The State v. Wigger

Citation93 S.W. 390,196 Mo. 90
PartiesTHE STATE v. WIGGER, Appellant
Decision Date22 May 1906
CourtUnited States State Supreme Court of Missouri

Appeal from St. Francois Circuit Court. -- Hon. Chas. A. Killian Judge.

Reversed and remanded.

W. S Anthony and Jasper N. Burks for appellant.

(1) The motion to discharge the defendant should have been sustained. Secs. 2641, 2642, 2643, 2644, R. S. 1899; Brooks v People, 88 Ill. 327. (2) It was error for the prosecuting attorney to ask witnesses for defendant if they were not charged with the crime of robbery. It is elementary that a mere charge is no evidence of guilt. State v. Smith, 125 Mo. 2; State v. Taylor, 98 Mo. 240; State v. Donnelly, 130 Mo. 642; State v. Blitz, 170 Mo. 530. (3) There can be no question as to the impropriety and highly prejudicial character of the remarks of the prosecuting attorney in his closing argument to the jury concerning what Clarence Wigger, the accomplice, had confessed in his office concerning the guilt of the defendant and implicating him in other crimes and in attempting to give his reasons for so doing to the jury, and these remarks should not have been indulged in. State v. Furgerson, 152 Mo. 93. (4) The court should have sustained the demurrer to the testimony offered by the defendant at close of case on the part of the State. State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Nettles, 153 Mo. 464.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The court did not err in overruling the motion to discharge the defendant on the ground that he had not been brought to trial before the close of the third term after the information was filed. Sec. 2642, R. S. 1899; Fanning v. State, 14 Mo. 387; Kelley's Crim. Law & Prac., sec. 345; State v. Wear, 145 Mo. 222; State v. Robinson, 12 Mo. 592. (2) The court did not err in refusing an instruction in the nature of a demurrer to the evidence requested by the defendant at the close of the evidence offered by the State. The testimony of Clarence Wigger, if believed, made a clear case against the defendant, and the credibility of the witness, even though an accomplice, was a matter for the consideration of the jury, and not for the court. State v. Warner, 74 Mo. 83; State v. Hill, 96 Mo. 357; State v. Williams, 149 Mo. 496; State v. Dewitt, 152 Mo. 76; State v. Franke, 159 Mo. 535. Even though the witness was an accomplice, the uncorroborated testimony of such a witness is sufficient to sustain a conviction. State v. Williamson, 106 Mo. 162; State v. Black, 143 Mo. 166; State v. Tobie, 141 Mo. 561. (3) The court did not err in permitting the prosecuting attorney to ask witness Aubuchon whether or not he stood charged in the circuit court of St. Francois county with the crime of robbery. Such questions are permissible on cross-examination for the purpose of discrediting the witness. State v. Martin, 124 Mo. 523; State v. Pratt, 121 Mo. 574; State v. Taylor, 118 Mo. 153; Wharton's Crim. Evi., sec. 474. (4) Appellant complains of error because the court permitted the prosecuting attorney in his closing argument to the jury to state that Clarence Wigger had confessed to him, implicating the defendant in the crime. As Clarence Wigger was a witness for the State and had testified directly and in detail to the defendant's guilt, it is difficult to see in what respect the reference of the prosecuting attorney to that witness's confession could have prejudiced defendant. State v. Punshon, 133 Mo. 54; State v. Guy, 69 Mo. 430; State v. Turner, 76 Mo. 350.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the 31st day of May, 1904, the prosecuting attorney of St. Francois county filed an information charging the defendant with the crime of arson in the third degree for the burning of a saloon, the property of Z. B. Jennings, on the 20th of January, 1903. A change of venue was taken from the regular judge of said circuit, and Hon. E. M. Dearing, judge of the Twenty-First Judicial Circuit, was called as special judge to try the case.

The defendant was duly arraigned, entered his plea of not guilty, was tried and convicted, and his punishment assessed at a term of five years in the penitentiary. From the sentence imposed he has appealed to this court.

I. The first question arising on this appeal is the propriety of the ruling of the circuit court in denying the defendant's motion for his discharge on the ground that the State had failed to bring him to a trial at the end of the third term of the court after the information was filed. On the hearing of this motion, it appeared that another information, charging the defendant with this same offense, had been filed in the same court on the 30th day of July, 1903; that the defendant was admitted to bail on said first information, and at the August term, 1903, of said court said cause was continued on the application of the State, and was again continued on the application of the State at the November term, 1903, of said court. At the May term, 1904, the prosecuting attorney entered a nolle prosequi to said first information, and on the same day filed another information charging the defendant with the same offense, the latter being the information in this cause upon which the defendant was tried and convicted. The record does not show on whose application the case was continued on the new information, further than that the defendant entered into a new recognizance for his appearance at the August term, 1904, of said court. At the August term, 1904, the case was continued on the application of the State until the 29th of August, 1904, and on the last-named date it was again continued for want of time to try the same until the next term of court. At the November term, 1904, of said court, the defendant filed his motion for discharge, which was, as already said, overruled by the court and exceptions properly saved.

The contention of the defendant is that the two informations should be treated as one, and that the entering of the nolle and the filing of the new information did not affect the right of the defendant to his discharge; that in contemplation of law it was one and the same case, and the defendant was entitled to his discharge under sections 2642, 2643 and 2644, Revised Statutes 1899. Section 2642, Revised Statutes 1899, provides that, "If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term." This section and its kindred sections have been in force in this State for a great number of years. It came before this court for construction as early as Robinson v. State, 12 Mo. 592, 595, 596, and it is held in that case that the term at which the indictment is found is not to be included in the estimate of the terms at which the defendant is entitled to be tried. [State v. Haines, 160 Mo. 555, 61 S.W. 621.] In Fanning v. State, 14 Mo. 386, the point was made as now is made, by the defendant in that case, but it was held by this court that when the first indictment was nol. pros'd, it was no longer in force, and the new indictment alone and the time it was pending was to be considered.

It is therefore clear under the decisions of this court in the construction of sections 2641, 2642 and 2643, that terms of court which lapse under a prior indictment must be excluded. For this reason, the court properly overruled the motion for the discharge of the defendant.

II. It is earnestly insisted by counsel for the defendant that the evidence was insufficient to sustain a judgment of conviction, and that the court erred in refusing to direct the jury to acquit the defendant. Without encumbering this opinion with a detailed statement of all the testimony, it must suffice for the purpose of this objection to state that the evidence on behalf of the State tended to prove the following facts:

In the month of January, 1903, Z. B. Jennings was living at a small place called Esther, in St. Francois county, and was there engaged in the saloon business. The defendant, George F Wigger, and his son, were running a saloon at the same place, about three or four hundred yards to the north of the Jennings place of business. On the morning of the 20th of January, 1903, between three and four o'clock, Jennings' saloon and its contents were destroyed by fire. Incendiarism was suspected and a reward of $ 500 was offered by Jennings for information as to the guilty party. It was shown in evidence that the defendant had refused to sign Jennings' saloon petition, and that there was some ill feeling on the part of the defendant toward Jennings before the saloon was burned. Clarence Wigger, a nephew of the defendant, about twenty-three years of age, was living with the defendant at the time of the burning of the saloon. He appeared as a witness against the defendant at the trial, and testified that the defendant offered him $ 50 if he would burn Jennings' saloon; that he agreed to do it, and that defendant got the oil and rags for that purpose; that they together, on the night of the 20th of January, 1903, went to the Jennings saloon, and that while defendant stood guard he, Clarence Wigger, set fire to the saloon. Sam Wigger, a distant relative of the defendant, testified that the defendant offered him $ 100 to burn Jennings' saloon about three or four months before the same was burned. Cy Lore, a witness for the State, testified that prior to the burning of the saloon, the defendant...

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