Lead Opinion
Albert Paglino was found guilty of a homicide in the perpetration of arson, declared to be first degree murder, Section 559.010 RSMo 1949, V.A.M.S., and the jury assessed his punishment at life imprisonment. See Section 559.030 RSMo 1949, V.A.M.S. He has appealed from the ensuing judgment. This is the second appeal in this case. See State v. Paglino, Mo.Sup.,
The first contention on this appeal is that the trial court erred in overruling appellant’s motion for a directed verdict of acquittal. Therefore, we shall set out in detail the evidence presented on behalf of the state.
On April 4, 1954, at 11:09 p. m., appellant registered at the Warwick Hotel in downtown St. Louis using the assumed name of Albert C. Lewis. There was no evidence that he actually stayed at this hotel after registering in and until he checked out at 3:23 a. m. on April 10 under circumstances to be mentioned later. About midnight on April 5, appellant appeared at the St. Louis Tourist Court, a motel on U. S. Highway 66 in St. Louis County, and registered as a guest using his correct name. He listed on the registration card the make and license number of his 1950 Nash automobile. The manager of the motel, Mr. Stark, took appellant to cabin 5, turned on the lights and showed the cabin to him. There was no one there, and the cabin had not been used for “quite a few nights." Mr. Stark did not see anyone other than appellant in his automobile.
Cabin 5 was part of a “duplex.” The other part was designated as cabin 4 and was occupied by Mr. and Mrs. Willard Boyd from Spiral, Oklahoma. The building was about seventeen years old, it was constructed of pine lumber, and it had a tar paper roof and exterior walls of “imitation brick” which was a form of tar paper. Cabin 5 had a butane gas heater,
After the fire was extinguished the unidentifiable and charred remains of a man was found lying on the floor of cabin 5 near the door. Appellant’s automobile was parked near the cabin, and since the body was found in the cabin which had been assigned to appellant, it was assumed that he was the one who had perished in the fire. Appellant’s father and brother caused a funeral to be conducted on April 9 and what was then believed to be appellant’s remains were buried in Resurrection Cemetery.
James A. McCormick was an attendant at a Clark’s Super Gas station at 4300 South Kingshighway, and appellant had worked with him when employed there in 1952 under the assumed name of Albert Lewis. McCormick and appellant were good friends, and McCormick served as a pallbearer at the funeral held on April 9 for appellant. On Friday, April 2, appellant went to the Clark station where McCormick worked and purchased gasoline for his automobile. He apparently handled the gasoline pump himself, and he also filled with gasoline a five-gallon can which was located in the trunk of his automobile. Appellant stated to McCormick that he was going to the Hampton Radio1 Shop. Apparently this was the last time McCormick saw appellant until between twelve and one o’clock of the morning of April 10 when appellant called him on the telephone and identified himself as “Al,” and after inquiring if he were alone said “I’ll be up.” McCormick thought “somebody was faking,” but after awhile he saw and recognized appellant in a parking area at the rear of the station. McCormick went to him and said “I thank God I see you alive again.” Appellant replied, “I’m proud to be here. I have a fantastic story. I don’t know whether it will hold or not, but I hope so.” Appellant then related to McCormick that on the night he went to the Hampton Radio Shop, which was April 2, he went to a White Castle for a cup of coffee and saw “two fellows” on a corner hitchhiking and he decided to pick them up and take them out as far as the city limits. However, when he got to the city limits one of the men drew a gun on him and forced him to drive to some place in Oklahoma where they stopped for gasoline and then on to Amarillo, Texas. There he was forced out of his automobile, but he was permitted to get his suitcase from the automobile. He went to the police and told them his story but they would not believe him and he hitchhiked back to St. Louis. He told McCormick that he had read in the Springfield, Missouri, newspaper about the funeral being held for him. According to this story, appellant left St. Louis the evening of April 2 and did not return until the evening of April 9.
When appellant went to the Clark station on the morning of April 10, he was “very dirty” and needed a shave. He said that his clothes were at the Warwick Hotel, and McCormick took appellant there to get them. It was apparently at this time that appellant checked out of the hotel. They then went to McCormick’s home on South 18th Street, and McCormick’s wife made some coffee and they talked until
There is no further accounting of appellant’s activities until about eleven o’clock on the night of April IS when he was arrested as he walked toward his automobile, the 1950 Nash, which was then parked across from his father’s home in the 5200 block of Vernon Avenue in St. Louis. There is no showing how or when the police officials learned that appellant was still alive, but apparently the fact was known or suspicioned earlier than the actual arrest because the sheriff’s office had a “stakeout” at the automobile.
On April 16, the day following appellant’s arrest, the Affton fire marshal and a deputy sheriff “went through” the ashes of cabin 5 at the St. Louis Tourist Court and found a badly burned billfold in which there was . a social security card bearing the name of Willie Burchett and photographs of a boy and girl identified as Burchett’s niece and nephew. The state’s evidence clearly justified a finding, and appellant does not assert otherwise, that the body found in the cabin after the fire was that of Willie Burchett. However, there was no evidence of how or under what circumstances he happened to be in the cabin rented to appellant, and there was no evidence that Willie Burchett was ever seen alive by anyone in St. Louis, or that he and appellant were acquainted.
On April 6, 1954 Dr. John Pfaff, a pathologist, examined the then unidentified charred body found on the floor of cabin 5, but he made no attempt to identify it, and from the description he gave of its horribly burned condition identification from it alone would indeed have been miraculous. He testified that in his opinion a fire resulting from the burning of the building without the aid of some inflammable substance “could” cause such burning of a body “but it would be unlikely.” A blood test revealed “.41 grams percent of ethel alcohol” which indicated intoxication to “a major degree” and that the person was “approaching unconsciousness if not comatose.” On April 16, the body was exhumed and Dr. John P. Wyatt, also a pathologist, performed an autopsy. An examination of blood samples revealed “80.2 per cent carbon monoxide saturation,” and Dr. Wyatt stated that this “level” of carbon monoxide was a “lethel or fatal concentration.” Because of “cherry red” coloration caused by carbon monoxide within the muscles and blood and because carbon particles were found in the windpipe and the back of the throat, it was the opinion of the pathologists that “respiration had occurred” after the fire started and that Burchett was alive at that time. It was also the opinion of the pathologists that the cause of death was the concentration of carbon monoxide resulting from the fire and from the severe thermal (burning) injury received in the fire.
Appellant’s automobile and the can of gasoline necessarily play an important part in the chain of events. McCormick testified that on April 2 when appellant obtained the gasoline at the Clark service station he was driving a 1950 Nash automobile. Presumably this would have been the automobile that appellant was driving when a short time later two men, according to the story he told McCormick, forced him to drive to Texas and then took the automobile from him. However, appellant unquestionably had the automobile when he registered at the motel, and after the fire it was parked near cabin 5. A deputy sheriff tried to open the automobile but
From the facts previously related it is apparent that for several days following the fire the police officers had no reason to suspect foul play. That undoubtedly accounts for the failure to make an immediate investigation in an effort to determine the cause of the fire. All of those persons present at the fire who testified stated that they detected no odors or fumes. By this they undoubtedly meant that there were no odors of fumes of gasoline, butane or other such material, because there unquestionably had to be odors and fumes from the burning wood and other materials of which the building was constructed. The fire chief of the Affton Fire District testified that he did not see or hear any explosion, as did all the others who were asked this question. But, the fire was well advanced and burning through the roof of the cabin before the firemen arrived, and although Mr. Baumgardner was the first person to see the fire and appear on the scene, the cabin was “entirely in flames” when he arrived and there were "too much flames” to get near it. Mrs. Boyd, who with her husband occupied cabin 4, stated that about five minutes before she heard the alarm of “fire,” she heard a noise in cabin 5 which sounded as though a suitcase was dropped, and she also heard the sound of someone walking.
The building was badly burned, and after the fire was extinguished the firemen knocked down a portion of a wall, apparently to. remove a hazard. The floor of the cabin had been covered with linoleum. At a place near the door, and at the place where the body of Willie Burchett was found, the fire had burned completely through the linoleum and the wooden floor, and had also caused severe burning of the joists directly below as evidenced by deep cracks in the wood which was referred to by the witnesses as “alligatoring.” However, in other parts of the cabin, and only a short distance away, the floor was not severely burned, and the linoleum was not even destroyed.
The state offered the testimony of Mr. Thomas Moran, Detective Captain of the Secret Service Division of .the St. Louis Police Department in charge of the bombing and arson squad, and of Mr. Lamont Heidinger, special agent for the National Board of Fire Underwriters. Both of these witnesses were unquestionably qualified by reason of study and experience as experts in the field of determining the cause of fires. Appellant objected to a hypothetical question submitted to each, a matter to be discussed subsequently, but they gave other testimony to which no objection was made, and in view of our
The state also presented testimony of appellant’s financial and domestic problems as evidence of a motive for an attempt by him to establish his ostensible death. Appellant had been divorced by his -first wife, Betty Ann, in 19S0, and she had been awarded a judgment for child support which by 1954 had accumulated to more than $3,000. In January 1954 a garnishment proceeding in behalf of Betty Ann against appellant’s employer netted only a little more than $30. On March 30, 1954, appellant was found guilty in the St. Louis Court of Criminal Correction of “Failure to Support Children” and sentenced to “one year in the workhouse” but was then paroled on condition that he “pay through the Parole Office the sum of $20.00 per week.” He was to make the first payment within two weeks thereafter. The state also showed that on April 6, 1954, appellant was indebted to the Meat Cutters Credit Union in the amount of $320, to Lammert Furniture Company in the amount of $319.15, and to the World Investment Company for approximately $290. His Nash automobile was security for the last mentioned indebtedness.
In connection with the use of the assumed name “Albert Lewis,” Deputy Sheriff Bresnahan testified that when he was questioning appellant following his arrest on April 15, appellant told him that “his first wife was always'garnishing his wages under the name Paglino — that is why he changed his name to Lewis.” A handwriting expert testified that he had examined the various documents admitted in evidence which contained what purported to be the signature of Albert Paglino and Albert Lewis and they were all written by the same individual.
Following the arrest of appellant on April 15, 1954, he was released on bond pending trial, which was set for October 18, 1954. On September 11 appellant, using the assumed name of Frank Reck (the maiden name of his second wife), purchased two black suits of clothes at the Bentley Clothing Company in St. Louis, and he stated to the clerk that he had a brother who was a priest and was sending the suits to him. On September 15 a 1941 Plymouth automobile was found submerged in the Mississippi River at the foot of Carr Street. In this automobile there was found a billfold containing, among other things, an operator’s license issued to
Appellant did not testify, but he presented testimony that an examination of the billfold found in the ashes of cabin 5 contained no evidence of gasoline or kerosene, and he also presented the testimony of an expert witness to the effect that from the available facts it could not be determined that the fire in cabin 5 was incendiary in origin.
Appellant’s contention that he was •entitled to a directed verdict of acquittal is twofold. He first contends that “there is no competent evidence from which it could be found that the fire was of incendiary origin or that defendant was the criminal agency causing the fire,” and second, that the evidence at this trial was “substantially the same” as that produced at the former trial, and that the ruling in State v. Paglino, Mo.Sup.,
The evidence unquestionably is sufficient to establish motive and opportunity on the part of appellant to set fire to the cabin and that the death of Willie Burchett resulted from that fire. However, in a prosecution for murder on the basis that a homicide was committed in the perpetration of an arson, it is necessary that in addition to the proof of opportunity on the part of the accused to set the fire and that a fire occurred, “ ‘There must be proof of circumstances from which the jury will be authorized to find the further fact that such fire was of incendiary origin * * * [and] that the accused was the incendiary.’ ” State v. Pierson,
While in other respects the evidence in the first trial was substantially the same as in this trial, there was no evidence in the first trial that appellant obtained the five-gallon can of gasoline at the Clark service station, and that subsequent to the fire the gasoline can, with only a small amount of gasoline remaining, was found in the trunk of his automobile. Also, there did not appear in the first trial the evidence we have previously outlined which indicated, and supported the opinion of experts, that there was present some highly inflammable substance, such as gasoline, at the place in the cabin where the hole was burned through the floor and where the body of Willie Burchett was found. The rule that “there must be evidence tending to prove that the fire which caused the death of the person charged to have been murdered was of incendiary origin,” State v. Meadows,
Where the state, as it must necessarily do in this case, relies upon circumstantial evidence to establish the guilt of the accused, the facts and circumstances relied upon by the state must not only be consistent with each other and with the hypothesis of accused’s guilt, but must also be inconsistent with his innocence and point so clearly and satisfactorily to guilt to exclude every reasonable hypothesis of innocence. State v. Whitaker, Mo.Sup.,
Appellant next contends that the trial court erred in permitting Mr. Moran and Mr. Heidinger “to examine a photograph, together with other circumstances in the case, and to then express an opinion that this fire was aided by some inflammable substance and that the fire was deliberately set,” because said opinion is as to an ultimate fact and invades the province of the jury, and it has no factual foundation in the evidence and is based on speculation and conjecture.
The opinions expressed by the two expert witnesses were different. After hypothesizing numerous facts shown by the evidence, the prosecuting attorney was permitted to ask Mr. Moran if he had an opinion whether this fire originated in an “accidental and incendiary manner.” These terms, are inconsistent. However, appellant entered no objection on that ground but objected because “it calls for an opinion as to the legal conclusion which the jury is to determine.” During the discussion appellant also interposed objections that it called for an “opinion as to the ultimate' fact” and invaded the province of the jury.
Mr. Moran was permitted to answer, and he stated that “My opinion is that it [the fire] did not originate in a normal manner and was of incendiary origin.” In reply to a subsequent question he stated, without objection, that by the use of the term “incendiary origin” he meant “that the progress of the fire was expedited by the aid of some inflammable substance and had been deliberately set.”
Substantially the same facts were submitted hypothetically to Mr. Heidinger, but he was asked if he had an opinion “as to what was the cause of the fire.” Appellant objected because the question did not contain sufficient facts and called for a legal conclusion. Mr. Heidinger’s an- . swer was that the factual evidence “indicates that there burned in that completely burned out area some highly inflammable substance or liquid.”
Cases can be cited in which it has been held that the cause of a fire is not the proper subject matter for the admission of opinion evidence. Usually the reason given is that the jury, as ordinary men, are able to draw their own conclusions without the aid of opinion evidence. Cole
We turn now to the specific contentions made by appellant on this appeal. He first contends that the admission of the opinion testimony of the expert witnesses was erroneous because “said opinion is as to an ultimate fact and invades the province of the jury.” In Eickmann v. St. Louis Public Service Co.,
The next contention, that the opinion of the experts was as to an ultimate fact, is but another way of expressing the objection that an opinion invaded the province of the jury. See VII Wig-more on Evidence, 3rd ed., § 1921, and II Wharton’s Criminal Evidence, 12th ed., § 518. Every opinion of an expert witness is to an “ultimate” fact in the sense that it is a conclusion, based upon facts supported by the evidence. We may assume that it would not be proper for an expert witness to express his opinion on the ultimate issue of whether appellant was guilty of the offense charged, but that was not done here, and as this court recognized in the Eickmann case, opinions of experts are often admissible upon vital issues which only the trier of fact may decide. Therefore, the mere contention that the opinion of an expert witness was to an ultimate fact does not demonstrate the existence of prejudicial error.
Appellant’s objections that the opinions had no factual foundation in the evidence and th,at they were based on speculation and conjecture, in substance, are the same. We note that at the trial appellant never objected to the hypothetical questions for these reasons, and after the answers were given no motion to strike was made for those or any other reasons. In addition, these objections are not mentioned in the motion for new trial.
Objections to evidence must be specific and call attention of the trial court directly to the ground upon which objection is made, and upon appeal the defendant is not entitled to broaden the scope of his objection beyond that made-in the trial court. State v. Smith, Mo.Sup.,
The testimony of Mr. Moran-that in his opinion the fire was incendiary in origin, which admittedly means that it was set, is not so clear. But in Commonwealth v. Nasuti,
During the closing oral argument counsel for the state said: “I believe the conditions of his parole were that he was to pay $20.00 a week for the support of those children. Did he do it? And what happened? I think it was at that time that this defendant concocted this scheme for alleviating all of his troubles.” Subsequently counsel for the state also said, “I believe you can readily recognize the fact that all crimes are done in secret beyond the range of any eyewitnesses. And with that in mind, and with the scheming process of the defendant Paglino’s mind, I think started this chain.” Appellant contends that the trial court erred in overruling his objection to each of the above statements and in refusing to declare a mistrial because of them. The substance of his contentions is that by the above comments counsel for the state in effect told the jury that it was his personal belief that appellant was guilty.
“The law is well settled that the prosecuting attorney may not express his private opinion or knowledge of a defendant’s guilt but where it is apparent that his opinion is based solely on the evidence in the case he may properly argue that, in his opinion, defendant is guilty.” State v. Groves, Mo.Sup.,
Appellant contends that it was prejudicial error to show that he had previously been convicted of the crime of failing to support his children. He relies principally on State v. Reese,
Proof of the commission of a separate and distinct crime is admissible as an exception to- the general rule excluding such proof when it tends to establish motive for the commission of the crime charged. State v. Fisher, Mo.Sup.,
We find that the evidence is sufficient to support the verdict, and that no prejudicial error resulted in any of the respects contended by appellant. Therefore, the judgment is affirmed, and the sentence shall be executed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.
Lead Opinion
On Motion for Rehearing
In his motion for rehearing appellant contends that the principal opinion ignores and is in conflict with Waldron v. Skelly Oil Co.,
Appellant next contends that the principal opinion conflicts with the opinion in the previous appeal in this case and with State v. Allen,
Appellant also contends that the principal opinion ignores and is in conflict with State v. Ruckman,
Appellant next, and for the first time, raises the question of double jeopardy. No cases are cited. It is his contention that “In a criminal cause the state does not get two shots at the defendant when the reversal in the first instance is because of a failure to make a submissible case.”
The constitutional privilege or right not to be put twice in jeopardy for the same offense is personal and may be waived. Ex parte Dixon,
Appellant’s motion for a rehearing or in lieu thereof to transfer the case to the court en banc is denied.