*1 7'92 turned, Moss, time, shot the second air;” and that he as Moss
in the (the defendant). According him back toward his side and thirty-five testimony, “thirty Moss was defendant’s own feet” And, shot. according the' first him when he fired to the testi mony Howard,-she looking Fteda the defendant’s witness fired, any she “didn’t weapons the first shot was see Moss when anything “didn’t make hands,” and he movements or in his defendant) (the anything going to strike at him or 'throw like he defendant).” evidene'e, in- (the This him connection stated, a clear jury hereinabove made oh other evidence first'degree, and the of murder evidence'as a whole the issue support verdict of the amply jury. discus sufficient [See Jenkins, 327 Mo. l. c. 332, in State v. S. W. sion of tiie evidence ] (2d) l. c. 435. influenced proof that V. The record discloses in the that effect assertion to mere prejudice. The passion and avail. proof, is without absence of trial, for a new motion find no error. carefully proper and the- record examined have We approved form. judgment- are in information, verdict All concur. affirmed. judgment Appellants. Gray, V. L. William v. The State (2d) 1024. S. W. Two, June Division & Sharp Baynes appellants.. *2 K. James respondent; Attorney-General, Shartel, Stratton ' n
Coolidge of counsel. twenty years FITZSIMMONS, Appellants, men about C. *3 age charged in- tried, of' in an when with the crime of arson Attorney County. by Prosecuting formation the of filed New Madrid They guilty at two punishment were found and their was assessed they years judgment penitentiary. From the sentence and sufficiency of appealed. principal question decision is the for presented by the in substance evidence. The case the was a 31, stood night, 1930, as follows: On Halloween October Canalou, box-shaped house on D. L. Fisher’s farm over south of County. fence’’ New' was “in the corner the Madrid The house of Ingram by Fisher a rented from John at crossroads. farm was the un- Summers, have the and W. H. and Fisher let them use On hay soy and beans. occupied house at the crossroads to store 111 night house the Ingram fire. and had the of the Summers hay had soy hay beans. The pulled bales of and several loads of on days the beans put 31, and in a few before been October dwelling farm about day. Ingram and Summers lived and Ingram retired had yards from or the storehouse. o’clock, 8:30 But about asleep the of October on He aroused light burning storehouse. the awakened of the fire. the hurried to just gone the two who to bed and Summers the soon others and neighbors, met the four or five On Ap- on horseback. came, others some on foot and number of a dozen west south and and a half who lived about a mile pellants Ingram testified- among spectators. later crossroads, were the fifteen or homes about their appellants arrived direction of the twenty Summers fixed their after But minutes he reached the fire. got thirty Ingram coming there and at and minutes after he say, appellant Gray overheard the fallen in. Summers house had fire didn’t it?’’ On watching while fire: a hell of the “It made big fire. cross-examination Summers admitted make it did eight o’clock, About Summers went and before the outdoors dwelling the persons house and heard voices several group At for he heard crossroads. least some were mounted recognized Among movement the horses. voices he appellant Blankenship. the talk- paid But Summers no attention to ing halting place for the crossroads was a favorite corner many night. passing people and there were abroad Halloween Virgil Ford, age appellants, that he a lad about the testified Blankenship his about sundown appellant rode horse to the home of horse, on that his Halloween. Soon came Nobel McGrrire on gathered. youths men In a short time the went to Crabtree, from there companion home of a named where, place Oak and Ford for a called Charter and‘McGuire started Gray reported, it was to be rode Ford dance was held. behind storage They house Blankenship passed behind McGuire. scene of the and went about a mile and a half further to the dance. being back the crossroads. held and rode But dance appellants, stopped four for awhile and There the. talked toward Gray, got off horses and started south galloped the east. homeward to their homes while Ford four rode back testified as the Ford direct examination storehouse, approached the crossroads and toward the ’ ‘‘ V The we to set it said to the other: Are which of the answer was: “Yes.” Ford did not know' On question or which answered. cross-examination asked appellants: of one of about this statement testified further that one one of When first told it stated *4 A. ‘Yes?’ you going it?’ the other one said: to do and said: ‘Are Yes, sir. A.
“Q. saying, ‘Set?’ Well you When did first think about ‘Yes.’ said other one going it, and the talking about, w'e to do boys ago,you one of “Q. you said When a while first testified ItA. that? it,’ you do said, going come ‘Are we to set how the same. is-all
“Q. Yes, A. It is all the same? sir.
“Q. says boy it,’ When a ‘Are rve going to do it is all the-same In Way ‘Are we to set it?’ A. going it is. saying, a “Q. boy actually is, going to it?’ rvhat said ‘Are we do But Yes, A. sir.” mile, the cross- had ridden about half Ford and McGuire walking rvhen first observed had and were roads and dismounted go they did not back. the fire. But the illumination caused substantially as did about testified Blankenship’s house, their visit assembly young men at Crabtree’s, the horseback dance, ride their return to separation crossroads and their there after some conversation. On direct examination McGuire testified: n “Q. you passed When this house did either one of the defend- say anything ants Only about the house ? A. help asked us to burn it.
“Q. Tell the what riding along said. A. We was boys, T know which one, don’t if asked me I would ” help said, I burn ‘No.’ But on cross-examination testimony McGuire contradicted this this manner:
“Q. you you Don’t know that never said word such you conversation as No, that when A. sir. testified here before? “Q. you boys said, Isn’t this said, what ‘Are we that one of the going that,’ ‘Yes,’ to do said, and one of wasn’t boys the other you (No answer.) what to? A. testified
“Q. Come clean with it. A. positive. I am not “Q. you said, That is what isn’t it? A. I know. don’t “Q. boys said, You were sworn down here and asked what you boys to do testified that one of said, you ‘Are that,’ boy said, and the ‘Yes.’ down you That is what testified Yes, here? A. sir.
“Q. asking you say anything And didn’t about either of the anything, you? to burn did A. No. “Q. Why Why you? didn’t A. didn’t I?
“Q. Yes? A. If right, right, I is what told why I that is didn’t. A. right What you preliminary said at the then? Yes, sir. your It was fresher in mind at that time? group James, Charlie with a building. burning bridge men at a two a half miles from ’' nn He saw galloped fire, passing the flames and off to the n way. along road. appellant
house on the He did not meet either taken He admitted on cross-examination have could thereby which pathway across field and avoided the road over preliminary traveled. James also testified about the time of the Gray Uncle inquired appellants, examination of of James whether (Ingram) subpoenaed answered Nobel John McGuire. James thing, Gray know and said: is one sure that he did not “There two which going to don’t know penitentiary two of us is *5 unfriendly cross-examination it is.” James admitted on that he was appellants. to appellants Goodman testified to some- conversation
^Ed Hhe after the fire as follow's: you Did talk A. either one them? ' ‘‘Q. you Which one did to? talk A. Both of them.
“Q. you Did either one them make statement to about they house? my this A. Well it . seems mind did time. . . .one They something burning house, said about if said did get they away, they better make a burn Billie said didn’t Blankenship did. they Was that what said? A. At that time. they say did What it A. It like— later? seems
something like the first January, January no the last or the they February first of talking Ingram. at court that to Mr. “Q. What they, say said, did then? Billie think he is /1 ” (cid:127) anything.’
afraid to do .. .
This against was the State’s appellants. .. : .. On appellants their own behalf story told the same substance as McGuire, doings Ford and State, witnesses for the the. -of the youths four on the separation the fire down to at the their crossroads. Each denied the statements credited to or several appellants by Ford, other of the or both to James. they house, denied that set They fire to the testified that after parting they homes, the' crossroads went south toward their taking a short cut the road across a. field. Before reached They home saw afire the house and then to returned the* cross- Testimony reputations roads. was beside of. point. reputations Witnesses who testified community good in which- proved, Was lived cross- examination, expressing personal opinions. to be their own While reputations witnesses who testified that were bad Gray, disclosed on cross-examination were criti- cutting up fighting cised in their in’ church community Appellants dances. at the close of the whole case offered an. instruc- of a the court tion in the nature demurrer which overruled. demurrer, Appellants
I. their have been contend that should -sus . The tained for want of evidence. substantial hand support urges was sufficient substantial rightly and -that the demurrer of the case to the submission very nature of the crime or’arson of which .overruled. n plants necessary were convicted siich it' becomes rely cases, most, upon if not in circumstantial many, ^^HLin Santino, of the accused. State v. to establish ] But what is circumstantial evidence? W. l. c. 977.] S. *6 case, gave jury in court, an instruction to this trial cojjm is definition these words: Circumstantial
ventional pjH cases, which, circumstances, from in certain of certain facts and usually may infer other facts which and reason and connected according mankind; ably experience follow to the common of by may by well proven crime be circumstantial evidence as as direct testimony eyewitnesses; in evi but the facts and circumstances with the defend dence be consistent and with should each theory in any of his ant’s inconsistent with reasonable nocence.
By that circumstantial evi standard was there this to dence warrant the conviction of or the submission jury? was place ease to think In there We not. the first incendiary testimony, direct or circumstantial that the was of fire a fire origin. In arson is to show that an case it not sufficient which the proof There be circumstances from occurred. must fire was jury will authorized to find the further fact that be (Mo.), by agency of some one. v. Berkowitz caused the criminal [State origin incendiary (2d) 29 S. W. 150 l. c. Proof of Mo. 153.] oorpu's delicti. testi is an essential element In addition to mony tending incendiary origin, there prove to that the was fire guilty circumstantial, agency of evidence, must be direct or of the case, presence appellants with the accused. In this of the two neighborhood build two of the State’s of the burned witnesses shortly ing was, testimony, own by before State’s part outing the Halloween on which the four lads embarked. by and McGuire and ascribed to statements by wit prior threats were contradicted these treated the State appellants appeared nesses on fact that cross-examination. The twenty thirty among spectators of to minutes the fire guilt. discovery than its more consistent with innocence testimony persons Were Arson cases abound with accused farf ac-¿ when the fires occurred. If Ford and McGuire had been away cused, although to fire the fact that did not return country-side hurrying although it and saw had horses and ¡ agency. guilty have been a circumstance of to the crossroads would Summers, strong suggestion in the that Mr. record And pair prosecute. McGuire, which Nobel was uncertain riding night, on lads who Halloween State, Billy testified that met examination his direct Blan^ following Friday on kenship Tuesday which fire occi^H proceeds: The examination Billy say anything yon At time did Yes, sir,
about the fire? A. what I asked me do it. A. Yes, Is that all? and he said that Mr. Summers about
half is all. accused us *7 Said that Mr. Summers about half accused of it? Mr. Summers.” What did do? A. went to see uncer- failure of and McGuire to return and Summers’ prosecute solely emphasize tainty whom to are mentioned order to case, presence under the circumstances of this discovery with their fire was consistent sometime story and a half gone nearly to their homes a mile fire. No back, had not caused the away and had come or intended. We are or McGuire is meant of Ford innuendo sustaining in not the demurrer the trial court erred opinion opinion We are also of at the close of the whole case. or scintilla of evidence that, owing substance to the absence discharged. Accordingly it should be against appellants, judgment below be reversed the defendants ordered that Westimes, Cooley CO., concur. discharged. by FitzsimMONS, C., is foregoing opinion
PER CURIAM: The judges All of the concur. the court. opinion of adopted as the (2d) S. W. Appellant. Harbeston, Jess The State v. Two, 10, 1932. June
Division