Caton, J.
There is no dispute about the principles of law as to the rights of the parties here. The only controversy is one of fact. This question is an important one, for it involves the inquiry as to the guilt or innocence of Roney of the crime of arson, in "burning his store and stock of goods covered "by the policy, of insurance, and incidentally of the crime of perjury in swearing to a false protest. In such a case every legal presumption is in favor of his innocence, and we should not, by our finding, pronounce him guilty, unless that guilt is clearly established by evidence, excluding or overcoming every fair and reasonable hypothesis of his innocence. The character of the questions involved have increased our solicitude to give it the most careful consideration possible. It has been twice elaborately argued so that we think we have considered it, with the aid of the views taken by counsel on both sides. We are finally constrained to the conclusion that the defense set up by the insurance company is clearly and satisfactorially sustained by the proof, and that Roney himself was the cause of the fire by which his goods were destroyed. It is impossible, in this opinion, without extending it to an unreasonable and unjustifiable length, to go through, in detail, with the immense mass of evidence in the record which has led us to our conclusion, or even, to advert to all the material facts and circumstances in proofj but this is the less important, as such a minute discussion of facts could be of little or no value as a precedent, which is the great purpose of reported cases. Some of the leading facts and circumstances which we consider established by the evidence in the case will be stated.
' The store, in which the goods were burned, was a one story wooden structure, upon one side of which was an alley into which a door from the back room opened. The ceiling of the store was lathed and plastered, through which there was no access to the attic, which, was unoccupied and inaccessible. There was a stove in the front, room, the pipe of which was introduced into a brick flue, resting on the joist of the ceiling and extending out through the roof. From a great variety of circumstances shown, we have no doubt that the fire originated in this attic, either from sparks passing through this brick flue, or from Roney opening a hole through this ceiling and introducing it himself. The fire had so far progressed, when it was first observable, through the roof, that the ceiling very soon after fell and precluded the possibility of saving any of the goods in the front store, except a few coats, which were taken out by one of the witnesses, upon his first arrival and immediately before the ceiling fell. A trunk belonging to Logan, a clerk of Roney’s, who was then absent, and a Dutch chest and some other packages belonging to Roney, which were in the back room, were saved, jloney slept in the back room alone, and was the only person in the house at the time the fire occurred, which was about two o’clock in the morning of the tenth of February, 1853. Roney had a policy of insurance, underwritten by the defendant, on the merchandise in this store, and soon after the loss, made out his protest with an invoice of the goods claimed to have been lost, amounting to §6,805.50, of wliich the defendant paid him §4,400.43, that being the amount of the invoice, excepting the cutlery and jewelry, which it was insisted were not covered by the term merchandise in the policy. This protest was subsequently so amended as greatly to clecrease the amount of jewelry and cutlery lost, and increase the loss on goods admitted to be covered by the policy.
As it was possible for this fire to have originated without the agency of Roney, we are bound to presume that it did so originate, unless forced to a contrary opinion, by established facts, satisfactorily and clearly rebutting every such presumption. While it is possible that the fire might have originated from the fine, the lateness of the hour, when it occurred, inducing the supposition that the fire had gone down or gone out in the stove, weakens to a considerable extent at least, the 2>robability that the fire originated from that cause. But this of itself would be far from sufficient to establish the guilt of Roney. In the inquiry before us, we must first look for a motive to prompt him to the commission of the act with which he is charged. The only assignable motive is the recovery from the insurance company of an amount greater than the loss, which he might sustain by the fire. While this is a motive which could only influence a bad man, unrestrained by moral puincipfles, or the fear of punishment, yet we know that it has been sufficient frequently to prompt to the commission of similar offenses, and that too, by men whose previous character would lead to no suspicion, that they would yield to such a temptation. In this case, we cannot resist the conclusion that Roney’s protest did show a greater loss of goods, than were actually consumed by the fire. The testimony of Logan shows that the account of goods taken before the tire, was intentionally falsified by Roney himself, and.this false invoice taken by Roney, served as the basis for the protest, by which the extent of his loss was magnified. Again, he represented in his protest, as lost, a considerable amount of goods, including cutlery and jewelry, which had been clandestinely secreted, mostly in the Dutch chest, very shortly before the fire, and which was saved. A part of these goods were from time to time stealthily introduced into his store, which he subsequently opened in Beardstown, and mixed up among the other g6od~ apparently so as no~ to attract the attentioñ of Logan, who still continued as his clerk, and a part still remained in the chest and were there found at the time of his arrest. By these several means we are satisfied Boney exaggerated the amount of his actual loss "by more than one-half, and this so connects itself with the only assignable motive for the act, that it prepares the mind at once to expect other evidences of guilt. And these are not wanting. As is suggested in the written argument of one of the counsel for the defendant, in his very close and critical review of the evidence, it does appear as if Eoney had, for a considerable time, anticipated this fire, and prepared for it. Indeed, he seems to have made every preparation for it in a deliberate and cautious manner. If he was to cause the fire, it was necessary that he should be alone when it should be done. This he carefully provided for, by sending Logan, his clerk, away on a collecting tour, and when he returned before he anticipated and before the fire, in consequence of the extreme cold weather, he insisted upon his going again; against Logan’s remonstrances. Logan’s absence was thus secured, when his presence would have disappointed or frustrated his plans. The witness, Stevenson, had always been very intimate with Boney, and was in his store several times daily, and had always, at Boney’s request, staid with him nights, when Logan, his clerk, was absent. On the night of the fire, he was in the store until ten o’clock, and contrary to his usual custom received no invitation from Eoney to stay with him that night, which he particularly temarked. If Eoney had no design in thus securing himself1 from the presence of Logan or Stevenson on this particular night, it is at least very remarkable and very unfortunate; for we can hardly resist the conclusion that he had a design in being alone on that night, which is indi-' cated by what followed.
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Caton, J.
There is no dispute about the principles of law as to the rights of the parties here. The only controversy is one of fact. This question is an important one, for it involves the inquiry as to the guilt or innocence of Roney of the crime of arson, in "burning his store and stock of goods covered "by the policy, of insurance, and incidentally of the crime of perjury in swearing to a false protest. In such a case every legal presumption is in favor of his innocence, and we should not, by our finding, pronounce him guilty, unless that guilt is clearly established by evidence, excluding or overcoming every fair and reasonable hypothesis of his innocence. The character of the questions involved have increased our solicitude to give it the most careful consideration possible. It has been twice elaborately argued so that we think we have considered it, with the aid of the views taken by counsel on both sides. We are finally constrained to the conclusion that the defense set up by the insurance company is clearly and satisfactorially sustained by the proof, and that Roney himself was the cause of the fire by which his goods were destroyed. It is impossible, in this opinion, without extending it to an unreasonable and unjustifiable length, to go through, in detail, with the immense mass of evidence in the record which has led us to our conclusion, or even, to advert to all the material facts and circumstances in proofj but this is the less important, as such a minute discussion of facts could be of little or no value as a precedent, which is the great purpose of reported cases. Some of the leading facts and circumstances which we consider established by the evidence in the case will be stated.
' The store, in which the goods were burned, was a one story wooden structure, upon one side of which was an alley into which a door from the back room opened. The ceiling of the store was lathed and plastered, through which there was no access to the attic, which, was unoccupied and inaccessible. There was a stove in the front, room, the pipe of which was introduced into a brick flue, resting on the joist of the ceiling and extending out through the roof. From a great variety of circumstances shown, we have no doubt that the fire originated in this attic, either from sparks passing through this brick flue, or from Roney opening a hole through this ceiling and introducing it himself. The fire had so far progressed, when it was first observable, through the roof, that the ceiling very soon after fell and precluded the possibility of saving any of the goods in the front store, except a few coats, which were taken out by one of the witnesses, upon his first arrival and immediately before the ceiling fell. A trunk belonging to Logan, a clerk of Roney’s, who was then absent, and a Dutch chest and some other packages belonging to Roney, which were in the back room, were saved, jloney slept in the back room alone, and was the only person in the house at the time the fire occurred, which was about two o’clock in the morning of the tenth of February, 1853. Roney had a policy of insurance, underwritten by the defendant, on the merchandise in this store, and soon after the loss, made out his protest with an invoice of the goods claimed to have been lost, amounting to §6,805.50, of wliich the defendant paid him §4,400.43, that being the amount of the invoice, excepting the cutlery and jewelry, which it was insisted were not covered by the term merchandise in the policy. This protest was subsequently so amended as greatly to clecrease the amount of jewelry and cutlery lost, and increase the loss on goods admitted to be covered by the policy.
As it was possible for this fire to have originated without the agency of Roney, we are bound to presume that it did so originate, unless forced to a contrary opinion, by established facts, satisfactorily and clearly rebutting every such presumption. While it is possible that the fire might have originated from the fine, the lateness of the hour, when it occurred, inducing the supposition that the fire had gone down or gone out in the stove, weakens to a considerable extent at least, the 2>robability that the fire originated from that cause. But this of itself would be far from sufficient to establish the guilt of Roney. In the inquiry before us, we must first look for a motive to prompt him to the commission of the act with which he is charged. The only assignable motive is the recovery from the insurance company of an amount greater than the loss, which he might sustain by the fire. While this is a motive which could only influence a bad man, unrestrained by moral puincipfles, or the fear of punishment, yet we know that it has been sufficient frequently to prompt to the commission of similar offenses, and that too, by men whose previous character would lead to no suspicion, that they would yield to such a temptation. In this case, we cannot resist the conclusion that Roney’s protest did show a greater loss of goods, than were actually consumed by the fire. The testimony of Logan shows that the account of goods taken before the tire, was intentionally falsified by Roney himself, and.this false invoice taken by Roney, served as the basis for the protest, by which the extent of his loss was magnified. Again, he represented in his protest, as lost, a considerable amount of goods, including cutlery and jewelry, which had been clandestinely secreted, mostly in the Dutch chest, very shortly before the fire, and which was saved. A part of these goods were from time to time stealthily introduced into his store, which he subsequently opened in Beardstown, and mixed up among the other g6od~ apparently so as no~ to attract the attentioñ of Logan, who still continued as his clerk, and a part still remained in the chest and were there found at the time of his arrest. By these several means we are satisfied Boney exaggerated the amount of his actual loss "by more than one-half, and this so connects itself with the only assignable motive for the act, that it prepares the mind at once to expect other evidences of guilt. And these are not wanting. As is suggested in the written argument of one of the counsel for the defendant, in his very close and critical review of the evidence, it does appear as if Eoney had, for a considerable time, anticipated this fire, and prepared for it. Indeed, he seems to have made every preparation for it in a deliberate and cautious manner. If he was to cause the fire, it was necessary that he should be alone when it should be done. This he carefully provided for, by sending Logan, his clerk, away on a collecting tour, and when he returned before he anticipated and before the fire, in consequence of the extreme cold weather, he insisted upon his going again; against Logan’s remonstrances. Logan’s absence was thus secured, when his presence would have disappointed or frustrated his plans. The witness, Stevenson, had always been very intimate with Boney, and was in his store several times daily, and had always, at Boney’s request, staid with him nights, when Logan, his clerk, was absent. On the night of the fire, he was in the store until ten o’clock, and contrary to his usual custom received no invitation from Eoney to stay with him that night, which he particularly temarked. If Eoney had no design in thus securing himself1 from the presence of Logan or Stevenson on this particular night, it is at least very remarkable and very unfortunate; for we can hardly resist the conclusion that he had a design in being alone on that night, which is indi-' cated by what followed. On that very night the witness noticed several articles in the show case, in the store, which Eoney represented as lost, but which were subsequently found secreted in the chest and trunk which were saved from the back room of the store where Eoney slept. Eoney represented to the appraisers that all the articles in the show case were destroyed by the fire, several of which are positively identified, which were found secreted in Eoney’s possession after the fire, and others, such as pistols, could not be consumed by the fire. These were searched for in the ruins, at the place where the show case stood, and no vestige of the contents of-the show case was left. They must have been taken out before the fire, and that too, on the very night of the fire, after ten o’clock.
Bow, how can we resist the conclusion that Eoney set fire to this store himself, 'when we see that he thus deliberately prepared for it, by securing the absence of all others by a studied course of conduct, different from his usual habit, by removing the contents of the show case, and other valuable but not bulky articles to places where they could be saved, but not seen; by removing from his safe his most valuable papers, such as notes, etc., which is manifest, from their appearance subsequently, being unchanged and unlike those papers which were in the safe but not consumed; when we see him representing in his protest, supported by his oath, that those very articles which he thus removed and saved were consumed, and collecting, or endeavoring to collect, their value under his policy of insurance; and when we see him further magnifying his loss, by putting in his protest more goods than he had in the store at the time of the fire, and that too by means of a false invoice of stock previously taken ? It is said that Logan, who first suspected his fraud and guilt and exposed him to the agent of the insurance company, helped to make this false, invoice of stock, and also swore to the protest. This is true, but he explains it satisfactorily. . In taking the account of the stock, Logan took down the goods from the shelves and called off the quantities and cost marks, and Roney made the entries in the invoice, which was never carefully examined by Logan, till after the protest was filed and after his suspicious were excited. He then examined it and found that Roney had made false entries in the invoice by entering larger quantities and higher values than he had called off to him, and when he swore to the protest he believed the invoice had been made correctly. This, if not characteristic of a cautious man, is not inconsistent with an honest purpose. Again, it is objected that Roney was a lame man with one artificial leg, and that he was unable to get upon the roof to start the fire there, or to get up and put it through the ceiling, which was all closed. I think the evidence all shows that the fire did not start upon the roof, but that it originated in some way between the ceiling and the roof, and surely there could be no great difficulty in a lame man contriving, to get up to a low ceiling, as the character of the house would indicate this was, and knocking a hole through it, and jmtting any desired quantity of combustible material in the attic, and igniting it at pleasure. And it would also seem that four hours, from ten at night when Stevenson left him. alone in the store, till two in the morning, when the alarm of fire was first given, was time» enough for Roney, lame as he was, to remove the goods to the trunk and chest in the back room and set the fire in the mode suggested, or possibly in some other mode.
The appearance of .Roney, when first seen by those who . came to his relief after he gave the alarm, shows that he must have been previously prepared for the fire and was not taken by surprise, when it occurred. He was first seen immediately after he gave the alarm at the door of the back room trying to get out the trunk and chest about which he evinced extraordinary solicitude, while all else in the store seemed, to be forgotten. He said the back room was so full of smoke when he discovered the fire, that he was nearly suffocated, and yet in tins pressing emergency he took time to dress himself completely, for he was then dressed throughout, with his watch in his pocket and with his cane in his hand. How we would naturally suppose, that a man with his infirmity, alone in the house, awakened out of a sound sleep by the smoke of a fire, of the extent and location of which he was ignorant, and so suffocated as to endanger his life before he could get the door open, would take but little time in making his toilet, but would rather be content, to secure the artificial member as a means of locomotion, and then rush to the door out of the suffocation, and give the alarm. It is true, the witness says there was no smoke in the back room when he went in, but I am examining the story of. Roney, in connection with his appearance when first se'en. It may be, and undoubtedly is true, that he made false representations about the smoke, for the fire was above the ceiling and over another room, and smoke does not usually descend from a fire into a lower room, unless forced to do so, but he made this misrepresentation for a purpose.
I shall not pursue the subject further, although I have only adverted to some of the leading facts, which we think fully established by the evidence, -which go to show the guilt of Roney, omitting entirely to advert to a great multitude of corroborating circumstances, all tending to the same conclusion, nor have I felt it my duty, nor do I consider myself justified, to recite the evidence in detail by which those facts are established in our minds. We can entertain no reasonable doubt that Roney set this fire himself, and the decree of the circuit court must be affirmed.
This being a creditors’ bill and the funds in the hands of a receiver, a decree will be entered affirming the decree below, and requiring the payment of the costs, both in this court and the court below, by the receiver, out of the funds in his hands which the decree below awards to the insurance company, the court being of opinion that the costs should be paid out of that fund in consideration of the peculiar features of the case
Decree affirmed.