264 Mo. 408 | Mo. | 1915
Defendant was convicted of arson in the third degree and sentenced to two years in the penitentiary. The amended information is in the usual form and charges him with burning a barn belonging toi Willard Potts and Susan Potts on November 12, 1913. On the night of that day three fires occurred between the hours of 11:45> p. m. and 1 a. m., and all within a very short distance of each other and of the Chicago & Alton station in the city of Mexico. The first fire was in a coal or wood shed back of Creasy’s second hand store; the second in a barn back of the printing company’s place of business; the third in Potts’s barn north of the railroad, about a hundred and fifteen or twenty feet from the station. A few minutes before the first fire the defendant went into Genrich’s restaurant and got some matches, which was a usual thing for him and others to do. A few minutes later he was seen running along the street looking back, then running into an alley. Then followed the first fire, and after twenty or thirty minutes the second fire broke out. Defendant was seen at all the fires. At the second fire he was heard to say to his uncle Tom Cook, “Let’s leave here.” Just before the third fire he got matches
The last fire was the one for which defendant was convicted. State’s counsel, over defendant’s objection, was permitted to include the first two fires in his statement to the jury and to introduce evidence in regard to them. There was evidence that a train came in just before the last fire and that the wind was from the southward, blowing from the tracks towards the barn, and that at times locomotives had been known to throw sparks 25 feet high.
There was evidence that the last fire began in the • loft of the barn in some baled hay or straw.
There was no evidence showing motive for the deed. Defendant was arrested that night, and the next morning he stated in the presence of the prosecuting attorney, sheriff and others, that he set all three of the fires. The State’s witnesses stated that no improper method was used to obtain the confession, and there was no evidence to the contrary.
The court gave the usual instructions including the one on the subject of statements made by the defendant out of court. The fourth instruction told the jury that the defendant was presumed to be innocent until his guilt was “shown” by the evidence beyond a reasonable doubt.
Just before the trial began,. the State was permitted to amend the information by interlineation so as to show Susan Potts as one of the owners of the barn. Defendant then orally asked that he be accorded a preliminary examination on the information as amended. The request was refused, but there was no motion in regard to that matter.
“A confession of the crime charged, made out of court by the accused, must be supported by independeD-t proof of the corpus delicti; that is, by proof that a crime was in fact committed. ’ [State v. Young, 237 Mo. l. C. 177, and cases there cited.]
In State v. Knowles, 185 Mo. l. c. 177, it was said that full proof of the corpus delicti, independent of the confession of the defendant, is not required; and that it is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of defendant’s guilt.
Appellant contends that, outside of the alleged confession, there is no evidence of the corpus delicti. In connection with that proposition it is urged that the evidence as to the two other fires was improperly admitted. The general rule is that evidence as to other fires at or about the same time and place is inadmissible, “but if it tends to directly connect defendant with the burning alleged in the indictment, to establish intent, or to show the incendiary origin of the crime, it may be received. [3 Cyc., 1007.] In State v. McMahon, 17 Nev. 365, testimony as to ten other fires within two months in the same town was held proper in order to show that the fires were of incendiary origin.
In England, in Reg. v. Dossett, 2 C. & K. 306, the defendant was charged with setting a hayrick on fire by discharging a gun close to it. Evidence was admitted showing that on another occasion defendant was seen with a gun in his hand near the rick which was then on fire. In Rex v. Long, 6 C. & P. 179, decided at nisi prius in 1833, the defendant was charged with burning three hayricks, each belonging to a different
In Reg. v. Gray, 4 F. & F. 1102, the prisoner was accused of burning his house for the insurance. Evidence was admitted to show that twice before defend^ ant had collected insurance for successive fires, in order to show that the fire in question was of incendiary origin.
In Sawyers v. Commonwealth, 88 Va. 356, it was said: ‘‘Among the chief indicia which go to substantiate at once the corpus delicti and the guilt of the prisoner in a case like this, say the authorities, are the circumstances that the fire broke out suddenly in an uninhabited house, or in different parts of the same building, and that the accused had a cause of ill will at the sufferer, or had been heard to threaten him. ’ ’
One fire unexplained ordinarily raises no presumption of incendiary origin. Two at the same time and place put people on the alert to know why they occurred. Three are sufficient to put the police on the track of the supposed incendiary. While those fires were bursting out ope by one, the defendant twice procured matches near the fires. True, as the evidence shows he often got matches in that way.' Each of those fires, and each of those acts of procuring matches considered solely and by itself, is perfectly free from a suggestion of guilt. But when they are compounded, and in that compound the defendant can be seen running along the street at midnight, looking back, we are forced to say that here is proof of the corpus delicti independent of defendant’s confession, and that there is ample evidence of defendant’s guilt.
II. The point is made that the evidence fails to show any motive for the defendant to commit the crime. Absence of apparent motive does not authorize an acquittal and does not call for an instruction on that subject. [State v. Brown, 168 Mo. l. c. 473; State v. David, 131 Mo. l. c. 397.] In State v. Morney, 196 Mo. l. c. 51, the judgment was reversed and defendant discharged because there was neither motive nor substantial proof of guilt shown by the evidence.
III. Instruction 3 given for the State on the subject of statements or admissions made by the defendant out of court was in accordance with the form approved in State v. Wisdom, 119 Mo. l. c. 552; State v. Howell, 117 Mo. l. c. 323, and State v. Merkel, 189 Mo. 321.
Appellant says that such instruction is erroneous because it- fails to caution the jury as to the so-called confession of defendant. It is enough to say that the instruction as given was correct. It would have been proper for the court to give a cautionary instruction on that subject, but none was asked by defendant, and the court’s attention was not called to that point either on the trial or in the motion for a new trial. The following additional objection to that instruction is made in defendant’s brief:
“Said instruction was erroneous for the reason that it states that any statement of the defendant against himself was presumed to be true, which is not correct in so far as it relates to extrajudicial confessions unless corroborated by other evidence, which limitation was not incorporated in said instruction, nor was the jury cautioned with reference thereto. ’ ’ The same point was made in State v. Knowles, supra, and ruled against the appellant.
XV. The refusal of a preliminary examination will not avail to reverse the case in the absence of a proper motion calling the court’s attention to that fact. [Ex parte Buckley, 215 Mo. l. c. 99; State v. McKee, 212 Mo. 138.]
The use of the word ‘ ‘ shown” in place of the usual word “proved” in the instruction as to presumption of innocence does not impair the mer- ...... .. its of that instruction.
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.