State v. Berkowitz

• Citation: 29 S.W.2d 150,325 Mo. 519
• Decision Date: 11 June 1930
• Docket Number: 30174
• Parties: The State v. Max Berkowitz, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 150

325 Mo. 519

The State v. Max Berkowitz, Appellant

No. 30174

Supreme Court of Missouri

June 11, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Abbott Fauntleroy, Cullen & Edwards for appellant.

(1) The case is purely circumstantial. Defendant denies most positively any participation in the act alleged. The theory of the State must be that he actually, himself, set fire to the premises. The State offered one witness -- an itinerant yardman whose position in society entitles him to little or no consideration. Opposed to this testimony is the testimony of reputable citizens proving a perfect and complete alibi and the testimony as to this alibi is not contradicted by any person or by any facts or circumstances. The defendant was on most friendly relations with the occupant of the building and could possibly have no motive to cause her loss or injury. The State attempted to prove insurance, but utterly failed to prove that he was over-insured, but on the contrary proved that he was under-insured. Hence there is an utter failure to prove any motive in the case and the testimony taken as a whole does not point conclusively to the guilt of the defendant nor does it exclude every other hypothesis save the guilt of the defendant, and hence defendant was entitled to a discharge at the close of all the evidence. Underhill's Criminal Evidence (3 Ed.) sec. 561, p. 793. (2) The defendant, by the indictment, was charged with arson in the second degree, under Section 3284, which makes it an offense to willfully set fire to or burn any shop, not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house. The variance here is as to the gist of the offense. The offense which the testimony tended to prove was that of arson in the third degree and the proof showed conclusively that the building occupied by Mrs. Brennan and the defendant was one dwelling house. 22 Ency. Pl. & Prac. 579; State v Jones, 171 Mo. 404; Spears v. State, 16 L. R. A. (N. S.) 284, 46 So. 166. (3) The court erred in refusing to give defendant's Instruction B, which advised the jury that there was no evidence in the case tending to show that the personal property in the building in which the fire occurred was insured in excess of its actual or fair cash value and the refusal of said instruction was erroneous because, if the property insured was not less in value than the amount of insurance carried, such testimony was incompetent and not material to any issue in the case and had no tendency to prove that defendant had a motive to commit the crime wherewith he stands charged. Stitz v. State, 4 N.E. 147; People v. Kelly, 42 N.Y.S. 756; People v. Doneburg, 98 N.Y. 438; Lane v. Commonwealth, 121 Ky. (S. W.) 488. (4) The court erred in admitting in evidence the testimony of the witness Brown relating to the fact that defendant requested her to remove from the premises, and stated that he intended to make other arrangements about the occupancy of said premises, and erred in refusing to strike said testimony out on the motion of the defendant, and erred in refusing to give Instruction E withdrawing said testimony from the consideration of the jury, for the reason that said testimony was irrelevant, immaterial and so remote as not to prove or tend to prove any fact in the case, and was prejudicial to the rights of the defendant in that it allowed the jury to draw inferences against the defendant from testimony that had no legal or logical tendency to prove any material fact in the case. United States v. Ross, 92 U.S. 283; Manning v. Insurance Co., 100 U.S. 693; Brauer v. United States, 299 F. 13; Xenia Bank v. Stewart, 114 U.S. 231; Peck v. Heurich, 167 U.S. 624; Vicksburg & M. R. Co. v. O'Brien, 119 U.S. 99; Crawford v. United States, 212 U.S. 183; Yaggle v. Allen, 48 N.Y.S. 227. (5) The court erred in permitting the prosecuting attorney to cross-examine the defendant in relation to a statement made to a witness later offered by the State to the tenor and purport that if she (the said witness) would testify for him and testify to the effect that he was not at home on the day of the fire, he would compensate her for it, and further interrogating the defendant and asking him if he did not bring said witness over to his place of business and while there make a proposition to her to the effect that he would pay her well for giving testimony in his behalf at the trial of the case, because said examination was entirely outside of the examination of the defendant in chief, and was a violation of the statutes and a violation of constitutional provisions which provide that a witness cannot be compelled to testify against himself, and a violation of the law which declares that defendant cannot be interrogated about any fact not mentioned by him in his direct examination. State v. Banks, 258 Mo. 493; State v. Vandiver, 149 Mo. 502; State v. Sprey, 174 Mo. 569; State v. Philips, 233 Mo. 299; State v. Santino, 186 S.W. 967.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) In arson the corpus delicti is established by showing: (a) The burning of the building, and (b), the agency of the defendant therein. (2) In support of the latter element the following is shown: (a) The presence of the defendant at the scene ten minutes before the fire; (b) the sudden explosion and rapid spread of the fire. Thus the evidence is circumstantial, and the sufficiency thereof to establish the second element of corpus delicti appears to be the important question in the case. (3) The evidence sufficiently establishes the existence of a "dwelling house" separate and apart from that of the defendant, and that they adjoined, thus substantiating the charge laid in the information. Hence there is no variance. Sec. 3284, R. S. 1919. Evidence to show a motive is always admissible. State v. Santino, 186 S.W. 976; State v. Wheaton, 221 S.W. 26; State v. Aitken, 240 Mo. 254. (a) That defendant's property was insured was indicative of a motive to set fire to the premises in question, and such evidence is admissible. People v. Mooney, 132 Cal. 13, 63 P. 1070; State v. Harvey, 130 Iowa 394, 106 N.W. 938; Lane v. Commonwealth, 134 Ky. 519, 121 S.W. 486; Hooker v. State, 98 Md. 145, 1 Ann. Cas. 644. (b) That such evidence might also have supported a charge under Section 3284 cannot render it inadmissible; neither does its admission result in a variance. (4) The amount of insurance carried was not an issue; hence instructions B and C were properly refused even if they were not comments upon the evidence. (5) Instruction D was properly refused, because amply covered by the State's main instruction. (6) To justify reversal because of admission of remoteness testimony, the testimony must have tended to prejudice defendant in the eyes of the jury. The admission of such testimony is largely in the discretion of the court. State v. Fenley, 309 Mo. 520, 275 S.W. 36; State v. Burgess, 193 S.W. 821; State v. Allen, 246 S.W. 946. If, therefore, the admission of such testimony in the first instance was not reversible error, neither was it error to refuse Instruction E. (7) The instruction on alibi has been repeatedly approved by this court. State v. Bonner, 259 Mo. 342; State v. Anglin, 222 S.W. 776; State v. Shelton, 223 Mo. 118; State v. Brown, 247 Mo. 715. (8) Defendant may be cross-examined only on matters referred to in his examination in chief. Sec. 4036, R. S. 1919. But need not be limited to a mere categorical review of such matters. State v. Miller, 156 Mo. 76, 56 S.W. 907. The question was asked if defendant started the fire or knew anything of its origin. This opened a large field for cross-examination concerning his knowledge of its origin, and that knowledge may properly be shown by his conversation with others.

OPINION

Blair, P. J.

Defendant was charged with and convicted of the crime of arson in the second degree. His punishment was fixed by the jury at imprisonment in the state penitentiary for three years, and he has appealed.

As the sufficiency of the evidence to authorize conviction is strenuously challenged, a rather full statement of facts is required. The evidence was wholly circumstantial. Defendant operated a shoe store and shoe-repair shop on the first floor of a building at the corner of Hodiamont Avenue and Horton Street, in St. Louis, known as 1048 Hodiamont Avenue. With his wife and two children he occupied the second floor of the building as a residence. There was a third floor, but it was not shown to have been occupied at the time of the fire.

The value of defendant's stock of shoes, shoe-repairing machinery and household goods was not shown. Evidence was admitted concerning insurance policies issued to defendant. A policy for $ 2,000, covering at 1048 Hodiamont Avenue, was issued to defendant on March 5, 1928. Half of the insurance was on the merchandise and half on fixtures. On March 23, 1928, another $ 1000 policy of insurance was placed on defendant's household furniture. The fire occurred on the night of Sunday, April 29, 1928.

Evidence was offered by the State which tended to show the following additional facts: Two policemen were walking their beat on Hodiamont Avenue quite near defendant's premises at about 10:30 P. M. when an explosion was heard. By the time they could turn and look flames were shooting out of the front of defendant's store. The fire department was summoned immediately and arrived promptly. It was then found that the fire was general on the first floor and stairway and had spread to the second floor. The blaze seems to have been soon extinguished. The fire was burning furiously when first...