Billings v. State
| Decision Date | 03 December 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 503 S.W.2d 57 |
| Parties | Carl BILLING, Appellant, v. STATE of Missouri, Respondent. 26363. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, 16th Judicial Circuit, B. William Jacob, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
The defendant was convicted of arson under § 560.010, RSMo 1969, V.A.M.S., and was sentenced to imprisonment for a term of twenty years. On this appeal, the defendant does not question the sufficiency of the proof, so a shortened recital of the evidence is adequate to meet the points in issue.
In the early morning of July 9, 1971, defendant Billings was riding around in a 1962 Buick automobile with white body and black top owned by Glenn Terry, who was driving. They were on a carouse drinking beer from bar to bar. The automobile was distinctive because the right side was caved in and had neither bumper nor muffler, so that when in operation, it made the sound of a racing car. According to Terry, when they reached the vicinity of a residence known to Terry to be that of Mr. and Mrs. Bradford, Billings directed him to stop the car. Billings then retrieved a large pop bottle from the back seat, lit the wick, walked to the Bradford residence, and tossed the flaming bottle through the picture window. The house came ablaze. Billings ran back to the car which took off as fast as it would go. The noise of the car and the crash of the glass attracted Mrs. Bradford to the window of the sleeping porch on the second floor where she had been lying. She saw a light colored car with a dark top pulling away from just below her window and recognized defendant Billings occupying the passenger side facing the house. She had seen him many times before. (There had been animus between the Bradfords and the defendant Billings from the sale of a house for which the defendant refused to pay and whose possession he relinquished only after he had despoiled the plumbing.) Mrs. Bradford ran downstairs and found the front room of the house of fire. She roused her husband and called the fire department. When the fire was extinguished a large broken Vess Cola bottle and wick were found just inside the picture window which had been shattered. Mr. James C. Pugh of the Kansas City, Missouri Fire Department took custody of the bottle and wick and then delivered it to Officer Willie Beck of the Kansas City, Missouri Police Department Arson Squad.
From the scene of the arson, Terry and Billings went to the defendant's house, parked the car, and left in the car of defendant Billings. They returned to the vicinity of the Bradford residence, which by now was attended by a number of police vehiles. As they pulled into a driveway nearby, the police took the defendant into custody in arrest.
At the trial, Mr. Pugh of the Fire Department was allowed to testify that the cause of the fire was the Vess Cola bottle filled with a flammable liquid and ignited by a wick thrown through the dining room window of the Bradford home.
The first point of error appellant asserts is that during the trial numerous instances of prejudicial testimony reached the jury, without objection by trial counsel or intervention of the trial court, which deprived appellant of a fair trial and which, unless corrected on this appeal under the doctrine of plain error, will result in a manifest injustice. Appellant cites seven instances of prejudice. The first three relate to testimony which characterized the instrument of incineration as a bomb and the incendiary event as a bombing. Police Officer Quinn identified the photograph of the burned house as a representation of 'the house which was bombed'. While this answer from a witness who was not presented as an expert on the origins of fires was subject to valid objection, there was substantial evidence later in the trial that the fire was precipatated by a bomb as to render this error harmless. The other two incidents relate to the testimony of James Pugh of the Fire Department. In response to the question of the prosecutor as to what he found when he arrived at the Bradford premises, he responded: 'Lying on the floor was the remains of a fire bomb, a broken bottle and a wick amidst the debris that was caused by the missile being thrown through the window'. When he gave this testimony, however, Pugh had been qualified as an expert and this testimony, which had a substantial basis in the facts, was not subject to objection. Butcher v. Main, 426 S.W.2d 356, 359(3, 4) (Mo.1968). Mr. Pugh was later asked by the prosecutor to identify a bottle found at the scene. He responded by reading the identifying label he had affixed to the object: 'Fire bomb throwed through the window at 1716 Kensington, approximately two twenty a.m., July 9th, '71'. The objection by trial counsel for appellant that the answer was a conclusion of the witness as to how the bomb 'got there' was sustained by the court and the jury was instructed to disregard it. The court accorded appellant the full relief requested and no error resulted.
The remaining four instances of testimonial prejudice which appellant asks we correct as plain error relate to the testimony of Mr. Bradford who, with his wife, were the victims of the fire. First, appellant contends that Bradford's testimony, given without objection or admonition by the court, that the Fire Marshal had told him that but for the window shutters the Bradfords would not have been able to make it out of the house, was prejudicial hearsay and speculation. While it may be conceded that this response should have been excluded and its impression corrected upon a proper objection, from the whole record we cannot say that it had a decisive effect on the jury or that a miscarriage of justice resulted. State v. Elmore, 467 S.W.2d 915, 918(3) (Mo.1971). Mr. Bradford was then asked to identify the bottle exhibit. He answered...
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