State v. Jones
171 Mo. 401
Mo. Ct. App.
1903
Check Treatment
GANTT, P. J.

From a conviction of arson in Spring Garden, Miller county, Missouri, on the night of January 7, 1901, the defendant prosecutes this appeal. The prosecution is by information filed by the prosecuting attorney, y/

The defendant is-not represented in this court and consequently we have been compelled to read the entire record to ascertain what errors he relies on for reversal. The information charges that “at the county of Miller in this State on the 7th day of January, A. D. 1901, the defendant, Louis C. Jones, unlawfully, willfully, feloniously and maliciously did set fire to and burn a certain dwelling house of one James P. Thompson, there situate, in which said dwelling house there was then and there a human being; against the peace and dignity of the State.”

The information charges arson in the first degree as section 1871, Revised Statutes, 1899, provides that: “Every person who shall willfully set fire to or burn any dwelling house in which there shall be at the time some human being . . . shall upon conviction be

adjudged guilty of arson in the first degree.” It was . not necessary to name in the information the person or persons who were in the house at the time the crime was committed. [State v. Aguila, 14 Mo. 130; State v. Hayes, 78. Mo. loc. cit. 313.]

The testimony established that the second or upstairs story of the dwelling house which defendant was *405charged with burning, was occupied by James P. Thompson and wife as their dwelling, and also by some students, and a portion of the lower rooms by Dr. Devilbiss as a drugstore, and was situated at the village of Spring Garden in Miller county. The fact that the lower part was devoted to the drug business and only the upper portion was occupied as a dwelling house, did not constitute' a variance or failure of proof. As it appeared that a portion of the same building was occupied as a dwelling house and that at the time the offense was committed Thompson and his wife were sleeping therein, it fell clearly within the letter and meaning of the law although a part was used for the drugstore. [State v. Jones, 106 Mo. loc. cit. 310; People v. Orcutt, 1 Parker’s Crim. Rep. 252.]

The trial court excluded evidence that the students also were in the house at the time defendant set fire to it, and in this erred, but as it w$s at the request of defendant it does not of course afford him any ground for complaint.

II.,- The defendant made a written confession, and also testified on the preliminary trial of one A. P. Wadley, who was jointly charged with the offense, wherein he confessed that, at the instigation of Wadley and for the promise of twenty-five dollars, he set fire to Wadley’s house on the same night, and then fired the-Thompson residence to distract attention. After setting both houses afire he fled, took Mr. Hodge’s horse from Lumpkin’s stable, and rode it to within two miles of Jefferson City, and abandoned it, and walked into the city, where he was arrested next evening by the constable, Mr. Al. Smith. Defendant sought to exclude these confessions and admissions, but after a most patient preliminary examination in the absence of the jury the circuit court admitted them, and its ruling was clearly right. '

Outside of defendant’s uncorroborated evidence that he was induced by Mr. Son to make the confession by threats of a mob, and a promise of discharge if he would make it, the testimony showed his confession was *406entirely voluntary. Son was not the officer in charge of him, nor present when he confessed before Justice Winston. Constable Smith, Sheriff Henderson and the justice all concur in testifying that no immunity was promised defendant to induce him to confess and it has never been ruled that merely because the defendant concluded to swear that his confession was obtained by duress or promise of immunity the confession must be excluded. Prima facie the confessions and admissions were admissible, and unless they were shown to have been obtained by promises of clemency or extorted by fear of violence from a mob, they should have been received in evidence. [State v. Patterson, 73 Mo. 695, and cases cited.] The trial court pursued the approved course in mating a preliminary investigation of the circumstances in which the confession was made before permitting it to go to the jury. At the time defendant testifies that Son made the promises of leniency to him, Son was not in charge of him as an officer. Son had not arrested him. He had been apprehended by Constable Smith, and was in Smith’s charge, and Smith and defendant agree that neither Smith nor Henderson, the sheriff of Cole county, made any promises to him.

It-was ruled in State v. Patterson, 73 Mo. 695, that it is now the settled law that a confession to be inadmissible must be made to an officer of the law in consequence of improper influences exerted by him and if no threats of harm or promise of worldly advantage be made by such official, or by the master of the accused when directly concerned, the confession is admissible. It was moreover fully established that the justice of the peace, on Wadley’s preliminary trial, advised defendant of his right not to testify to anything that would incriminate him, and Wadley’s counsel also advised him to that effect, and he said he understood that, and yet testified that he set fire to the two houses.

The fact that defendant testified he made the confession under a promise of discharge or through fear of a mob did not overcome the prima facie case and the *407testimony of the officers. He had the full benefit of his evidence before the jury.

The court properly required that all the circumstances attending the confession should be proven to the jury, and then submitted the confession along with all these facts to the jury, and required them to find whether the defendant in fact made the confession voluntarily. [State v. Brennan, 164 Mo. 487; State v. McKenzie, 144 Mo. 40; State v. Patterson, 73 Mo. 695.] The confession established defendant’s guilt beyond all question and was corroborated.

The court, however, should have permitted the confession of defendant that he burned Wadley’s house that same night as a part of the same scheme and also that he took Hodge’s horse. Evidence of other crimes is admissible where it tends to prove the one under investigation. This is now well-established law. [People v. Jones, 123 Cal. 65; 3 Cyclopedia Law and Pro., 1007, and cases cited.]

The court gave an exceedingly liberal set of instructions in behalf of defendant, both as to the confessions and alibi. The prosecuting, attorney’s remarks were not out of the record. The evidence was ample to justify the verdict and no error appearing, the judgment is affirmed.

All concur.