Meyers v. Commonwealth

• Decision Date: 21 April 1922
• Citation: 194 Ky. 523,240 S.W. 71
• Parties: MEYERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

240 S.W. 71

194 Ky. 523

MEYERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 21, 1922

Appeal from Circuit Court, Bracken County.

Omar Meyers was convicted of arson, and he appeals. Reversed, with directions to grant new trial.

M Hargett, of Augusta, for appellant.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen and B. S. Grannis, Commonwealth's Atty., of Flemingsburg for the Commonwealth.

THOMAS J.

Appellant, Omar Meyers, was indicted by the grand jury of Bracken county jointly with his father, Fred Meyers, and his brother, Andy Meyers, in which they were charged with the offense of feloniously setting fire to and burning the barn of their neighbor, Wilfred Cooper, and upon his separate trial, which he demanded, he was convicted and sentenced to confinement in the penitentiary for a term of five years. He moved for a new trial, which was overruled, and he prosecutes this appeal.

Numerous alleged errors are contained in the motion for a new trial, but the principal ones argued in this court, and which are the only ones we conceive to be of any materiality, are (1) failure of the commonwealth to establish by its evidence the corpus delicti, and (2) the insufficiency of the evidence to support the conviction, which two grounds we will briefly consider in the order named.

1. It is a well-settled rule of criminal practice and procedure, which is adhered to by all Anglo-Saxon courts so far as we are aware without exception, that in criminal prosecutions there must be some competent proof of the corpus delicti, else the prosecution will fail. In the case of Spears v. State of Mississippi, 92 Miss. 613, reported in 46 So. 166, 16 L.R.A. (N. S.) 285, it was held that the corpus delicti in the crime of arson consists in proof of the burning and that the fire was caused by some criminal act. In the annotated note to the case, as reported in the above volume of L.R.A., many cases supporting the definition given by the Mississippi court are referred to, some of which are State v. Carroll, 85 Iowa 151 N.W. 1159; State v. Jones, 106 Mo. 302, 17 S.W. 366; State v. Parsons, 39 W.Va. 464, 19 S.E. 876; Phillips v. State, 29 Ga. 105; People v. Wagner, 71 A.D. 399, 75 N.Y.S. 950; State v. Pienick, 46 Wash. 523, 90 P. 645, 11 L.R.A. (N. S.) 987, 13 Ann.Cas. 800; and State v. Millmeier, 102 Iowa 692, 72 N.W. 275.

The only case referred to therein, or which we have been able to find, holding to the contrary, i. e., that the mere fact of the burning of the building without some proof of an incendiary purpose is sufficient to establish the corpus delicti, is Sam v. State, 33 Miss. 347, but that case was practically overruled by the same court in the subsequent case of Pitts v. State, 43 Miss. 472, and was in fact overruled by that court in the Spears Case, supra. The annotation referred to also cites numerous cases to the effect that slight evidence is sufficient to supply the element of an incendiary or criminal purpose, and it may be established by circumstantial evidence, as has often been held by this court may be done with respect to any other fact necessary to establish guilt upon which to found a conviction.

In this case the burned barn had a concrete floor, and in the northwest corner of it was stored a considerable quantity of loose hay. On the outside and a short distance from the floor, some of the weather boarding was loose or off, thereby exposing the bulk of hay, at a part of the barn which could not be seen from the owner's house, some 189 feet distant. The fire was first discovered at about 8:15 p. m. on December 25, 1920, at the exact spot where the hay was exposed, and it was then only about the size of a barrel head, according to the testimony of all the witnesses who first saw it. There had been no fire in or about the barn, except near the hour of 4 o'clock on the same evening the owner milked a cow in it and carried with him a lantern, the blaze of which was incased in a globe, and it was set on the concrete floor a considerable distance away from the pile of hay, and under the circumstances the fire could not have possibly originated from it, even if we did not consider the time intervening between the time of the milking and the discovery of the fire. There is nothing to indicate that the fire could have originated by spontaneous combustion, and we are therefore convinced that the circumstances are sufficient to justify the conclusion that it was of incendiary origin, which, according to the definition, supra, sufficiently establishes the corpus delicti, and this ground therefore must be overruled.

2. In considering and disposing of the second ground urged for a reversal, it will be necessary to make a brief statement of the facts. The accused, Fred Meyers, who was the father of appellant, lives about a quarter of a mile from his neighbor, Wilfred Cooper, and his family consisted at the time of himself, wife, and some seven or eight children, including appellant, Omar Meyers. The other defendant, Andy Meyers, is a married son of Fred Meyers, who had no children, and lived about the same distance from the residence of his father and also the same distance from the residence of Mr. Cooper; the three residences, as we gather from the record, forming nearly an equilateral triangle. Immediately after Mr. Cooper discovered the fire, suspecting that it was of incendiary origin, he placed a guard around the barn to prevent any one going near it and sent to Lexington for two bloodhounds, and they arrived on the scene between 3 and 4 o'clock the next morning. They were taken by their owner to the point where the fire was first discovered and there took a trail, somewhat winding in its course, and went to the door of the residence of Fred Meyers, and when they arrived there they scratched on the door. Mr. Meyers, at the request of the sheriff, who was along, came to the door, and both dogs went to him. The appellant was sleeping upstairs, and when he came down shortly thereafter, one of the dogs went to him; but neither of them went to any other person in the house. Upon leaving the house, the dogs scented and traveled a trail to the home of Andy Meyers, whose wife was away, and he was the sole occupant. From Andy's house a trail was taken along the third side of the triangle to the barn at the place of beginning. The trail from Andy's house to the barn crossed a branch and a wire fence. Some human tracks were found near the branch, and mud was discovered on some of the wires of the fence, indicating that it had been crossed by some one with muddy feet; but no measurement of any of the tracks was made, nor does the testimony attempt to connect either of the defendants therewith. It was shown that the bloodhounds used on the occasion were highly bred and thoroughly trained for the purpose of trailing human beings, and that one of them had been so engaged for as much as 7 1/2 years and the other for as much as 3 years, and that during that time their performance and work had been accurate and satisfactory. In addition to the testimony furnished by the trailng of the bloodhounds, it was proven by the commonwealth that some time before the fire (the exactness of which is not shown) the appellant and his brother Andy Meyers each filed a slander suit against another neighbor by the name of Taylor, in which they alleged that he had slandered them in the presence and hearing of Wilfred Cooper by accusing them of stealing a mattock and an ax, and they each sought damages in the sum of $10,000. Shortly after filing those suits, the plaintiffs therein learned that Cooper would not testify to the alleged slanderous words, as charged in the petitions, and that he would only swear that Taylor in the alleged slanderous statement used the word "took" instead of the word "stole." Subsequently they met Cooper, and, according to his testimony, this occurred:

"They stopped me, Andy, and Omar, and told me that a fellow told them that I wasn't going to swear that John Taylor said they stole the mattock and the ax. I asked them who told them that. They wouldn't tell me, and they started on, and they said, 'You better,' and went on."

The slander suits were afterwards dismissed without a trial.

After the meeting testified to by Cooper, the record discloses, in a very indistinct and unsatisfactory manner, that some mischievous depredations were committed on his premises consisting of driving a buggy through his ripe tobacco patch, driving tobacco sticks through piles of tobacco stacked in his field, throwing his farming implements and tools in the creek, and leaving his gates open so as to allow stock...