State v. Jones

• Citation: 17 S.W. 366,106 Mo. 302
• Court: United States State Supreme Court of Missouri
• Decision Date: 12 October 1891
• Parties: STATE v. JONES.

17 S.W. 366

106 Mo. 302

STATE v. JONES.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

ARSON — WHAT CONSTITUTES — CONSTRUCTION OF STATUTE — EVIDENCE — INDICTMENT.

1. Rev. St. Mo. § 3511, declares that the willful setting fire to a dwelling in which there is at the time some person is arson in the first degree. Section 3512 declares that every house where a person lodges shall be deemed a dwelling, but that no barn shall be deemed a dwelling, unless the same be joined to or immediately connected with a dwelling. Held, that a barn which is the usual sleeping place of a person is within said sections, and that the setting fire thereto in the night-time when he is occupying it is arson in the first degree.

2. Rev. St. Mo. §§ 4104, 4115, provide that an indictment may contain counts for different degrees of the same offense, or for any of such degrees, and that no indictment shall be deemed invalid because the evidence shows, or tends to show, that the accused is guilty of a higher degree than that of which he is convicted. Held, that although an indictment charged merely the burning of a barn, which under section 3515 is arson in the third degree, it was immaterial that the evidence tended to show that the barn was the usual lodging of a person, and therefore, under sections 3511 and 3512, the subject of arson in the first degree.

3. An indictment charging that defendant set fire to and burned a certain barn is not open to the objection of charging two crimes conjunctively.

4. Rev. St. Mo. § 3519, provides that every person who shall be convicted of any degree of arson shall be punished by "imprisonment" in the penitentiary. Held, that where the jury fixed the "punishment at five years in the penitentiary" it was sufficiently plain that imprisonment was intended.

5. The prosecutor on a trial for arson was the brother-in-law of the defendant. There had been evidence admitted showing a bitter animosity between the parties and their families, extending down to the time of the fire. The prosecutor was asked, for this purpose, if he had not, in a conversation with a certain person two years before, made a threat to break up his father-in-law's family, to which he replied that he had not. The person with whom the conversation was alleged to have taken place was then called, and testified that he had. The testimony of the latter was then excluded on motion of the state. The other evidence in the case was almost wholly circumstantial, and it was doubtful whether even the corpus delicti had been proven. Held, that the evidence was competent for the purpose of impeachment, and also to show the animus of the prosecution.

Appeal from circuit court, Newton county; JOSEPH CRAVEN, Judge.

Indictment of W. Reed Jones for arson. There was a judgment of conviction, and defendant appeals. Reversed.

The grand jurors of Newton county, state of Missouri, at the May term of the Newton county circuit court, on the 24th day of May, 1889, found and returned into court an indictment against the defendant, as follows: "The grand jurors for the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of the county of Newton and state of Missouri aforesaid, upon their oaths present and charge that on or about the _____ day of April, 1889, at the county of Newton and state of Missouri, one Reed Jones willfully, maliciously, and feloniously did set fire to and burn a certain barn there situate, the property of J. A. Robertson, and of the value of eight hundred dollars, against the peace and dignity of the state," etc. At the November term of the Newton county circuit court, 1889, the defendant was arraigned upon this indictment, and his plea of not guilty was duly entered of record. The defendant was put on his trial December 2, 1889, and the jury returned their verdict on the 5th day of December, 1889, in words and figures as follows: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at five years in the penitentiary. [Signed] I. E. MOORE, Foreman." The testimony shows that in the month of April, 1889, the prosecuting witness, Joseph Robertson, owned a farm, and a dwelling-house and barn situated thereon; that the barn was situate about 30 yards from the dwelling-house, in which Robertson and family lived and dwelled on the morning of April 30, 1889; that one Miller Crocket had his sleeping apartment in the loft of the barn, and had slept there for more than a month, and up to the very time, and was in the barn asleep when he discovered the barn on fire at 3 or 4 o'clock on Tuesday morning, April 30, 1889; that the said barn was used as a lodging place for said Crocket. In fact, the evidence of Robertson and Crocket upon the part of the state proves that Crocket had no other place of sleeping prepared for him on the premises than the loft of the barn that was burned. The testimony of the state shows that on the night of the burning it had rained, and was misting rain when the fire was discovered; that the barn was in a field or lot which had been freshly plowed, and not a human track could be found going towards the barn, and not a track was found nearer than 30 or 40 yards of the barn, and from that point went northwest toward Jones' and other neighbors' houses; but the track was lost. The testimony of all the witnesses for the state agree that search was made in a circle of half a mile around that barn, and not a sign of a track could be found approaching the barn or the farm. On the trial the court admitted evidence both for the state and defendant tending to show that a bitter animosity existed between Robertson, the prosecutor, and Jones, his father-in-law. The prosecuting witness, Robertson, was asked by the state if he knew E. Armstrong, and replied he did. He was then asked if in a conversation with Armstrong he made a threat to break up Sam Jones and his family, and he answered, "No." Armstrong was then called for the defendant, and was asked if Robertson stated in his presence, at the survey of Jones' farm, that he intended to break old man Jones and his family up. He answered, "Yes." After cross-examination by the state the witness adhered to his testimony. Thereupon the attorney for the state moved to exclude his testimony, and the court sustained his motion and excluded it. To this, defendant objected, and saved his exception. The evidence was almost wholly circumstantial. Maggie Meyers testified that Wednesday evening before the barn was burnt on Tuesday she was staying at Joe Robertson's while he was away from home; that she met defendant, and had a conversation with him. He said, "`All the folks are away from home, ain't they?' I said, `All who?' and he said, `Joe, Samp, and Bill,' and asked me if they had gone off to get rich; and I said I didn't know whether they had or not; and he said, `He might lose more than he will make,' and I said I hoped not; and he asked me if I was staying with Sallie, his sister, Joe's wife, and I told him I was; and he asked me then if I was not afraid. I said there was nothing to be afraid of, but that I was lonesome. He asked me if Miller Crocket was staying there yet. I said he slept at the barn. He said it might get burnt up; that there had been such things as that done; and told me then that we had better keep Miller with us, for he would be up some night, and if we saw a light or fire or anything of that kind that we would know what it meant. That was on Wednesday before the barn was burnt on Tuesday." William Lewis testified that between the 8th and 20th of April Mose Peck sent him to his father's for some flour sacks to haul wheat. "I was working at Mose Peck's then. He told me to stop at Jones' and get some sacks there. I came by there, and Reed Jones went to get the sacks, and he came out with the sacks. I said something to him about Jim; if he had heard from Jim. Jim was his brother. Reed said, `No, I ain't beard from him.' He says, `My brother was too young to go out among strangers, and I will have my revenge out of Robertson, if I have to burn his barn down.' He said something about Joe's hired hand sleeping at the barn, and asked me to find out for him. I said I was not looking after that kind of business, and he would have to do it himself. This conversation took place about two weeks before the fire. The first time I saw Reed after the morning of the fire was in Mose Peck's new ground. It was about two weeks afterwards. He came to where I was plowing, and said, `Do you know the talk you and I had at father's gate?' and I said, `Yes.' `Well,' he said, `what will you take to leave, or will you leave?' I said, `I ain't in no condition to leave; if you want anybody to leave, you go yourself,' and ordered him out of the new ground there. A month or two after the barn burnt, I met Reed Jones again, and his brother. They were sitting on the fence, and, as I rode up, Jim said, `Hi, Will,' and I said, `Howdy do;' and he said, `Fat and sassy;' and Reed says, `When I get back from the pen I will be fat and sassy, too.' I said, `I guess you will.' He says, `I heard you was going to send me there.' I said, `You are ahead of me there;' and by that time he jumped off the fence, and turned to my horse and said to me, `What did you swear before the grand jury?' I said, `I ain't allowed to tell;' and he said, `God damn you, you will have to tell, or you will have to die.' I said, `I can die here.' Jim said, `Shoot him.' He grabbed for a rock, and threw and hit me, and knocked me off of my horse. I said, `If that is your game, I will settle you;' and jumped and reached and started to hit him with a rock, when he got it, and went and hit me again; and he hit me and threw me down; and Jim said, `Give it to him, God damn him.' Jim says, `I will fix him,' and was in the act of getting his gun, which was in the corner of the fence. I jumped on my horse and says, `I guess I will be going.' They...