Commonwealth vs. Remi Gauvin.
Middlesex.
November 22.—26, 1886.
Holmes & Gardner, JJ., absent.
At the trial of an indictment for burning a building in a certain town, the evidence tended to show that the fire was of incendiary origin. The defendant offered to prove that there were two other fires of incendiary origin in the same neighborhood in that town, shortly before the burning alleged in the indictment; and contended that the three fires were set by the same person, and by some person other than the defendant. Held, that the evidence offered was rightly excluded.
*135Indictment, in four counts, for burning a building in Marlborough, on December 15, 1885.
At the trial in the Superior Court, before Staples, J., it was contended by the government, and evidence was introduced tending to prove, that the fire was of incendiary origin. This was not disputed or denied by the defendant. The evidence relied upon by the government to convict the defendant was wholly circumstantial. The government called one Hernán S. Fay as a witness/who testified, among other things, that he was a resident of Marlborough, was an attorney at law, and was engaged in the business of effecting insurance; and that he effected insurance upon a stock of goods belonging to the defendant, and situated in the building burned, as alleged in the indictment. On cross-examination, he was asked by the defendant whether or not, about the time of this fire, there were other incendiary fires in the same neighborhood. The defendant offered to prove that in the same neighborhood in Marlborough there was one fire about six weeks before, and another four days before, the burning of the building alleged in the indictment; and that said fires appeared to be and were of incendiary origin. The defendant contended that all of said three fires were set by the same person, and by some person other than the defendant.
The judge ruled that the evidence offered by the defendant was incompetent and immaterial; and excluded the question to Fay. The jury returned a verdict of guilty ; and the defendant alleged exceptions.
H. E. Fales, for the defendant.
E. J. Sherman, Attorney General, for the Commonwealth.
By the Court.
The indictment charges the defendant with burning a building in Marlborough. The fact that there were two other fires in Marlborough shortly before the burning alleged in the indictment, which the defendant contended “ were of incendiary origin,” has no tendency to prove either that the defendant did or did not set fire to the building named in the indictment.
The court was not called upon to try in this case the questions whether the two previous fires occurred, whether they were incendiary, and, if they were, whether they were set by the *136defendant or by some other person. These questions are collateral and immaterial, as, whichever way they might be settled, they do not aid in determining whether the defendant was guilty of the offence charged. The court rightly rejected the evidence offered by the defendant to show such previous fires.
Exceptions overruled.