The State v. Bobbitt

• Decision Date: 26 May 1910
• Parties: THE STATE v. EVERETT BOBBITT and JOSEPH STEWART, Appellants
• Court: Missouri Supreme Court

128 S.W. 953

228 Mo. 252

THE STATE v. EVERETT BOBBITT and JOSEPH STEWART, Appellants

Supreme Court of Missouri, Second Division

May 26, 1910

Appeal from Boone Circuit Court. -- Hon. N. D. Thurmond, Judge.

Reversed and remanded.

W. H Rothwell, S. C. Major and O. S. Barton for appellants.

(1) The trial court committed error in sustaining the demurrer on the part of the State to the plea in bar of former acquittal of the defendant Stewart. While the indictment in the first case charged murder in the first degree in the ordinary way, viz as a willful, deliberate, and premeditated killing, the proof of the arson was admitted and the court in that case instructed the jury that the proof of the arson took place of the proof that would otherwise have been required to show a willful, deliberate and premeditated killing. When one offense is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other. State v. Anderson, 186 Mo. 25; State v. Fink, 186 Mo. 50; State v Huffman, 136 Mo. 62; Hershfield v. State, 11 Tex.App. 207; State v. Roberts, 14 Ga. 8. Where one crime is a mere incident of another, conviction of the greater will bar a prosecution for the less. State v. Roberts, 14 Ga. 8; Neilson Petitioner, 131 W. S. 176; Triplett v. Commonwealth, 44 Ky. 193; State v. Cooper, 1 Green (N. J.) 361; Regina v. Gould, 9 Car. and P. 364; R. S. 1899, sec. 1815. (2) The court committed error in permitting the prosecution over the objection of the defendants, to introduce threats made by Enoch Bobbitt, the father of the defendant Everett Bobbitt. Evidence of threats by one of the conspirators, made before the existence of the conspiracy, is not competent against the others. State v. Weaver, 165 Mo. 1; State v. May, 142 Mo. 135; State v. Kennedy, 177 Mo. 98. It is only after a conspiracy has been shown to exist that acts or declarations of one of the parties are considered as the acts of all. State v. Weaver, 165 Mo. 1; State v. Daubert, 42 Mo. 233; State v. Melrose, 98 Mo. 594; State v. Menton, 116 Mo. 605; State v. Frederick, 85 Mo. 149; State v. Walker, 98 Mo. 95; State v. Hicks, 129 Mo. 99; State v. Crabtree, 111 Mo. 139. The admission of improper evidence in a criminal case is not cured by an instruction for its exclusion. State v. Thomas, 99 Mo. 235. (3) The trial court committed error in permitting the witness Rollie D. Kivett to testify as to the statement that Robert Goodwin made in regard to the pistol Kivett had, as the evidence of Kivett is that this statement was made the next day after the killing and the object of the conspiracy had been accomplished. In answer to the question as to what had become of the pistol he had that night, he stated that Robert Goodwin told him that he had taken the pistol out of Kivett's pocket and put it in the flour chest. Nothing said or done by a conspirator after the object of the conspiracy has been accomplished is competent. State v. Duncan, 64 Mo. 262; State v. Levy, 90 Mo.App. 643; State v. Davis, 80 Mo.App. 239; State v. Levy, 168 Mo. 521. (4) The evidence shows that there was a burning, that the shingles on the roof were burned and a hole burned in the roof; then the crime of arson had been completed. Though there must be an actual burning to constitute the offense, it is not necessary that the building should be wholly consumed or even materially injured. If any part, however small, is consumed, it is sufficient. 2 Am. and Eng. Ency. Law (2 Ed.), p. 923; Bishop on Crim. Law (3 Ed.), sec. 325. A person cannot be convicted of an attempt to commit a crime, if the crime was actually committed. R. S. 1899, sec. 2361; State v. White, 35 Mo. 500; State v. Scott, 172 Mo. 543; State v. McCaffery, 225 Mo. 617; State v. Bell, 194 Mo. 266; State v. Harris, 100 Mo. 724; State v. Clark, 221 Mo. 301. (5) The court, after telling the jury that they must find that a conspiracy existed between these defendants and Kivett and Peacher, then tells them not to take into consideration the guilt or innocence of Kivett or Peacher. These instructions are utterly inconsistent. If the defense was an alibi, and the defendant testified that he was not present at the commission of the crime, and the court is asked to instruct on alibi, a failure to give an instruction on the theory of the case is reversible error. State v. Koplan, 167 Mo. 298.

Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State; Paul P. Prosser and A. W. Walker of counsel.

(1) Appellants were found guilty of an attempt to commit arson. This offense is embraced within that charged in the information. State v. Frank, 103 Mo. 122; Benbow v. State, 128 Ala. 4. (2) The defendant Stewart contends that his former acquittal on the charge of murder is a bar to his prosecution for the offense of arson under the present information. The statute is a complete answer to this contention. R. S. 1899, sec. 2371. Stewart could not have been legally convicted of arson or of an attempt to commit arson under the former information. State v. Oakes, 202 Mo. 86; State v. Martin, 76 Mo. 337. (3) Acts and declarations of a co-conspirator may be admitted before proving the conspiracy, provided proof of the conspiracy is afterward made. The order of such testimony lies within the discretion of the trial court. State v. Miller, 191 Mo. 608. (4) The instructions on attempt to commit arson were clearly warranted by the evidence. The evidence does not show conclusively that the setting fire to the house was the act of these defendants, but leaves open the question whether such was their act or the inadvertent act of Mrs. Smith in knocking down the "pole of fire" despite the warning of her husband. (5) Counsel for defendants criticise the instruction which tells the jury that it is not within their province to consider the guilt of Kivett or Peacher, except for the purpose of determining their credibility as witnesses. They say the entire case was tried by the State on the theory that there was a conspiracy. Instructions 1 and 3 submitted to the jury that the defendants were present and actively participating in the offense, and the theory that they were present as aiders and abettors. The evidence of Kivett and Peacher tended to prove these theories, as well as the existence of a conspiracy. The defendants themselves testified that they were not present at the commission of the offense. The court properly submitted all three theories to the jury. The criticised instruction says nothing about the innocence of Kivett and Peacher, as intimated. It was not within the province of the jury to assess any punishment against Kivett and Peacher, and the instruction was entirely proper. When taken in connection with instructions 1, 2, 3, 4 and 7, it could not have misled the jury in any way. (6) Defendants' instruction as to alibi was properly refused since appellants' presence at Smith's house was not necessary in order to warrant their conviction. The evidence abundantly established a conspiracy. Hence an instruction on alibi would have been erroneous and would have misled the jury. R. S. 1899, sec. 2364; State v. Gatlin, 170 Mo. 369.

OPINION

GANTT, P. J.

This is a prosecution commenced on the 30th day of January, 1908, by the prosecuting attorney of Howard county, by filing in the circuit court of said county an information duly verified, charging that the defendants "did unlawfully, maliciously and feloniously set fire to the dwelling house of Franklin Smith, then and there situate, in which dwelling house was then and there a human being." Defendants applied for and were granted a change of venue to Boone county. Afterwards in the circuit court of Boone county the defendants were duly arraigned and pleaded not guilty. The defendant Stewart filed a plea of former acquittal, to which the prosecuting attorney demurred and the demurrer was sustained. A jury was then impaneled and the defendants were put upon their joint trial, which resulted in a verdict of guilty of attempting to set fire to the dwelling house of Franklin Smith and the punishment of each was fixed at two years in the penitentiary. Motions for new trial and in arrest were filed overruled and the defendants sentenced in accordance with the verdict, and from that sentence they have appealed to this court.

The State's evidence tended to show that prior to the commission of the offense of which defendants were convicted Enoch Bobbitt, the father of the defendant Everett Bobbitt, had become involved in a litigation with one Franklin Smith over the possession of a tract of land belonging to Enoch on which Smith was living. The evidence tended to show that Enoch Bobbitt had made numerous threats with reference to the means he would use to get Smith off of his premises, and that in the execution of these threats he enlisted, through his son-in-law Robert Goodwin, the services of Rollie Kivett, Noble Peacher, Everett Bobbitt, his son, Robert Goodwin and Joe Stewart. Stewart was working for Everett Bobbitt at the time. According to the testimony of Kivett and Peacher, on the night of March 19, 1907, the above named parties met at the home of Robert Goodwin; after spending the evening in playing cards and drinking whisky, the party adjourned to the porch to complete their arrangements for burning Smith's house. A jug of oil procured on the preceding day was at hand, and this, together with a tin bucket, two sacks, some waste, two revolvers and a bottle of whisky, constituted the materials selected for the end in view. The testimony then tends to show that Kivett, Peacher and the two defendants herein, Joe Stewart and Everett Bobbitt, left Goodwin's house...