State v. Jones

106 Mo. 302 | Mo. | 1891

Gantt, P. J.

Defendant asks a reversal of the sentence against him on several grounds. He urges upon us, that, if he is guilty of arson at all, it is in the first degree, and not the third. The indictment in this cause is based on section 3515, Revised • Statutes, 1889, defining arson in the third degree. It is not claimed that the indictment does not specifically charge and advise the defendant of every element necessary to constitute an offense under that section but the contention of the defendant is that the state went further and proved not only that he had burned a barn, but a barn that, by reason of its having been usually occupied by a person lodging therein, had become within legal contemplation a dwelling-house, and, therefore, if he was guilty of any crime it was arson in the first degree.

Our statute, sections 3511 and 3512, is an almost perfect rescript of the Revised Statutes of New York, 1829, volume 2, page 657, sections 9 and 10. This statute was construed by the New York court in 1 Parker’s Criminal Reports, 252, in People v. Orcutt. In that case, the prosecution was for arson in the first degree. The proof disclosed that the building that was burned was a barn or stable in which were several horses. At the end of the barn was a room occupied as a sleeping room by the drivers and men employed in the stable. The court instructed the jury to inquire and find whether the building had been usually occupied by persons lodging therein at night, and whether at the time of the commission of the offense there was some human being therein, and that, if they were satisfied that the building had been thus occupied, the wilful setting fire to and burning it in the night time constituted the offense of arson in the first degree. That whether a building was a dwelling-house or not, depended upon the fact whether it was usually occupied by persons lodging therein at night, and not upon the popular understanding of that term. If a part of it was occupied as a sleeping room, it was sufficient although other parts might be used for other and entirely different purposes. The prisoner was convicted in that case of arson in the first degree. We do not find that this case has ever been overruled or criticised in New York, or elsewhere, and it seems to us to be the proper construction of this statute.

The intention and spirit of the law was to declare the felonious burning of any building usually occupied by a human being lodging therein arson in the first degree. It matters not how rude and devoid of comforts this dwelling may be ; if it is the usual sleeping place of a human being, and he is occupying it when it is feloniously burnt, the statute makes it arson in the first degree. The statute makes no distinction between the burning of a palace and the hostler’s room in this respect. In either case a human life is imperiled.

But the evidence is too meager in this record to enable us to form a conclusion as to arson in the first degree, and it is unnecessary, as it does not follow that when as in this case the indictment necessarily charges every ingredient material to, and necessary in, a charge of arson in the third degree, also, and the prosecution only asks a conviction of a lesser crime, that the prosecution must fail. On the contrary it is sufficient. This court held in State v. Kneeland, 90 Mo. 337, on a prosecution under Revised Statutes, 1879, section 1309, for stealing from the person in the night time, it was immaterial under section 1810, that the evidence showed the crime to have been robberry, since the latter offense is but larceny committed by violence from the person; and section 1821 expressly provided that it was no cause for reversal, that the evidence showed, or tended to show, the defendant was guilty of a higher degree of offense than that of which he was convicted. The law remains the same to-day (see sections 4104 and 4115), and, notwithstanding the evidence tended to prove a case of arson in the first degree, it will not avail defendant. He cannot complain, if the state waives the right to proceed for the graver offense, provided always it includes the one with which he is charged, and he is fully informed of the charge of which the state seeks to convict him.

There is no force whatever in the point, that because the pleader charged that the defendant set fire to, and turned, the barn, that he charged two crimes conjunctively. It is the usual and proper formula in an indictment for arson. Nor is there any merit in the objection to the verdict. It is sufficiently plain that the jury assessed his punishment at imprisonment in the penitentiary. Such objections in a cause so serious are almost frivolous.

The defendant rightly complains of the action of the court in excluding the evidence of Armstrong to the effect that the prosecuting witness Robertson had threatened to break up old man Jones, the father of defendant, and his family. The witness Robertson had denied using such language. It was competent for the purpose of impeaching him, and to show his animus in the prosecution. In a case so doubtful, and when it is so questionable, whether the corpus delicti even had' ever been proven, the defendant was entitled to this evidence, and it was error to exclude it. We can only conjecture that the court excluded it, because the threat was made nearly two years previous to the trial; but, as the case shows this animosity was continued down to the time of the fire, we think it was competent for the jury to have it and weigh it with the other evidence. It must be borne in mind that this prosecution has some unusual peculiarities. .A brother-in-law is the prosecutor, and the principal witnesses all come from his household. How far they may have imbibed his feeling toward his brother-in-law, we cannot tell; bub evidence showing this extreme hatred of defendant, and his father ’ s family is certainly competent for the purpose of weighing this testimony that comes from his immediate influence. For this error the cause must be reversed.

As this case must be tried again, we may, without trenching upon the province of the jury, remark that the corpus delicti in arson is not merely the burning of the house, but that it was burned by the wilful act of some person, criminally responsible for his acts, and not by natural or accidental causes. Winslow v. State, 76 Ala. 42; Johnson v. Commonwealth, 29 Gratt. 796; 1 American & Eng. Ency. of Law, p. 759; Phillips v. State, 29 Ga. 108. In State v. Dickson, 78 Mo. 438, this court held that proof of the corpus delicti involved two things, first, a criminal act; second, the defendant’s agency in the production of the act; and cited with approval the language of Mr. Justice Best, that “ where presumption is intended to be raised as to the corpus delicti, that it ought to be strong and cogent.” In a cáse almost parallel to this, the court of appeals of Virginia refused to let a verdict stand, on account of the insufficiency of the evidence. That case, like this, depended almost wholly upon a previous ambiguous threat and proof of tracks. The tracks, as in this case, were not traced to the house of defendant, nor were they measured and compared with the prisoner’s tracks. Upon the showing made in that case, the whole court agreed that the facts proved were plainly insufficient to warrant the verdict of the jury. Pryor v. Commonwealth, 27 Gratt. 1009; Grayson v. Commonwealth, 6 Gratt. 712; Smith v. Commonwealth, 21 Gratt. 809.

The corpus delicti must be established in every criminal prosecution before a conviction can be sustained. While it may be established by circumstantial evidence, the courts, and particularly the trial courts, should see to it that such evidence is cogent and convincing, and excluding all other reasonable hypotheses. Mere suspicion, however strong, will not supply the place of evidence, when life or liberty is at stake. For the reasons stated, the judgment is reversed, and the cause remanded for a new trial.

All concur.