State v. Hess

• Decision Date: 27 February 1912
• Citation: 240 Mo. 147,144 S.W. 489
• Parties: STATE v. HESS.
• Court: Missouri Supreme Court

144 S.W. 489

240 Mo. 147

STATE v. HESS.

Supreme Court of Missouri, Division No. 2.

February 27, 1912.

1. CRIMINAL LAW (§ 200) — FORMER JEOPARDY.

The first count of an indictment charged accused with burning a stock of goods belonging to his wife, which is arson in the fourth degree, as denounced by Rev. St. 1909, § 4512, and the second count charged burning the same property with intent to defraud insurance companies, thus charging arson in the third degree, as denounced by section 4511. Held, that the withdrawal of the first count did not work an acquittal of the charge in the second count; the offenses being different.

2. CRIMINAL LAW (§ 723) — TRIAL—ARGUMENTS OF COUNSEL.

It is highly improper for the state's attorney in his argument to hold up to the jury the horrors of mob law to secure a conviction.

3. CRIMINAL LAW (§ 720)—ARGUMENT—ARREST —ISSUANCE OF WARRANT.

The issuance of a warrant for the arrest of accused is no evidence of his guilt, and should not be referred to as such by the prosecuting attorney in his argument.

4. CRIMINAL LAW (§ 720½)—TRIAL—ARGUMENT OF COUNSEL.

It is improper for the state's attorney in his argument to the jury to state that he believed accused to be guilty, and that otherwise he would not prosecute.

5. CRIMINAL LAW (§ 1171)—APPEAL—REVERSIBLE ERROR.

Where the evidence of guilt was weak, improper argument by the prosecuting attorney in holding up to the jury the horrors of mob law and stating his opinion as to the guilt of accused cannot be regarded as harmless error.

6. CRIMINAL LAW (§ 180) — FORMER JEOPARDY.

The withdrawal of a count of an indictment charging arson in the fourth degree, after the jury was sworn, operated as an acquittal of that charge, and accused cannot, under Const. art. 2, § 23, be again tried for that offense.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

George W. Hess was convicted of arson in the third degree, and appeals. Reversed and remanded.

Defendant was convicted in the circuit court of St. Louis city of the crime of arson in the third degree, as defined in section 4511, R. S. 1909, and appeals from a judgment fixing his punishment at imprisonment in jail for one year.

On August 25, 1909, defendant was conducting a drug store at Frieda and Gravois, in St. Louis city. The stock consisted of drugs, stationery, cigars, and sundries, all of which, including the house where they were located, were owned by Lucy Hess, the wife of defendant. The stock of drugs, stationery, shelving, and fixtures was, at the time of the alleged crime, insured in favor of said Lucy Hess as follows: $1,800 on stock of goods and $700 on fixtures; total insurance, $2,500.

The indictment is in two counts. In the first, defendant is charged with burning the stock of drugs, stationery, cigars, and shelving belonging to his wife, which charge, if true, would, under section 4512, R. S. 1909, amount to arson in the fourth degree, and is punishable by imprisonment for not less than 6 months. In the second count of the indictment, he is charged with burning the same property with intent to defraud the companies in which the property was insured. This crime is denounced by section 4511, R. S. 1909, as arson in the third degree, and is punishable by imprisonment for not less than 12 months. At the close of the evidence, the court of its own motion withdrew from the consideration of the jury the first count of the indictment, and the jury convicted defendant on the second count, and fixed his punishment at 12 months in jail.

Defendant, a physician, purchased a drug store in St. Louis several months before the alleged crime was committed, taking title thereto in the name of his wife. It seems that the store was not located to suit the defendant at the time of the purchase; at least, he moved the stock twice, finally establishing it in a wooden building owned by his wife at Frieda and Gravois, which building served both as a residence and store. The defendant was at the drug store alone on the night of August 25, 1909. Near midnight, three boys, George Krissler, Albert Krissler, and Ben Dawley, aged from 11 to 14 years, who claimed to have been out to a moving picture show, came to the defendant's store and sat down on the front steps. They testify their attention was attracted by a noise inside the storeroom, and looking through the glass front saw the defendant standing there in a nightrobe, striking matches. Within a few minutes thereafter, these boys saw fires burning inside the store, whereupon they sent in a fire alarm, and about eight minutes after the alarm was sent in two policemen and several employés of the fire department came on the scene. While the fires were burning, the defendant came out of a side door of the building, dressed in a nightrobe and carrying a suit of clothes under his arm. He also carried some money and jewelry in a pocket of his nightrobe. One of the policemen immediately arrested the defendant, and, after allowing him to put on his clothes, accompanied him into a bedroom of the burning building, pursuant to a request of defendant to be allowed to obtain some additional clothing from a closet. The closet was locked, and after a search the key thereto was found on the floor. Upon unlocking the closet door, no clothing was found, but a fire was burning in the closet.

One witness testified that a few days before the fire defendant said he did not like his location very well for a drug store; had more stock and fixtures than he could carry insurance on, and a fire would cause him great loss. Defendant also asked said witness if it was necessary to have the signature of the president of an insurance company on a policy of insurance, and also inquired about the location of fire alarm boxes.

A policeman who entered the building stated that he found fires burning in four places, two on each side of the storeroom, near the floor; that holes had been made in the walls and the fires started with excelsior and small pieces of wood; that some of the shelving had burned, and a ledger, which was leaning against one of the fires, was burning; that he saved part of the ledger. Other witnesses who examined the building after the fire, testified that the fires appeared to have begun near the ceiling and burned downward toward the floor. Defendant's wife claimed damages to the stock of drugs and shelving by reason of the fire, and received from the insurance companies $900 on that account.

Defendant denied the crime and testified that the three boys (Krissler brothers and Dawley) who claimed to have seen him striking matches, were unfriendly to him; that they were street loafers, frequently slipping into his store and stealing cigarettes and other small articles; that about 8 o'clock the night of the fire he came into his store through the side door and found these boys in there with their hands full of cigars and candy. He caught them, took the goods away from them, and after opening the front door kicked them out. They made considerable noise over being kicked out, and defendant threatened to call the police before he could get them to leave. The defendant was strongly corroborated on this point by one Cunningham, who came into the store about the time the boys were being kicked out. He heard one of the boys curse the...