Appeals from Circuit Court, Polk County. Darrell J. Williams, Judge. Nos. 20378, 20379.
Bruce W. Williams, P.C., Salem, argued the cause and filed the brief for appellants.
John L. Snyder, District Attorney, Dallas, argued the cause and filed the brief for respondent.
Schwab, Chief Judge, and Foley and Thornton, Judges.
The defendants upon trial by jury were convicted of first-degree arson. ORS 164.325. On appeal they contend: (1) there was not sufficient evidence against them to make a jury question; (2) statements made by them to the Dallas fire chief and a police officer shortly after the fire should have been suppressed because they were not given Miranda*fn1 advice prior to the questions which elicited the statements; and (3) that in his closing argument the prosecuting attorney made prejudicial comments about defendants' motives.
On December 1, 1971, the defendants, who were partners in a construction business, purchased for a total price of $46,000, from one Lloyd Penner, property in Dallas, Oregon, which had on it, among other structures, an old house. The defendants paid only $2,500 down. There was a mortgage on the property and from a document in evidence it appears that of the remainder of the purchase price due from the defendants, $9,000, was to go to the seller, and the balance through
him to the mortgagee. The December 1, 1971, purchase contract stated:
"The sellers agree to give warranty deed and take back a note secured by a second mortgage for an amount not to exceed $9000.00 * * *. When second mortgage note is reduced to $5000.00, the old frame house may be razed and the sellers agree to subordinate said mortgage to a construction loan not to exceed the cost of construction of an apartment building not to exceed 4 living units, plans to be approved by sellers * * *."
There is evidence that the defendants were desirous of razing the "old frame house" (which they were convicted of burning) and replacing it with a new structure as soon as they could. There is also evidence that there was fire insurance on the property, including $7,000 of coverage on the building in question, and that by agreement between defendants and Mr. Penner this policy had been assigned to the defendants subject to the interests of the mortgagee and the seller, Mr. Penner.
The house was occupied by a Mr. Pelto and his family. Pelto had originally rented it from Penner and after the sale continued to rent it from the defendants. On the day before the fire the pipes in the house had frozen during a cold spell. Mrs. Pelto called the defendant Porter, and the defendants both came to the house the next day at about 1 p.m. They advised Mrs. Pelto that they could not fix the pipes before noon on the following day. The Peltos left with the intention of spending the night somewhere else. The defendants came to the premises several times that afternoon and there is evidence that they were seen leaving the premises the last time just shortly before the fire was discovered. There is ample evidence in
the record that the fire was "set," including the fact that as soon as people, including Mr. Pelto, entered the premises after the fire they noted a strong smell of gasoline or some other petroleum product. There was no evidence that after the Peltos left anyone but the defendants had entered the house, and Mr. Pelto testified that he did not keep any petroleum products on the premises. We find the above facts ...