The State v. Bersch

• Decision Date: 23 December 1918
• Citation: 207 S.W. 809,276 Mo. 397
• Parties: THE STATE v. JULIUS R. BERSCH, HAROLD G. GILMORE and HARRY C. IMEL, Appellants
• Court: Missouri Supreme Court

207 S.W. 809

276 Mo. 397

THE STATE v. JULIUS R. BERSCH, HAROLD G. GILMORE and HARRY C. IMEL, Appellants

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Affirmed.

Bass & Bass, Elliott W. Major and Charles G. Revelle for appellant.

(1) (a) The indictment is insufficient in that it does not allege the means by which the defendants intended to defraud the insurance companies, whether by collecting the insurance after the fire or by some other means. State v Greer, 243 Mo. 599; State v. Green, 111 Mo 585; State v. Reed, 117 Mo. 604; State v. Holden, 48 Mo. 93; State v. Austin, 113 Mo. 538. (b) The indictment after alleging that the property was owned by and insured to the Gilmore-Bonfig Decorating Company, alleges an intent to defraud on the part of the individual defendants, but does not allege that they were stockholders in said corporation or had any connection therewith or could have so acted as to cause the Gilmore-Bonfig Decorating Company to defraud the insurance companies, since the indictment discloses that they were in no position to individually do this unless they were acting in conjunction with the corporation and no such conjunction or connection is alleged. State v. Greer, 243 Mo. 599. It therefore fails to allege facts which would show that it was even possible for the defendants to defraud the insurers. (c) The indictment does not allege that the defendants knew that the property owned by the Gilmore-Bonfig Decorating Company was insured. State v. Greer, 243 Mo. 599. (d) The indictment alleges that the policies of insurance in existence at the time had been assigned and transferred to the Gilmore-Bonfig Decorating Company without alleging by whom said policies had been assigned and transferred and does not inform the defendants of this material fact. (2) (a) The court erred in admitting testimony as to the acts, statements, conduct and whereabouts of Milner and Greenberg, such statements, acts and conduct taking place in the absence of the defendants and there being no evidence of any conspiracy or connection between the defendants and said Milner and Greenberg. State v. Daubert, 42 Mo. 239; State v. Walker, 98 Mo. 95. (b) The court erred in admitting the testimony relating to the Christen Brothers' conspiracy and the proposed Shelly fire. Fish v. United States, 215 F. 544; State v. Spray, 174 Mo. 569; State v. Reed, 85 Mo. 194; State v. McWilliams, 267 Mo. 437; State v. Wade, 267 Mo. 249. (c) The court particularly erred in permitting the State to exhibit to the jury the gasoline, powder, fuse, explosives, etc., which were taken from Milner and Greenberg by police officers at the place and scene of the proposed Christen Brothers' fire. (3) (a) The court erred in permitting one of the jurors to testify in the presence of the other jurors that a bribe had been given him by a brother-in-law of one of the defendants and in permitting said juror to exhibit in the presence of the jury the bribe money alleged to have been given him and in permitting said juror to be examined in the presence of the other jurors in relation to all such matters and things. (b) In permitting defendants' counsel to make the various prejudicial statements they did make in the presence of the jury at the time they first announced their withdrawal from the case. (c) In permitting defendants' former counsel to make the statements and do the things they did in the presence of the jury after they had announced their withdrawal from the case. (d) In permitting defendants' counsel to withdraw as counsel in the presence of the jury. (e) In permitting the State's counsel to make the statements and commit the acts they did in the presence of the jury at the time of and subsequent to the withdrawal of defendants' counsel. (f) In allowing any proceedings of any character or kind after the withdrawal of defendants' counsel and at a time when defendants were not represented in the court and without having first given the defendants an opportunity to obtain counsel or without appointing counsel to represent the defendants. (g) In permitting the jury to separate and remain separate during a period of ten days or two weeks after defendants' counsel had withdrawn and after an alleged attempt had been made to bribe the jury. (h) The court erred in overruling defendants' motion to discharge the jury after they had secured counsel and after the various above stated occurrences and performances in the presence of the jury. (4) The verdict of guilty as to Imel is not supported by the evidence. State v. Ruckman, 253 Mo. 487; State v. Greer, 243 Mo. 599.

Frank W. McAllister, Attorney-General, Thomas J. Cole, Special Assistant Attorney-General, Henry B. Hunt, Assistant Attorney-General, for respondent.

(1) The indictment on which this prosecution is based follows the statutory language and is in approved form. Sec. 4511, R. S 1909; State v. Tucker, 84 Mo. 23; Sherwood's Com. on Crim. Law of Mo., p. 154; Kelley's Crim. Law, p. 528. It was not necessary that the indictment allege that the defendants knew the property was insured. 5 C. J. 567; Com. v. Goldstein, 114 Mass. 276; Arnold v. State, 168 S.W. (Tex. Crim. App.), 123. (2) The evidence of other fires was admissible. State v. Hill, 201 S.W. 60; State v. Meyers, 82 Mo. 564; State v. Hyde, 234 Mo. 226, 233; State v. Jones, 171 Mo. 401; State v. Wilson, 223 Mo. 168; State v. Donaldson, 243 Mo. 475; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Mix, 15 Mo. 160; State v. Balch, 136 Mo. 109; State v. Pennington, 124 Mo. 392; State v. McClard, 160 P. 130; State v. Huffmann, 73 S.E. 293; Knight v. State, 58 Nebr. 231; People v. Freeman, 145 N.Y.S. 1163; People v. Morin, 205 N.Y. 281; Mitchell v. State, 140 Ala. 120; State v. McMahon, 17 Nev. 374; Com. v. McCarthy, 119 Mass. 354; 2 R. C. L. 517; Underhill Crim. Evid. (2 Ed.), sec. 89; Spurr v. United States, 87 F. 711; Schultz v. United States, 200 F. 236; Insurance Company v. Bank, 72 F. 422; McGlasson v. State, 37 Tex. Crim. 624; People v. Donaldson, 255 Ill. 32; People v. Duffy, 212 N.Y. 66; Colt v. United States, 190 F. 306; United States v. Snyder, 14 F. 556; 1 Wigmore on Evid. sec. 320. (a) Evidence of attempted fires was properly admitted. Sec. 4894, R. S. 1909; State v. Wilson, 223 Mo. 168; State v. Donaldson, 243 Mo. 475; State v. Turley, 142 Mo. 403. (b) The court did not err in allowing the witnesses to detail the facts of the other crimes. State v. Wilson, 223 Mo. 169; State v. Turley, 142 Mo. 411. (3) The court did not err in permitting counsel for the defendant to withdraw from the case during the trial thereof. Under the facts of this case appellants' counsel had the right to withdraw. 6 C. J. 674; Genrow v. Flynn, 166 Mich. 567; 35 L. R. A. (N. S.) 960; Ann. Cas. 1912D, 638; In re Dunn, 205 N.Y. 402; Tenney v. Berger, 93 N.Y. 524, 45 Am. Rep. 263; Matheny v. Farley, 66 W.Va. 684; 2 Mechem on Agency (2 Ed.), sec. 2254; Thornton on Attys. at Law, sec. 139, pp. 243, 244. (4) All assignments in appellants' motion for a new trial predicating error upon the alleged attempt to bribe juror Lang should be disallowed, for the reason that there are not objections of record to any of the poceedings with reference to such alleged attempt to bribe. (5) The court properly conducted the inquiry as to this alleged attempt to bribe in the presence and hearing of the jury. Harvey v. Beard, 172 P. 420; Van Loon v. St. Joseph, 195 S.W. 740; Com. v. Tilly, 33 Pa. Sup. 37; Mix v. N. Am. Co., 209 Pa. St. 644. (6) The fact that the jury in this case separated will not invalidate their verdict. The jury separated with the consent of the court, appellants, and counsel; furthermore, consent to separate is presumed where the record shows separation and no objection. Sec. 5232, R. S. 1909; State v. Brown, 75 Mo. 317; State v. Dougherty, 55 Mo. 69; State v. Carlisle, 57 Mo. 102; State v. Matrassy, 47 Mo. 295; Bennett's Case, 106 Va. 838; Ossenkop v. State, 86 Nebr. 543. (7) The failure of the court to discharge the jury would have been erroneous only if prejudice on the part of the jury had been shown. 29 Cyc. 805; 20 R. C. L. 251, sec. 34. Appellants should have filed affidavits as to the prejudice of the jury with their motion for a new trial in order to bring same to the attention of this court. Van Loon v. St. Joseph, 195 S.W. 738; State v. Mace, 262 Mo. 157; State v. Gonce, 87 Mo. 630; State v. Howell, 117 Mo. 342; State v. Williamson, 106 Mo. 169. The power of discharging a jury is discretionary with the court and should only be exercised in cases of manifest, urgent, or absolute necessity. 12 Cyc. 270; 17 Stan. Ency. Proc., 612; United States v. Perez, 19 Wheat 579; Thompson v. United States, 155 U.S. 274; Simmons v. United States, 142 U.S. 153; United States v. Bigelow, 14 D. C. (3 Mackey) 425; Com. v. Fells, 9 Leigh (Va.), 617; Mix v. North Am. Co., 209 Pa. St. 644; Stocks v. State, 91 Ga. 839; People v. Fishman, 119 N.Y.S. 91; Anderson v. State, 86 Md. 481; Com. v. Purchase, 2 Pick. (Mass.) 523. The competency of jurors is for the trial court's determination. Tisdale v. State, 179 S.W. 650; State v. Cunningham, 100 Mo. 388; State v. Williamson, 106 Mo. 169; State v. Rasco, 239 Mo. 561; State v. Ihrig, 106 Mo. 267; State v. Bauerle, 145 Mo. 15; State v. South, 145 Mo. 666; State v. Jackson, 167 Mo. 296. (8) The court limited all evidence as to Milner, who participated in the attempt to burn the Christen Bellows plant, to defendant Bersch, by its instructions. (9) Instruction No. 1, given by the court, is correct as it is based on the evidence and the indictment. 5 C. J. 567; Com. v. Goldstein, 114 Mass. 276; Arnold v. State, 168 S.W. (Tex. Crim. App.) 123. (10) The instruction...