney in open court, although at side bar, that the trial proceed with eleven jurors. This jury at the conclusion of the trial, on the same day, returned its verdict of guilty. There is no merit in defendant's contention, in seeking a new trial, that his counsel did not have authority to waive his constitutional right to trial by a jury of twelve. Defendant although present in court, did not participate in the side bar conference but he must have observed the vacant chair in the jury box and he did not at any time, during the last day of the trial, object to proceeding with his defense before a jury of eleven. The applicable law on the subject is settled beyond ...