Kennedy V. State, 323 S.E.2d 169 (Ga. App. 1984)

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Title: Kennedy v. State, 323 S.E.2d 169 (Ga. App. 1984)

Facts: A fire was evolved on September 23, 1981 in a log cabin due to a hot plate. The hot plate was left on with an accelerant and kerosene near by. The owner of the cabin, Henry Xavier Kennedy was convicted of Arson as he obtained an insurance policy for $40K on the cabin five days prior to this fire and police found evidence that the construction business owned by Mr. Kennedy was losing money, and Mr. Kennedy's alibi was insufficient to eliminate him as a suspect.

Issues: Throughout the trail process on behalf of the court the inquiry for exceptions to the charge inaccuracy developed regarding instructions. The appellant was seeking a claim based of the defense of his alibi.

Decisions:
a.The court did not find any errors in the defense's response to exceptions, as counsel did not state any exceptions when inquired. During this inquiry defense counsel stated, "I don't believe..." which can be interpreted as an attempt to find error in exceptions to charge. Yet Georgia law indicates error cannot be found when induced by the appellant. Regardless, the court found no error in the charge of exception by the trial court. b.Appellant believes the court hindered his ability to provide a defense based on his alibi that he was not present at the scene of the crime when the fire occurred and that he claimed the fire resulted by way of accidentally leaving a hot plate on. The prosecution proved the appellant conspired to ignite the fire later when he was not present. Prosecution also proved that by pouring the accelerant around the hot plate with the power on, is not indicative of an accident. The defense must prove "impossibility of the accused's presence," for which the court found no basis for error in the original trial. c.Appellant claims error regarding his defense of accident using the prosecution's wording as a basis for the charge. The trial court indicated the reference of the fire as being a scene of a crime and/or offense is an unsuitable reference. The court found no error in the wording describing the fire. The reference does not damage the defense's ability to provide the defense of accident.

Reasoning: The trial court referenced various cases to determine a basis for error regarding wavier of appeal or new trial, defense of alibi, or defense of accident. The trial court found that the defense counsel stated no exceptions when the trial court inquired; therefore, the court finds no error. An alibi indicates the impossibility of the accused's presence and the appellant contends that prosecution violated this by using "possible" in the argument charged to the jury. The court did not agree with the appellant's opinion of misleading the jury through its wording of the charge. Appellant's claim of error related to defense of accident did not apply due to the evidence collected by the police. The burn patterns indicating the use of an accelerant and the hot plate left in the on position. When classifying the fire as "incendiary," one must conclude, the fire is a result of intent. The appellant has no grounds to base an appeal in this area because of a lack of evidence to support the claim of accident. Mr. Kennedy's actions of renewing his $40,000 insurance policy almost immediately prior to the fire and the evidence regarding his failing construction business suggest motive. The evidence suggests that someone left the hot plate on, poured kerosene around the hot plate to ignite at a future time. This evidence suggests that the only person to gain from the fire is Mr. Kennedy.

Dissenting opinions: believe the jury convicted the defendant of arson because the evidence and information obtained during the investigation suggests he planned the fire, set up the device (hot plate) and established an alibi in order to receive the insurance benefits. It is unlikely that one would pour or spill kerosene around a hot plate, leave it on and not clean up...
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