THE STATE v. RALPH PIERSON, Appellant.
Division Two
July 11, 1935.
85 S. W. (2d) 48
II. The other point urged goes to the matter of the defendant‘s preliminary examination, but as it is not preserved by bill of exceptions, we cannot examine into it. As stated, defendant was found guilty of both burglary and larceny, and the verdict separately so finds, and fixes a separate punishment for each offense. The judgment conforms to the verdict, and like it, is sufficient as to both form and substance. There being no reversible error in the record proper, the judgment is affirmed.
Tipton, P. J., and Ellison, J., concur.
The Buckingham Hotel Annex consisted of two four-story buildings, called respectively the east and west wings, located on the south side of West Pine Boulevard, connected by “bridges” or passageways at each story. Opposite thereto, on the north side of the street, was the main hotel building, called the Buckingham Hotel. It was connected with the Annex by an underground tunnel or subway. The east wing of the Annex burned. That building was old and inflammable. The fire occurred at about three o‘clock in the morning of December 5, 1927. At the time of the fire Meadows was night watchman at said east wing and Cotham was night clerk at the hotel proper. Both had occupied those respective positions for
The State‘s evidence tends to prove that said hotel properties were owned by the Buckingham Realty Company, a corporation whose stock, except one share, was owned by defendant and Balson, and that the properties were insured and were heavily encumbered with mortgages or deeds of trust which were about to be foreclosed. The corporation was in financial straits, owing a good deal of money besides that secured by liens on its buildings. It had been adjudged bankrupt and its properties were being operated by a receiver. The State‘s theory is that defendant entered into a conspiracy with Cotham and, through Cotham, with Meadows, to have the Annex burned for the purpose of collecting the insurance and that said east wing was set fire to and burned pursuant to such conspiracy. It is not contended that defendant himself set the fire. If he is guilty it is because of the conspiracy and the acts done pursuant thereto by his coconspirators. The conspiracy was shown by the testimony of Cotham and Meadows, who were called as witnesses by the State. The facts developed by the evidence are in most respects substantially the same as on the former trial of this case and in State v. Meadows, supra. For detailed statement thereof reference is made to said cases of State v. Meadows, and State v. Pierson, supra. Such further reference to the facts as may be deemed necessary for the disposition of this appeal will be made in the course of the opinion.
I. Before the trial defendant, by leave of court, withdrew his plea of not guilty for the purpose of filing a motion to quash the indictment and filed such motion, the plea of not guilty being afterwards re-entered. The ground of the motion was that the grand jury had returned the indictment without having heard “any evidence touching the guilt or innocence of the said Ralph Pierson.” The court permitted defendant to offer evidence in support of his motion. At the hearing it developed that defendant was not contending that the grand jury had not heard any evidence at all, a large number of witnesses having been sworn and examined, but that there had been no legal evidence tending to show that the fire had been of incendiary origin and no legal evidence connecting defendant with the alleged crime. In the course of the hearing it was admitted by the State that Cotham and Meadows did not personally appear before the grand jury and it was shown that sworn statements previously made by them were presented to that body.
Defendant sought to prove by the foreman of the grand jury that had returned the indictment that no witness had testified “to any facts concerning an incendiary origin of the fire” and that
Defendant called the circuit attorney and assistant circuit attorney, each of whom had attended the grand jury sessions at times during its investigation of the alleged offense, and by each attempted to prove in substance and effect the same thing he had offered to prove by the grand juror. The court refused to permit the witnesses to state what evidence had or had not been given. It did permit them to say whether or not the grand jury had heard any evidence, but declined to go into the question of the sufficiency thereof to justify an indictment.
In State v. Grady, 84 Mo. 220, this court, speaking of a motion to quash the indictment on the ground that it had been returned without the grand jury having heard any evidence, said, 84 Mo. l. c. 223: “In such an inquiry the question is not as to the sufficiency of the evidence before the grand jurors, for of that they are the judges, but it is whether they had before them any evidence at all. If it were otherwise, it would result that the court would become the tribunal to indict as well as the tribunal to try the case.” The wisdom and practical necessity for that rule is well illustrated in the instant case. More than a score of witnesses testified before the grand jury. In order to determine whether or not there was “any legal evidence” before that body tending to prove that the fire was of incendiary origin or to connect the defendant therewith the court would have had to hear and consider all the evidence that had been presented to the grand jury. If such rule were established it is not difficult to see to what intolerable lengths it might be carried. That some incompetent evidence may have been heard by the grand jury is no ground for quashing the indictment. [State v. Shreve, 137 Mo. 1, 5, 38 S. W. 548.] That an indictment will not be quashed because the grand jury has heard some incompetent evidence. [See also, State v. Coates, 130 N. C. 701, 41 S. E. 706, and People v. Sexton, 42 Misc. 312, 86 N. Y. Supp. 517, both cited by appellant.]
In the Coates case the court sums up its discussion and review of authorities thus: “The uniform practice, as established by the authorities, is that the court will not inquire into the proceedings had before the grand jury, and will only quash when all the witnesses were incompetent.”
People v. Sexton, supra, is, we think, authority against appellant‘s contention.
State v. Grady, supra, has been cited and followed by this court in later cases, the most recent of which is State v. Shawley, 334 Mo. 352, 67 S. W. (2d) 74, which case also holds, following former decisions, that “an indictment cannot be impeached in this manner by the members of the grand jury who returned it.” In the Shawley case, as in the instant case, it was contended that the grand jury that returned the indictment had done so without having heard any evidence, also that it had not had before it sufficient evidence. The facts proved tended at least as strongly as in the instant case to support the appellant‘s contentions but said contentions were disallowed because it appeared that the grand jury had heard some evidence and the court declined to go into the question of the sufficiency thereof. We hold that the motion to quash in the instant case was properly overruled.
II. Appellant contends that the court erred in permitting the State to offer evidence tending to prove motive on his part to burn the building before proof of the corpus delicti had been made, citing in support of such contention State v. Francis, 330 Mo. 1205, 52 S. W. (2d) 552. In that case certain admissions and an extrajudicial confession of the defendant had been introduced in evidence and on appeal a complaint was made concerning the order of proof. This court said, 330 Mo. l. c. 1211, 52 S. W. (2d) l. c. 555 (3):
“The admissions and voluntary extrajudicial confession of the appellant were competent evidence against her, and there is no rule fixing a particular place in the order of proof for the introduction of such evidence unless it be that the corpus delicti must be first proven, as was clearly done in this case. [State v. Bowman, 294 Mo. 245, 258, 243 S. W. 110, 114.]”
The opinion does not further discuss the question of order of proof. The Bowman case, cited in State v. Francis, does not deal with or discuss that question. It holds that under the evidence in that case (a murder case) the corpus delicti was not sufficiently proven and that a conviction based upon the extrajudicial admission or confession of the defendant, uncorroborated by other circumstances, could not be sustained. Evidently the court, in the Francis case, cited the Bowman case with reference to the statement that the corpus delicti had been clearly proven rather than in relation to the suggestion concerning the order of proof. As a general rule the order of proof is a matter resting largely in the discretion of the trial court. [State v. Stogsdill, 324 Mo. 105, 129, 23 S. W. (2d) 22, 31; State v. Barnes, 325 Mo. 545, 29 S. W. (2d) 156, 158(8).] In the Francis case the court intimated that in the matter of extrajudicial confessions and admissions of a defendant there may be an exception to the rule, though the court did not definitely so hold. Determination of the precise point in question was not necessary to the decision of the Francis case. Nor need we determine in this case
III. Over the objections of defendant the State was allowed to read to the jury the testimony of Mrs. Blanche Kaune, given on the first trial of the case. At said first trial Mrs. Kaune had testified as a witness for the State and her testimony had been preserved in a bill of exceptions duly allowed, signed and filed and thus made part of the record of that trial. She had testified to facts bearing upon and tending to show motive on the part of defendant to commit the arson in question. She was a real estate agent and as such had represented the owners of the hotel properties in the negotiations and transactions through which Balson and Pierson had acquired the properties for their corporation. She testified on the first trial relative to those transactions, the price paid, how the money was procured, etc., and to numerous conversations and negotiations with defendant, especially after the Buckingham Realty Company had become financially embarrassed, looking to a sale of the property, to defendant‘s representations as to its value and his efforts to dispose of it. It is needless to detail her testimony. Its materiality in the second trial is not disputed by the State. In fact it was stressed and greatly relied upon by the State as tending strongly to prove motive. The first trial had been held in January, 1931, and Mrs. Kaune had testified on January 21, 1931. Within a month thereafter she had been placed in an institution on account of mental derangement, and, as we understand the record, she had thereafter been constantly in one or another institution because of such trouble. At the time of the second trial, in the latter part
When the State had concluded its evidence before the court tending to show that Mrs. Kaune was then insane and incompetent to testify the defendant asked leave to offer evidence, particularly the testimony of an alienist, Dr. Bradley, for the purpose of showing
(a) Appellant contends that the introduction from the bill of exceptions of Mrs. Kaune‘s testimony violated his constitutional right to be confronted with the witnesses against him. This contention we must deny. From an early day (see State v. McO‘Blenis, 24 Mo. 402), we have held that the constitutional right of confrontation is not denied where a witness is dead at the time of trial and the testimony of such witness, given and duly preserved at a former hearing in the same case, at which the defendant was present and was accorded the right to cross-examine, is read to the jury. In State v. Harp, 320 Mo. 1, 6 S. W. (2d) 562, this court en banc extended the rule to include the testimony of a witness given at a former trial of the same case and preserved in a bill of exceptions, the witness not being shown to be dead but being beyond the jurisdiction of the court and his presence unprocurable when his previous testimony was offered. That case reviews the authorities. We again reviewed authorities on this question in State v. Bradford, 324 Mo. 695, 24 S. W. (2d) 993. No useful purpose could be subserved by citing and reviewing them again. We have not had before us a case wherein the witness whose prior testimony was offered had become incompetent by reason of insanity, but on principle, if such testimony is competent in the circumstances shown in the Harp case it should be competent where the witness has become wholly incompetent to testify by reason of insanity. In such situation the witness‘s presence at the trial is to all intents and purposes as unattainable as if he were dead, as was said of the absent witness in
(b) Appellant further contends that there was no sufficient foundation laid for the introduction of this evidence because Mrs. Kaune was not produced for voir dire examination before the court; that the hearing by the court of extrinsic evidence without voir dire examination of the alleged insane person is not, alone, sufficient. He cites State v. Herring, 268 Mo. 514, l. c. 535, 188 S. W. 169, and, 28 R. C. L. 453, sec. 40. In the Herring case the question of competency of an insane person under our statute,
“. . . (b) that lawful confinement in an asylum for the insane, or an adjudication as an insane person, creates a prima-facie presumption of absolute incompetency as a witness; but (c) such presumption is rebuttable by the voir dire examination of the witness alone, or when aided by extrinsic evidence.”
In 28 Ruling Case Law 453, section 40, supra, it is said that the witness‘s competency “may be ascertained by an examination of witnesses acquainted with him, or by a personal examination of him by the court or by counsel in the presence and under the direction of the court, or by all the foregoing modes, at the discretion of the court.” We think the better practice, as intimated in the Herring case, would be to have the witness produced and examined before the court, at least if it is possible for that to be done without unreasonable risk. We are inclined to think that could have been done in the instant case. However, we would not feel disposed to reverse on this ground because the court offered to issue a writ for the production of Mrs. Kaune if defendant‘s counsel would prepare and present written application therefor, which they did not do. They perhaps refrained from so doing because the court orally requested Dr. Hoctor, superintendent of the asylum, to produce the witness if she could safely be brought. He did not bring her, giving as his reason that she was in a very excitable mental state and in no condition to be among people, and there the matter of her production in court was dropped. Since we have concluded that this judgment must be reversed for another reason we need not further discuss this question as it may not again arise. What we have said on this point is for the guidance of the court in the event of another trial.
(c) In presenting his case defendant called Dr. Bradley as an expert witness; and after showing his qualifications and that he had read a transcript of Dr. Hoctor‘s testimony given before the court in relation to Mrs. Kaune‘s mental condition, including her history
We think the court erred in excluding that evidence and that the error was prejudicial. Regardless of the question of the competency of the witness to testify at the time she gave her testimony, the fact, if a fact, that she was then suffering from a disease, progressive in character, which had then begun to undermine her mentality and render her incapable or less capable of giving a trustworthy account of matters about which she testified, as defendant proposed to prove, would have a bearing on the question of the weight to be given to her testimony, - a question which the jury had the right and the duty to determine. It will be recalled that according to the State‘s evidence introduced before the court, dementia praecox, the disease from which Mrs. Kaune suffered, is a progressive disease and one in which the afflicted person is subject to hallucinations and has a misconception of ideas and facts. In less
A witness may be impeached for moral delinquency because it affects his credibility and the weight and probative value of his testimony. That is the purpose of impeaching evidence. To illustrate, suppose the testimony of a witness, not present at the trial, is read, and that prior to the giving of such testimony such person had been convicted of an infamous crime or that at the time he testified his reputation was notoriously bad. Will it be doubted that such facts could properly be shown when his testimony is introduced? If, in a similar situation, the witness, instead of being morally delinquent was so impaired mentally by reason of disease at the time he testified that he could not give a trustworthy account of matters about which he undertook to speak it seems clear to us that the same reason exists for allowing proof of the fact to the end that the jury may be able justly and intelligently to weigh his testimony and determine its value. It is a species of impeachment: not, perhaps, strictly speaking, impeachment of the witness but rather impeachment of the witness‘s testimony. Nor do we think it necessary for the introduction of such impeaching evidence that a foundation therefor should have first been laid by questions propounded to the witness on cross-examination. It is not impeachment by proof of contradictory statements. In the very nature of the case such foundation could hardly be required or practicably laid for impeaching evidence such as we are considering. Speaking to this point the Supreme Court of Iowa, in Alleman v. Stepp, 52 Iowa 626, 628, 3 N. W. 636, said:
“Can it be doubted that the credibility of a witness may be assailed by showing his want of mental capacity? It is said that the infirmity of memory should be shown by cross-examination. But it might not be made to appear in that way, though it really existed.”
The court further said:
“Under familiar rules of the law the credibility of a witness may be impeached by showing moral defects. Mental defects in the witness, or loss or impairment of memory, will, according to the observation of all men, detract from the credibility otherwise due a wit-
ness, just as surely as do moral defects. It is not reasonable to hold that the law will permit impeachment of a witness by showing the moral defects of his character, and will not permit impeachment by proof of defects of memory caused by diseases of the body or mind.”
That such kind of impeachment is competent we think is indicated by the reasoning in: Holcomb v. Holcomb, 28 Conn. 177; District of Columbia v. Armes, 107 U. S. 519; Reg. v. Hallett, 5 Cox‘s Cr. Cas. 259. We hold that the impeaching evidence should have been admitted and that its exclusion constituted reversible error. For the guidance of the trial court in the event of another trial we add that defendant should be allowed to object to specific portions of the testimony of Mrs. Kaune which he deems incompetent, if her testimony should be again read from the bill of exceptions.
IV. Appellant complains that the court permitted Meadows to testify to conversations between himself and Cotham, not in the presence of defendant, after the fire and, as appellant contends, after the alleged conspiracy had terminated. The only instance of that kind pointed out in defendant‘s brief, and the one of which, apparently, he complains, occurred at the Westgate Hotel in St. Louis some weeks after the fire. Meadows testified: “I went over there and I met him (Cotham) coming out of the door, and as he started out, I said, ‘Where are you starting?’ I said, ‘I started to see you.‘” At this juncture defendant objected and the objection was overruled. The witness continued:
“A. And he says, ‘I just started around to see the party now.’ I said, ‘Where are you going?’ He said, ‘Right around the corner here.’ ‘I‘ll go with you,’ I said. ‘Well, maybe he won‘t want you to.’ I said, ‘Well, I‘ll go anyway.’ So we went on around there and when we got around he was across the street on this little street; I don‘t know what little street, it is right east of the hotel; well, I call it east of the hotel.”
They proceeded to the place referred to where they met defendant and the three had a conversation. It appears from Cotham‘s testimony that this meeting had been arranged by Cotham pursuant to agreement between him and defendant because, he said, Meadows had been hounding him for money and he had so reported to defendant and wanted defendant to meet Meadows and deal with him directly and defendant had authorized him to arrange the meeting. Regardless of whether the conspiracy had ended or not we see nothing prejudicial in this bit of evidence. Whatever damaging statements were made when the three men got together were in a conversation at which defendant was present and, according to Cotham‘s testimony, defendant had authorized Cotham to arrange for that meeting. If so, - a question for the jury, - he is hardly in position to complain.
Complaint is made also of the admission of testimony of Meadows and Cotham detailing conversations each of them, respectively, claimed to have had with defendant after the fire, relative to the collection of money from defendant and the payment of money by defendant to Meadows or to Cotham for Meadows, which Meadows was persistently demanding. Proof of these conversations, had with defendant himself, was competent.
V. It is contended that Instruction No. 2 given by the court assumes that there was a conspiracy, - a disputed fact, - and was therefore prejudicially erroneous. The instruction reads:
“The court instructs you that when two or more persons enter into an unlawful agreement or understanding, whether such agreement or understanding be tacit or expressed, to aid and assist each other in the commission of a crime or series of criminal acts, where the crime or crimes contemplated are such that in the prosecution thereof the natural and probable consequences are that human life will be put in jeopardy, and if in the carrying out of such unlawful design a human life is taken by any of the conspirators, each is equally responsible for such killing, even though at the time such understanding and agreement was entered into such killing was not intended or within the contemplation of the parties as a part of the original design.”
A like instruction was given in State v. Meadows, supra, and was there assailed on the same ground. Appellant cites that case as authority for his contention here. We did not therein so hold. We dismissed the contention without discussion, stating that if the instruction did so assume it was merely the assumption of an admitted fact, which was true in that case. But that was not a holding that the instruction was bad, and was not so intended. In the instant case the existence of the conspiracy is not an admitted fact. But in our opinion the instruction does not so assume. Its purpose is to explain to the jury the effect of a conspiracy to commit a crime which naturally and probably will jeopardize human life, when such result follows though not actually intended, and the responsibility of each conspirator for acts of the others in carrying out the conspiracy. The instruction does not purport to cover the whole case or direct a verdict. Other instructions required the jury to find that a conspiracy had been entered into. This contention cannot be sustained.
Complaint is made of other alleged errors. Some are not substantiated by the record. Others may not and probably will not arise on another trial. For the error herein above noted the judgment is reversed and the cause is remanded. Westhues and Bohling, CC., concur.
PER CURIAM: - The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.