The State v. Morney
| Decision Date | 22 May 1906 |
| Citation | 93 S.W. 1117,196 Mo. 43 |
| Parties | THE STATE v. MORNEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. Wm. H. Martin, Judge.
Reversed.
Roy D Williams for appellant.
The evidence is wholly insufficient to sustain the verdict and the instruction in the nature of a demurrer to the evidence asked by the defendant at the close of the State's case in chief, and again at the close of the whole case, should have been given. State v. Jones, 106 Mo. 312; State v. Scott, 177 Mo. 672; State v Mahan, 138 Mo. 112; State v. Marshall, 47 Mo. 378.
Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Chas. W. Journey for the State.
Under the decisions of this, and other courts, the evidence was sufficient; and, the verdict of the jury having met with the approval of the trial court, the judgment should be affirmed. State v. Hunt, 190 Mo. 353; State v. Shines, 125 N.C. 730; State v. Hunt, 88 S.W. 719; Carlton v. People, 150 Ill. 186; Com. v. Bradford, 126 Mass. 44.
On the 27th day of October, 1905, the grand jury of Cooper county preferred an indictment against the defendant, Morney, charging him in the first count thereof with arson in the third degree, in having, at said county, on the second day of September, 1905, set fire to and burned a store building situated in said county and belonging to one George Vaughn; the second count of the indictment being the same as the first, save that it avers the ownership of said building to be in one Henry A. Cox.
Thereafter, during the October term, 1905, of said Cooper County Circuit Court, the defendant was put upon trial for said offense, found guilty by the jury as charged in the first count of said indictment, and his punishment fixed at imprisonment in the penitentiary for a term of five years. Defendant's motions for new trial and in arrest having been overruled, he appeals.
The facts are substantially as follows: On the second day of September, 1905, George Vaughn was the owner of a store building in the village of New Lebanon, in Cooper county which was used by him and Leslie Thomas as a grocery store. The defendant, a negro, resided with his wife and children on a small farm about four and one-half miles southeast of said village. About one o'clock of the night of the 2nd day of September aforesaid said store building was discovered to be on fire, and investigation showed that said fire originated in a coal oil tank situated on a porch at the rear end of said building. The faucet was open, and the oil apparently running and on fire at the faucet, although it had been left closed when the proprietors left the store the evening before. The building was consumed by the fire. It was suspected that the fire was the work of an incendiary, and when daylight came two searching parties were formed, one going north and the other south, upon the only roads passing through the village. The roads were quite dusty. A light rain had fallen during the night, however, which partially settled the dust. No tracks were found until a gate was reached, about one-half or three-quarters of a mile east of the store. The gate opened into Rube Thomas's pasture, which extended up near said store. The tracks found were those of a barefooted horse, and led from the direction of the store towards the defendant's house, but they could not be tracked back into the pasture, and towards the store, more than about seventy-five yards from the gate. With only a few intermissions at rocky places in the county road, these tracks were followed on to the Henry A. Cox place, which is about half a mile nearer the Vaughn store than defendant's residence. At the rocky places, above referred to, there was a barb wire fence on each side of the road and no openings in said fences. These tracks led into the Cox place up close to the Cox residence and out again into the road, and along the road into a gate which opened into Mr. Lane's pasture. On account of the sod a short distance inside of said gate, the tracks were lost. The defendant's residence is situated in said Lane pasture; and a short distance beyond his residence is a small lot, which has a gate opening into the Lane pasture. In this last-named gateway the same tracks were found. The fences around this Lane pasture were all up and secure, and it would have been impossible for a man on horseback to have gotten out of said pasture, except through one of the two gates. At various places along the road and at the gates said tracks were measured and carefully examined by several gentlemen. They were all made by a barefooted horse, and the blunt shape indicated that his hoofs were considerably worn. In the lot near defendant's residence early on the morning after the fire the posse found a barefooted gray horse, whose feet were well worn. Tracks of this horse were measured, and they corresponded exactly with the measurement of the tracks in the road and at the gates. This gray horse was examined, and it was found that his ankles and fetlocks had wet dust and dirt on them. It being September, and the grass in said lot being short there was no dew to have wet the horse's legs; nor was there a pond in said lot, from which the animal could have gotten mud on his feet and legs. At the gate going into the lot the tracks of a man were found, which tracks defendant admitted to the posse were his tracks; but said that he made them at nine o'clock the night before. Defendant also admitted to these men that there had been no one through that gate that morning. The members of the posse testified that the tracks of the man and also all of the horse's tracks showed that they had been made at the same time and after the rain, as the dust had been "kicked up." They further testified -- and there was no evidence to contradict it -- that there had been no rain prior to a little while before the discovery of the fire. And all of the witnesses said that they experienced no trouble in following said tracks; one of them saying that they were so plain to be seen that a man could go in a lope on horseback and follow them. Some of the men spoke to defendant at the lot gate and said to him there that he knew that those man tracks and horse tracks were made after the rain; to which the defendant made no reply. Three witnesses testified that as they were returning from the Bunceton fair that night, they met a negro man riding a gray horse about half a mile from defendant's house, near Mr. Cox's residence, and going in the direction of New Lebanon. This was shortly before twelve o'clock. The defendant was seen back of the Vaughn store between sundown and dark the evening before the fire; he said that he came there to have the blacksmith to sharpen a plow. On account of the lateness of the hour, the black-smith had closed up his shop and gone home; and defendant, for some reason, left the money with a merchant at one of the stores to pay in advance for sharpening said plow. Defendant was seen driving his team, which consisted of a mule and a gray horse, away...
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