THE STATE V. RALPH PIERSON, Appellant.
56 S. W. (2d) 120
Division Two
December 14, 1932.
There are some other alleged errors urged here by defendants which we need not notice. Some relate to evidence not objected to at the trial, others to matters occurring at the trial which are not sufficiently presented in the motion for new trial to entitle them to review. They do not impress us as having substantial merit, even should they arise on another trial. For the reasons indicated the judgment of the circuit court as to all three defendants is reversed and the cause is remanded. Westhues and Fitzsimmons, CC., concur.
PER CURIAM: - The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All of the judges concur.
The testimony at the hearing upon appellant‘s application for a change of venue will be reviewed in the examination of the assignment of error predicated upon the refusal of the trial court to grant the change. The facts in this case pertinent to the fire, its origin and death of Miss Frazer, from burns and suffocation, in her room in the hotel are substantially the same as in State v. Meadows (Mo.), 51 S. W. (2d) 1033, decided by this court June 10, 1932. The de
At the time of the fire in December, 1927, the Buckingham Realty Company, a corporation, owned the Buckingham Hotel and the Buckingham Hotel Annex at Kingshighway and West Pine Boulevards in St. Louis. The hotel proper was at the northeast corner and the annex at the southeast corner of these streets. Pine Boulevard separated them. The Annex consisted of two hotel buildings, each four stories high and joined by covered passageways at every floor. The building, which was burned and in which Miss Frazer was a guest was the easterly building of the Annex. All shares of stock of Buckingham Realty Company except one qualifying share were owned by Pierson and Balson, Pierson having the lesser holdings, and all their shares being pledged with a bank as collateral security for debt. At the time of the fire, December 5, 1927, the hotel properties of Buckingham Realty Company were in charge of Isaac T. Cook, as receiver, appointed June 29, 1927, by the United States District Court in St. Louis in an involuntary bankruptcy proceeding against the corporation. Substantial mortgages covered the hotel and the annex buildings and foreclosures were impending.
Andrew B. Meadows, defendant in the cited case and a witness against appellant here, was night watchman at the Annex from 1925 to the time of the fire. Robert Cotham was night clerk at the Buckingham proper during the same period. Cotham informed Meadows, one day shortly before the fire, that appellant Pierson had requested Cotham to see Meadows about burning the Annex and that Pierson had said that “if it is burned they will pay $10,000.” After a few days consideration, Meadows informed Cotham that he would burn the hotel, but he demanded of Cotham $100 cash in advance. Cotham, before the fire, paid this sum to Meadows and after the fire he paid other sums in response to Meadows’ demands, the total payments approximating $800. Meadows testified that in each instance Cotham informed him that he had received the money from appellant Pierson. One night after the fire, when Meadows called on Cotham, the two took a walk on Delmar Avenue, St. Louis, and met Pierson sitting in a parked automobile. After some conversation between Pierson and Cotham, the former handed to the latter a roll of bills bound with a rubber band. Meadows then said to Pierson: “When are you going to pay me so I can get settled down?” Pierson answered: “This is all I have got right now and we will try to fix you up later on.” Meadows replied that he had to have car fare,
Robert H. Cotham, night clerk at the Buckingham Hotel proper confirmed in the main Meadows’ statements of payments approximating $800 by Cotham to Meadows and that he, Cotham, procured these sums from appellant Pierson. Cotham testified that, one night in November, 1927, Pierson made an appointment to meet Cotham the next morning at breakfast; that they met as agreed; that Pierson said he wanted Cotham to get some one to burn the Annex for the insurance to be gotten out of it, Pierson suggesting Meadows for the work; that Pierson agreed to pay ten per cent of the insurance collected; that he, Cotham, arranged with Meadows to start the fire; that Pierson told Cotham to inform Meadows the job would have to be completed before December 20th. Cotham further testified that at three o‘clock on the morning of December 5, 1927, Meadows came through the hotel, passed the desk where Cotham was posting the books and he said: “Well, she‘s off;” that in about a minute or so the ‘phone rang and the operator on the balcony told Cotham that a guest had phoned over and said that someone smelled smoke in room 227; that about that time the clerk at the Annex telephoned to Cotham to run over there quickly as there was a fire somewhere: that he ran across the street and assisted in awakening the guests in the Annex and later in taking care of those who escaped from the burning building. St. Louis firemen described the fire and testified to the finding of the body of Miss Frazer in the burned building. Each side, on the question of motive, gave evidence of the incumbrances on the hotel properties and the amounts of insurance on the building.
I. First, we will rule whether the trial court erred in denying appellant‘s application for a change of venue. Appellant offered in evidence copies of St. Louis newspapers, published in December, 1927, immediately after the fire, and containing displayed reports, illustrated by pictures, of the burning of the Buckingham Hotel and the loss of life. At that time no imputation of guilt attached to appellant or to his codefendants. Appellant also offered in evidence St. Louis newspapers, published three years later in 1930, reporting the arrest of the accused men and the purported confessions of certain of them. Appellant also called as witnesses twenty-four representative business and professional men, of long residence in St. Louis. Each testified in substance that he had heard from twenty-five to one hundred persons, express opinions that appellant was guilty. It was the view of these witnesses that there
II. A series of assignments of prejudicial error are imputed to the cross-examination of appellant by the Assistant Circuit Attorney of the City of St. Louis, who represented the State in the trial of the case. It may aid us in examining this point to recall a few facts of the history of the law of evidence in criminal cases. Under the common law an accused person was not competent to testify in his own behalf, and this disability was not removed in England until 1898. Maine passed the first enabling act in 1864, and, today defendants in criminal cases are made competent by statute in all the states in the Union except perhaps one. It may
The Twenty-ninth General Assembly of Missouri passed “an act to permit persons to testify in their own behalf in criminal causes,” approved April 18, 1877 (Laws 1877, p. 356). The act made no mention of cross-examination, and, soon after it was passed, the question whether an accused person was subject to cross-examination was raised in the case of State v. Clinton, 67 Mo. 380, tried below in 1878, and, upon appeal, examined by this court in the same year. After a thorough review of the statute and of like statutes in other states and their construction, this court rightly ruled: “In the light, both of authority and reason, our opinion is that a defendant, who, at his own option, becomes a witness, under the Act of 1877, occupies the position of any other witness; is liable to be cross-examined as to any matter pertinent to the issue; may be contradicted and impeached as any other witness, and is to be subjected to the same tests.” It thus appeared that the “ordeal of cross-examination,” of defendants in criminal cases which for generations had been one of the causes of the continuity of their disability, was to be visited upon them. The next General Assembly, the Thirtieth, with the decision in State v. Clinton, supra, before it, in 1879 limited the liability of the accused to cross-examination “as to any matter referred to in
Transgression of the bounds of cross-examination by prosecutors has been charged in many cases appealed to this court since the restrictive proviso in 1879 was enacted. From these cases has come the settled rule that such examination of a defendant in violation of the limit set by
With the aid of this perspective, we may examine appellant‘s complaint of prejudicial cross-examination. He was the last witness called by the defense and the last appearing in the trial. In answer to questions of his counsel, appellant, in his examination in chief, testified in substance as follows: He gave his name as Ralph Pierson, fifty-three years old, born in Burlington, Iowa. He lived in St. Louis for thirty-three years except for a period of six or seven years residence in Arkansas. About thirty-six or thirty-seven years before the trial, his family consisted of his father, mother, four sisters and a brother. At the time of the trial, his father was still living, and appellant‘s own immediate family consisted of a daughter eighteen years old. He also testified that in all his life, up to the time of the filing against him of the charge of complicity in the burning of the Buckingham Hotel, he had never been accused of any criminal offense against his city, state or country, and that he had never been arrested before. With this personal background before the jury, counsel for appellant asked him a series of questions pertaining to the charge and the testimony of the State‘s witnesses. Appellant, in answer to these questions, said that the charge of conspiracy to burn the hotel was “utterly, infamously false.” He never talked with Cotham, Meadows or Balson with a view to procure the burning of the hotel. He never paid nor promised to pay to Cotham or Meadows any money in consideration of the burning of the hotel, and he denied categorically the testimony of Cotham and Meadows as to the several specific conversations about the fire and the procurement of it, the money payments and the meetings of which we have made mention in our opening narrative. The foregoing is the substance of appellant‘s examination in chief.
One chapter or section of the assistant circuit attorney‘s cross-examination which appellant charges was not on “any matter referred to in his examination in chief,” is as follows: “Q. MR.
Honorable Franklin Miller to whom the prosecuting officer referred was at the time of trial, and at this writing he still is Circuit Attorney of St. Louis. The zealous prosecutor was one of several assistant circuit attorneys whom Mr. Miller was authorized by statute to appoint. [
The use which the Assistant Circuit Attorney made, in his address to the jury, of the quoted part of the cross-examination of appellant, is the subject of a separate assignment of error. But the highly prejudicial effect of the “class-mate” cross-examination may be demonstrated by what the prosecutor said of it in his argument. Here are his words: “MR. SULLIVAN (continuing): Gentlemen of the jury, did this defendant Ralph Pierson do exactly as you would have done? Did he do what you would have done if you were innocent of this heinous offense; if evidence had been presented that would tend to prove you were innocent of this offense; if evidence had been presented, under the supervision of the one man in this world who could have prevented an indictment or criminal charge from growing out of it, gentlemen; of the one man in this world who could have come
The large record bears much proof of the known skill of the assistant circuit attorney as a prosecutor. He shows himself to be a specialist in criminal court trials. Therefore his cross-examination of appellant and the quoted part of his address to the jury was all the more prejudicial because it clearly was not the work of a blunderer whose crudities become harmless. Rather it was like to the parry and thrust and, at the last, the deadly blow of the triumphant gladiator over a stricken opponent. It was a close case in this that it was the testimony of Cotham and Meadows, (the latter under sentence of death at the time,) against the denials of appellant. In this state of things the assistant circuit attorney brought out that appellant, a lawyer, had been a classmate of Circuit Attorney Miller, in whose name and by whose authority the assistant was acting at the time. And, in his address to the jury, he demonstrated the prejudicial effect of this improper cross-examination by marshaling as proof of appellant‘s guilt the fact that he was a classmate of the Circuit Attorney, “the one man in this world who could have come into this court and entered a plea of dismissal of the criminal charge,” and the further fact that appellant, beyond “consistently proclaiming his innocence,” did nothing to move Judge Miller to take this course. The law‘s presumption of appellant‘s innocence attended him throughout the trial. The burden of proof of Pierson‘s guilt was upon the State, and that burden could not lawfully be shifted or lightened by the prejudicial fact that Miller as Circuit Attorney had not seen fit to save Pierson from the perils of trial for his life.
One of the elements of the right of a defendant against liability to improper prejudicial cross-examination should be protection as well by the prosecuting officer as by the trial judge and defendant‘s attorney against the necessity of the assertion of that right before
We are well aware of the solemnity of our decision in this case, and of its consequences. We cannot read without a shudder the harrowing details of the Buckingham Hotel fire and the loss of human lives caused thereby. This court affirmed the sentence of death of Meadows, a codefendant of appellant, and set July 15, 1932, as the date for the execution of Meadows. [State v. Meadows, 330 Mo. 1020, 51 S. W. (2d) 1033.] It is a matter of public knowledge that before the appointed day of atonement fixed for Meadows, the Governor of Missouri granted to him a reprieve until a day certain in February, 1933, in order that he might be alive to testify against Pierson if this court should grant to Pierson a new trial. In other words it may be that the day and perhaps even the fact of the capital punishment of Meadows turns upon the event of this appeal. But if Pierson is entitled to a new trial—and we hold he is—he gained that right by the abuse by the assistant circuit attorney of appellant‘s right to a fair and impartial trial in the first instance. And whenever a defendant is sentenced to prison or to death after a trial in which his right to an impartial trial is prejudiced we, upon appeal, as duty demands, will right the wrong done, whatever may be the consequences. We hold in this case, under a long line of decisions of this court, that the prejudicial and improper cross-examination of appellant was reversible error. [State v. Aurentz (Mo.), 263 S. W. 178; State v. Lasson, 292 Mo. 155, 238 S. W. 101; State v. Wellman, 253 Mo. 1. c. 314, 161 S. W. 795; State v. Webb, 254 Mo. 1. c. 434, 435, 162 S. W. 622; State v. Bowman, 272 Mo. 494, 199 S. W. 161, 1. c. 164; State v. Goodwin, 271 Mo. 73, 195 S. W. 725; State v. Culpepper, 293 Mo. 249, 238 S. W. 801; State v. Sharp, 233 Mo. 269, 1. c. 286, 287, 135 S. W. 488; State v. Barri (Mo.), 199 S. W. 136, 1. c. 138; State v. Nicholson (Mo. App.), 7 S. W. (2d) 375.] And this error was emphasized by the address of the assistant circuit attorney to the jury.
III. Other assignments of reversible error of the same nature as the one discussed in the preceding paragraph will be mentioned by way of caution for the next trial. On cross-examination the assistant circuit attorney inquired of appellant over objection about questions put to him by police officers while appellant was a prisoner at headquarters and about questions asked of Cotham by the police in appellant‘s presence and Cotham‘s answers. Appellant was cross-examined also about his refusal to testify, while he was a prisoner in the St. Louis city jail in a deposition which was being taken by attorneys for an insurance company in a civil action arising out of the Buckingham Hotel fire. These parts of appellant‘s cross-examination were upon matters not referred to in his examination in chief and were highly prejudicial. The skilled assistant circuit attorney who tried this case for the State knows well the rule that “our whole system of jurisprudence is based on the theory that counsel in a cause know the law and the legal effect of the various things done by them at the trial,” as was said by this court in State v. Webb, 254 Mo. 1. c. 434, 435, 162 S. W. 628, by way of comment upon improper cross-examination. Upon another trial this knowledge should be a guide against the errors mentioned.
IV. Appellant assigns as error the following language used by the zealous assistant circuit attorney in his closing argument to the jury: “Knowing the responsibility I have to this community, knowing and acknowledging my responsibility to Almighty God, I say to you with all the emphasis of which I am capable that there is only one just punishment that can follow this evidence, and I say this to you with all my ability, I ask you to find this defendant guilty and return the extreme penalty—death; and I say to you, with the knowledge that I have, that when you return that verdict in this court you may place that responsibility on my soul, and on my body, and I will carry it and gladly accept that responsibility, and relieve your shoulders of it.”
This declamation was very improper. Its main offending is a profession of “the knowledge that I have” which created a fair inference that the advocate for the State knew more than had been offered in evidence. The State in its brief insists that, in view of numerous prior appeals of the assistant circuit attorney to the jury to be guided by the evidence, this later statement should be con
V. The court gave of its own motion four instructions to the jury. It refused to give twelve instructions requested by appellant. We have examined the refused instructions. Most of them were adequately covered by the given instructions, and we find no reversible error in the refusal of the trial court to give any of them.
VI. For the prejudicial errors in the cross-examination of appellant and in the argument of the assistant circuit attorney the judgment of the court below is reversed and the cause is remanded for a new trial. Cooley and Westhues, CC., concur.
PER CURIAM: - The foregoing opinion, by FITZSIMMONS, C., is adopted as the opinion of the court. All of the judges concur.
FITZSIMMONS, C.