228 Mo. 252 | Mo. | 1910
This is a prosecution commenced on the 30th day of January, 1908, by the prosecuting attorney of Howard county, by filing in the circuit court of said county an information duly verified, charging that the defendants “did unlawfully, maliciously and feloniously set fire to the dwelling house of Franklin Smith, then and there situate, in which dwelling house was then and there a human being.” Defendants applied for and were granted a change of venue to Boone county. Afterwards in the circuit court of Boone county the defendants were duly arraigned and pleaded not guilty. The defendant Stewart filed a plea of former acquittal, to which the prosecuting attorney demurred and the demurrer was sustained.
The State’s evidence tend'ed to show that prior to the commission of the offense of which defendants were convicted, Enoch Bobbitt, the father of the defendant Everett Bobbitt, had become involved in a litigation with one Franklin Smith over the possession of a tract of land belonging to Enoch on which Smith was living. The evidence tended to show that Enoch Bobbitt had made numerous threats with reference to the means he would use to get Smith off of his premises, and that in the execution of these threats he enlisted, through his son-in-law Robert Goodwin, the services of Rollie Kivett, Noble Peacher, Everett Bobbitt, his son, Robert Goodwin and Joe Stewart. Stewart was working for Everett Bobbitt at the time. According to the testimony of Kivett and Peacher, on the night of March 19, 1907, the above named parties met at the home of Robert Goodwin; after spending the evening in playing cards and drinking whisky, the party adjourned to the porch to complete their arrangements for burning Smith’s house. A jug of oil procured on the preceding day was at hand, and this, together with a tin bucket, two sacks, some waste, two revolvers and a bottle of whisky, constituted the materials selected for the end in view. The testimony then tends to show that Kivett, Peacher and the two defendants herein, Joe Stewart and Everett Bobbitt, left Goodwin’s house at about eleven o’clock that night and went directly to the home of Franklin Smith and arrived there about an hour and a half later. They
Mrs. Smith testified that they stayed up that night until about half past twelve, when they all retired to bed. Vaughn Smith and Mr. Sartain slept upstairs in one room and her daughters in another room. She and her husband had been in bed but a few minutes when she saw a light — just a flash; she thought it was a lantern; she saw its light out of the window on the east side, and she thought probably Mr. Sartain had gone to see about his horse, but it was only a minute or so until a bright light was flashed and she jumped. The kitchen door was to her right hand and when she got out of bed she jerked it open and exclaimed “Oh Lord, Frank, the house is afire!” Whereupon Smith jumped out of bed without his pistol, then came back and got his pistol and came on out. When they got to the outside kitchen door she unlocked it for him; she went ahead of him and he passed some little distance and she was trying to knock the pole of fire down when he turned and looked back and said, “Do not knock that pole down.” Just as he said that the first shot was fired and he looked back over his shoulder and said, “They have shot me,” and that was the last word
Vaughn Smith testified that he heard his mother when she called fire .and he rushed out. As he went out of the hall door he heard two shots fired, and before he could get down stairs she said that his father was shot. He rushed out to where he was and his father handed him his revolver and said, “Be careful with it, it is' cocked.” He picked his father up and carried him about half way to the house and he asked him, to lay him down; he told him that the men went off in a southwest direction from the house. The witness then went up the ladder and put the fire out. He made an examination of the roof where this fire had been. There was a sack lying there and some waste. The pole was not up against the porch when he got there. The fire had burned into the shingles of the roof and the pole had been knocked down before he got there. The sack had the letter “B” on it.
Mr. Sartain testified that he was aroused after he had gone to sleep that night by the screams of a woman, and in a few minutes he heard a couple of shots. He went down stairs just as they were bringing Frank Smith into the room and he went to take care of him and was not out of doors at all that night. The next morning he examined the roof but did not find anything on it; the sack had been taken off. He found
Kivett testified that Everett Bobbitt and! Joe Stewart saturated a sack with coal oil in that bucket, and he, the witness, took a piece of waste and tied it on the pole and saturated that with coal oil. “We sent Peacher around toward the barn to draw the dog’s attention, to keep him from watching us. Joe Stewart and Everett and myself went on up in the yard and on the porch of the old kitchen. We laid the sack on the pole and then put it upon the porch of the new kitchen, then we struck a match to the waste on the pole and touched the sack off with that.” He testified that he helped to put this stuff on the end of the pole; that he put the waste there; that he had brought.the waste in his pocket. It appeared that Peacher had been arrested for this offense and pleaded guilty to attempted arson. Kivett had never been arrested or tried for any part in the affair. It also appeared that the defendant J oseph Stewart was arrested and tried on a charge of murder in the first degree for killing Franklin Smith, and was acquitted by the jury in Howard county.
The defendants testified in their own behalf that they were not at Smith’s house that night, and knew nothing of any conspiracy; that they were at the house of Robert Goodwin at ten o’clock that night, when they left and went directly to the house of Everett Bobbitt, arriving there at 11:15, and remaining in bed until they were called by someone over the telephone, telling them that Franklin Smith had been killed. Their statement as to when they left Goodwin’s house was corroborated by Robert Goodwin and his wife, and their statement as to when they arrived at Everett Bobbitt’s house was corroborated by Everett Bobbitt’s wife, and his mother Mrs. J. E. Bobbitt.
The giving and refusing of the instructions will be considered in the course of the opinion. '
In State v. McCaffery, 225 Mo. 617, we had occasion to consider the effect of section 2361, Bevised Statutes 1899. In that case the evidence was conclusive that the building was set on fire by somebody, and when the firemen arrived the whole downstairs back of the bar was afire, and after the fire was extinguished rags and burlap saturated with coal oil and partially burned were found immediately under a large hole made in the floor of the saloon by the fire. There was no evidence tending to show that anyone except the defendant and his companion in that case had anything to do with the offense, and there was strong evidence tending to show that the defendant himself was the perpetrator of the offense, and we held that there was a completed offense of arson and that the verdict in the case, for attempted arson, was unsupported by the testimony, and that there should have been no instruction on attempted arson. Counsel for the defendants invoke the decision in that case in support of their contention here that this was a completed offense and that the court erroneously instructed for the attempted arson, whereas the State insists that it was a question for the jury under the testimony in this case whether the defendants attempted to set the
Section 2360, Revised Statutes 18991, provides: 1 ‘ Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall
After a careful consideration of this testimony, in our. opinion there was evidence from which the jury might properly have drawn the conclusion that the defendants had fixed the sack on the pole and set the pole up by the house projecting over the roof and that at the time Mrs. Smith appeared on the scene the fire had not yet been communicated to the roof, but that her act' in knocking the pole down, dropped the burning sack upon the roof and in this way the
II. It .is insisted that the court erred in permitting, the prosecution to introduce threats made by Enoch Bobbitt. The objection to these threats is that they were made before there was any evidence that there was any conspiracy between the elder Bobbitt and these defendants. The testimony of three witnesses, to-wit, W. M. Bodle, T. Gr. Miller and1 Richard Wills, is included in this assignment. Thus Bodle testified that on the third Saturday in February, 1907, he heard Enoch Bobbitt say that; if he could not get Smith off of the farm without a lawsuit, he would drag him off. Miller testified that just a few days before Mr. Smith was killed, Enoch told him that he would get Smith out of the premises if he had to get him out with a pair of mules. Now as against the defendant Everett Bobbitt, these threats were clearly competent, as the evidence tended1 to show his complicity in the conspiracy as early as the 16th of February, 1907. The objections as to the testimony of these witnesses were not made separately as to the separate defendants.
As to the testimony of Richard Wills, he testified that he heard threats made by Enoch the latter part of February, 1907. It is true that later on in his testi
III. Error is predicated upon the action of the
IY. As to the instructions. Defendants assert there was absolutely no testimony upon which to base instruction number three given by the court, submitting to the jury whether defendants were -guilty of an attempt to commit arson, because the completed crime of arson was committed. We have already ruled adversely to this contention in the consideration of the sufficiency of the testimony to sustain the verdict of guilty of an attempt to perpetrate the offense. There was no error in submitting this view of the evidence to the jury.
Y. Instruction number eight given by the court was in the words following: “The court instructs the jury that the only question for you to decide is the guilt or innocence of the defendants Everett Bobbitt and Joe Stewart and that it is not within your province to consider the guilt of Rollie D. Kivett or Noble Peacher except for the purpose of determining their credibility as witnesses in this case.”
Defendants assail this instruction as utterly inconsistent with the other instructions, notably number two, which submitted to the jury whether Kivett and Peacher entered into a conspiracy with these defendants to set fire to the house of Franklin Smith, and if they so found, then the act of one of said conspirators in prosecution of said conspiracy and while acting in
The instruction is perhaps unhappily expressed, but after all it meant no more than that the jury were to pass upon the guilt or innocence of defendants in this trial, which was the fact, as they alone were on trial, but they could consider the guilt of Kivett and Peacher as affecting their credibility, and this also was correct. That they were guilty there was no doubt, as each testified to his own guilt, but they were not on trial, and the jury could not punish them, although they could weigh their evidence in the light of their confessed complicity in- the crime.
VI. It is earnestly insisted by counsel for the defendants that the circuit court erred in refusing to give an instruction on alibi which defendants attempted to establish by their testimony. This instruction was in the usual form and in substance told the jury that if the evidence raised a reasonable doubt in their minds as to the presence of the defendants at the time and place where the crime was charged1 to have been committed, they would acquit the defendants. The court in its fourth instruction had - already instructed the jury that if they believed from the evidence that the defendants Everett Bobbitt and Joe Stewart entered into a conspiracy, agreement and common design with Rollie D. Kivett, Noble Peacher, Robert Goodwin and J. E. Bobbitt or any of them to
That this instruction in this case as requested by the defendants, should not have been given in the form in which it was asked, we have no doubt whatever, but the serious question presented is that, regarding this instruction as a prayer for a proper instruction on alibi (State v. Fox, 148 Mo. 527), should not the court, in view of the claim made by the defendants that there was in fact no conspiracy and that the testimony offered in their behalf tended to show that they were not present at the time the attempt was made to burn the house, in addition to directing the jury that if they found and believed from the evidence that there was a conspiracy on the part of the defendants and the other parties named, or some of them, to burn the house, they might find the defendants guilty, even though they were not present at the time of such attempt, have given a proper instruction that if they found there was no conspiracy, and they had a reasonable doubt as to whether the defendants were present at the time and place of the commission of the crime, they should give the defendants the benefit of such doubt and find them not guilty? We are clear that it should. The necessity for instructing on the evidence tending to prove an alibi grows out of the two theories on which the case was submitted to the jury by the court on the part of the State: one, that the evidence tended to show the actual presence and participation of the defendants in the attempt to burn the said house, and the other, a conspiracy, in which their
VII. There was no error in refusing the instruction indicated by the letter “I” as requested by the defendants. The court had fully covered the proposition of law as to the manner of weighing the testimony of the accomplices in its instruction number seven.
The defendants’ refused instruction “K” was fully covered by the court’s instruction number six.
As to instruction “L,” requested by defendants, what has already been said on the subject of alibi demonstrates that it would have been error to have given it, unmodified and unexplained.
Instruction “J” prayed by defendants was properly refused. Instruction number nine given for the State fully covered the declarations and statements of the alleged' conspirators and when such statements and acts would bind each other.
We have considered all the alleged errors which are urged by both defendants. It remains now to consider the propriety of sustaining a demurrer to the plea in abatement filed by the defendant Stewart. In substance the plea averred that this defendant had been tried on an information for the murder of Franklin Smith on the 19th day of March, 1907, and acquitted on said charge; that in said murder case the State prosecuted him on the theory that he was guilty of murder in the first degree for killing said Smith while burning or attempting to burn his house; that the house that he is now charged with burning is the same house that the State’s witnesses testified he was burning at the time he shot and killed Smith; that the arson offered in evidence in said murder trial was a necessary ingredient of the said murder. The State demurred and the court sustained the demurrer to said plea. We think it is clear that the court properly held
As the judgment must be reversed and the cause remanded for failure to give a correct instruction on alibi, we refrain from any expression on the merits of the case further than to say the evidence tended to establish a case for the opinion of a jury.
Judgment reversed and cause remanded to he tried in accordance with the views herein expressed.