267 S.W. 853 | Mo. | 1924
By information filed in the Circuit Court of Pemiscot County, John Ross, Lizzie Ross, his wife, Cotter Henderson, and Harry Henderson, were charged with arson in the second degree, under Section 3284, Revised Statutes 1919, in that they set fire to a barn and storehouse of one Hollis Beard, which store was adjoining a certain inhabited dwelling house of said Beard. *504
The case was subsequently dismissed as to the Hendersons, and went to trial against John Ross and Lizzie Ross. Lizzie Ross was acquitted; John Ross was found guilty, and his punishment fixed at three years imprisonment in the penitentiary. He appealed.
The evidence offered by the State tended to show that John Ross employed one Gabe Fry and one Henry Hopper to burn the store of Beard; that he furnished them with two sacks filled with grass, and gasoline with which to saturate the stuff, and instructed them how to set fire to the building. Fry and Hopper were quite young men with criminal records. They went to the store after dark, July 13, 1922, and saturated the sacks of grass with gasoline, threw them under the building and set fire to them. The fire was discovered and extinguished before any serious damage was done.
The case was made out for the State almost entirely by the evidence of Fry and Hopper, who testified to their employment by Ross; testified further that Mrs. Ross furnished the gasoline; and related previous conversations between them and Ross, and described how they proceeded to carry out his instructions. They said they were promised $300 by Ross to do the job, who also told them they might first rob the store. The next day Ross gave them six dollars in money and some canned goods to eat, and told them to stay away until the matter settled down. They were later captured at Hayti and confessed. At the time of the trial they were serving terms in the penitentiary, having plead guilty to the charge of arson.
I. The information charged that the building to which the fire was set was adjoining the inhabited dwelling of Hollis Beard. The evidence showed that it was within the same enclosure, but forty feet away. The Statute, Section 3284, RevisedInformation. Statutes 1919, describing the crime as setting fire to a building "adjoining to or within the curtilage of an *505 inhabited dwelling house." The evidence showed that it was not adjoining the dwelling house, but within the curtilage — a variance between the allegations of the information and the proof. Since the case is to be retried the prosecutor may amend the information in that particular.
II. Evidence was offered and admitted by the State to show that while Ross was negotiating with Fry and Hopper, he plied them with whiskey as a re-enforcement to his persuasion. The defendant objected to this evidence. We think the evidence wasWhiskey as competent for the purpose of showing how and in whatPersuasion. manner he induced the boys to commit the crime.
The State then showed by Fry and Hopper that he afterwards gave them whiskey. They were asked to state where the defendant kept the whiskey hidden in a jug; they were also askedAfter Crime to describe the kind of house the defendant livedWas Committed. in, and his manner of life. — evidently for the purpose of showing that he was engaged in the bootlegging business. This occurred after the fire, and tended to prove the defendant was guilty of another crime than the one for which he was on trial, and with which the crime charged had no connection.
All evidence respecting the defendant's possession of whiskey and tending to show the bootlegging business after the fire took place was therefore incompetent and erroneously received.
III. One Emerson Evans testified as a witness for the defense. The State's attorney, in cross-examination, asked him if he had not been arrested several times for bootlegging, and he stated over the objection of defendant that he had been arrested once. This evidence was entirely inadmissible, and errorArrest as is confessed by the State in that respect. [StateImpeachment. v. Snow, 252 S.W. l.c. 631; State v. *506 Tracy, 284 Mo. l.c. 625]. Under Section 5439, Revised Statutes 1919, the conviction of a witness of a criminal offense may be shown for the purpose of affecting his credibility, but it is improper to show on cross-examination of a witness that he has been arrested on a criminal charge.
IV. Witnesses were produced in evidence to swear that the defendant had a bad reputation for morality. Defendant did not put his reputation in issue, and assigns error to the admission of that evidence. A defendant may be impeached asImpeachment of any other witness may be. Since the defendantDefendant. testified in the case the State had the right to prove that his reputation for truth and veracity was bad, and also to show that his general reputation for morality was bad, as affecting his credibility. The State, however, had no right to attack his character as a defendant; that is, it had no right to show that his reputation was bad in the particular respect which would affect his guilt or innocence of the crime charged. [State v. Edmundson, 218 S.W. l.c. 865; State v. Baird, 288 Mo. l.c. 67; State v. Shuster, 263 Mo. l.c. 602; State v. Higgs, 259 S.W. l.c. 458; State v. Barker, 249 S.W. l.c. 77]. The evidence should be limited to the simple question as to the defendant's reputation for morality.
V. Complaint is made of an instruction which assumed that the building to which fire was claimed to have been set was the building of Hollis Beard. Since the ownership of the building is wholly immaterial there was no error in thatInstructions. particular; the ownership of the building need be neither alleged nor proved. [Sec. 3283, R.S. 1919].
Instruction One, however, is erroneous in authorizing a verdict of guilty if the jury found that the storehouse to which fire was set was adjoining an inhabited *507 dwelling house when there was no evidence upon which to base the instruction.
Complaint is made of instruction numbered 4, given on behalf of the State, which told the jury that the testimony offered for the purpose of showing the defendant's reputation for morality should be considered only for the purpose of affecting the defendant's credibility as a witness, and for no other purpose, and should not be considered as evidence of the defendant's guilt of the crime charged. The instruction correctly stated the law in relation to the matter; if it were error the defendant is in no position to complain, because such error, if any, was in his favor. It is not a comment upon the evidence; it is always proper for the court to instruct the jury as to the effect of evidence and the purpose for which it may be received. This is very different from directing the jury what weight to give the evidence. The case of State v. Carr, 256 S.W. 1043, is cited in support of the objection. Examination of that case will show that the three judges of the court concurred only in the result, and a majority of the court concurred in holding that the instruction was proper (l.c. 1048-9).
For the reasons mentioned the judgment is reversed and the cause remanded. David E. Blair, P.J., concurs; Walker, J., absent.