State v. Blankenship

• Decision Date: 10 June 1932
• Docket Number: 31810
• Citation: 50 S.W.2d 1024,330 Mo. 792
• Parties: The State v. William Blankenship and L. v. Gray, Appellants
• Court: Missouri Supreme Court

50 S.W.2d 1024

330 Mo. 792

The State v. William Blankenship and L. v. Gray, Appellants

No. 31810

Supreme Court of Missouri

June 10, 1932

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Reversed and defendants discharged.

Sharp & Baynes for appellants.

(1) There was no substantial evidence to go to the jury connecting the defendants with the commission of the alleged crime and under the circumstances the court should have given defendants' asked instructions in the nature of a demurrer to the testimony at the close of the whole case. State v. Adkins, 222 S.W. 431; State v Marney, 196 Mo. 43; State v. Kinneman, 214 Mo 662; State v. Willard, 111 Mo. 248; State v. Archer, 6 S.W.2d 912; State v. Eklof, 11 S.W.2d 1033; State v. Bailey, 286 S.W. 422; State v. Crabtree, 170 Mo. 657; State v. Kurtz, 286 S.W. 135; State v. Bowman, 294 Mo. 245, 243 S.W. 110; State v. Nagle, 32 S.W.2d 601; State v. Willoughby, 34 S.W.2d 7; State v. Young, 237 Mo. 170; State v. Perkins, 18 S.W.2d 8; State v. Ballard, 104 Mo. 634; State v. Leslie Freyer (decided April 8, 1932, not yet reported). (2) The information in this case was bad for duplicity attempting to charge two separate and distinct offenses in a single count. R. S. 1929, section 4039; State v. Healey, 50 Mo.App. 243. (3) In order to sustain a conviction upon purely circumstantial evidence the circumstances must all point towards defendants' guilt and be consistent with each other and inconsistent with a reasonable hypothesis of defendants' innocence. (4) There is an entire absence of any motive shown tending in any degree to connect defendants with the alleged crime. State v. Crabtree, 170 Mo. 657; State v. Marney, 196 Mo. 51. (5) The State wholly failed to prove the corpus delicti while it did prove that the house burned there was an entire absence of evidence showing that it was probably fired by anyone. State v. Young, 237 Mo. 170; State v. Marney, 196 Mo. 50; State v. Cox, 264 Mo. 412; State v. Adkins, 220 S.W. 465.

Stratton Shartel, Attorney-General, for respondent; James K. Coolidge of counsel.

(1) The information is sufficient. It contains all the necessary averments required to properly charge the crime of arson, and substantially follows the language of the statute. Sec. 4039, R. S. 1929; State v. Hunt, 190 Mo. 353; State v. Myer, 259 Mo. 306; State v. Jackson, 267 S.W. 855; State v. Jones, 171 Mo. 401; State v. Rudman, 37 S.W.2d 409. (2) The corpus delicti in the crime of arson is: (a) The incendiary burning of the building, and (b) The guilty agency of the defendant therein. Both the incendiary origin of the fire and the guilty agency of the defendant may be established by circumstantial evidence. State v. Berkowitz, 29 S.W.2d 150. (3) Appellants' assignments of error numbers 1, 2, and 9 may be considered together as they all challenge the sufficiency of the evidence to sustain the verdict. (a) The evidence was sufficient to submit the case to the jury. State v. Dworkin, 307 Mo. 487; State v. Santino, 186 S.W. 976; State v. Berkowitz, 29 S.W.2d 150; State v. Jackson, 267 S.W. 855; State v. Henson, 290 Mo. 238. (b) Where the evidence was sufficient to take the case to the jury and the essential elements of the crime are shown by substantial evidence, this court will not disturb the jury's verdict. State v. Thomas, 1 S.W.2d 157; State v. English, 11 S.W.2d 1020; State v. Farrell, 6 S.W.2d 857. (c) This court will not pass upon the weight of the evidence before the jury except in so far as to determine whether the verdict of the jury is supported by substantial evidence. State v. Hamilton, 304 Mo. 24.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellants, young men about twenty years of age when tried, were charged with the crime of arson in an information filed by the Prosecuting Attorney of New Madrid County. They were found guilty and their punishment was assessed at two years in the penitentiary. From the sentence and judgment they appealed. The principal question for decision is the sufficiency of the evidence. The case presented by the State was in substance as follows: On Halloween night, October 31 1930, there stood a box-shaped house on D. L. Fisher's farm over south of Canalou, in New Madrid County. The house was "in the corner of the fence" at a crossroads. The farm was rented from Fisher by John Ingram and W. H. Summers, and Fisher let them have the use of the unoccupied house at the crossroads to store hay and soy beans. On the night of the fire Ingram and Summers had in the house 111 bales of hay and several loads of pulled soy beans. The hay had been put in a few days before October 31, and the beans on that day. Ingram and Summers lived in a dwelling on the farm about 150 or 200 yards from the storehouse. Ingram had retired and was asleep on the night of October 31, 1930. But about 8:30 o'clock, he was awakened by the light of the burning storehouse. He aroused Summers who just had gone to bed and the two hurried to the fire. On the way they met four or five neighbors, and soon others to the number of a dozen came, some on foot and others on horseback. Appellants who lived about a mile and a half south and west of the crossroads, were among the later spectators. Ingram testified that appellants arrived from the direction of their homes about fifteen or twenty minutes after he reached the fire. But Summers fixed their coming at thirty minutes after he and Ingram got there and after the house had fallen in. Summers overheard appellant Gray say, while watching the fire: "It made a hell of a fire didn't it?" On cross-examination Summers admitted it did make a big fire. About eight o'clock, and before the fire, Summers went outdoors of the dwelling house and heard the voices of several persons at the crossroads. At least some of the group were mounted for he heard the movement of the horses. Among the voices he recognized that of appellant Blankenship. But Summers paid no attention to the talking at the corner for the crossroads was a favorite halting place for passing people and there were many abroad that Halloween night.

Virgil Ford, a lad about the age of appellants, testified that he rode his horse to the home of appellant Blankenship about sundown on that Halloween. Soon came Nobel McGuire on his horse, and other young men gathered. In a short time the youths went to the home of a companion named Crabtree, and from there appellants and Ford and McGuire started for a place called Charter Oak where, it was reported, a dance was to be held. Gray rode behind Ford and Blankenship behind McGuire. They passed the storage house and went about a mile and a half further to the scene of the dance. But no dance was being held and they rode back to the crossroads. There the four stopped and talked for awhile and then appellants, Blankenship and Gray, got off the horses and started south toward their homes while Ford and McGuire galloped homeward to the east.

Ford on direct examination testified that, as the four rode back toward the crossroads and as they approached the storehouse, one of the appellants said to the other: "Are we going to set it?" The answer was: "Yes." Ford did not know which of the appellants asked the question or which answered. On cross-examination Ford testified further about this statement of one of the appellants:

"Q. When you first told it you stated that one one of the boys said: 'Are you going to do it?' and the other one said: 'Yes?' A. Yes, sir.

"Q. When did you first think about saying, 'Set?' A. Well they was talking about, was we going to do it, and the other one said 'Yes.'

"Q. When you first testified a while ago you said one of the boys said, 'Are we going to set it,' how come you to do that? A. It is all the same.

"Q. It is all the same? A. Yes, sir.

"Q. When a boy says 'Are we going to do it,' it is all the same as saying, 'Are we going to set it?' A. In a way it is.

"Q. But what the boy actually said is, 'Are we going to do it?' A. Yes, sir."

Ford and McGuire had ridden about a half mile from the crossroads and had dismounted and were walking when they first observed the illumination caused by the fire. But they did not go back.

McGuire testified for the State substantially as did Ford about the assembly of the young men at Blankenship's house, their visit to Crabtree's, the horseback ride to the dance, their return to the crossroads and their separation there after some conversation.

On direct examination McGuire testified:

"Q. When you passed this house did either one of the defendants say anything about the house? A. Only asked us to help burn it.

"Q. Tell the jury what they said. A. We was riding along and one of the boys, I don't know which one, asked me if I would help burn it, and I said, 'No.'"

But on cross-examination McGuire contradicted this testimony in this manner:

"Q. Don't you know that you never said a word about any such conversation as that when you testified here before? A. No sir.

"Q. Isn't this what you said, that one of the boys said, 'Are we going to do that,' and one of the other boys said, 'Yes,' wasn't that what you testified to? A. (No answer.)

"Q. Come clean with it. A. I am not positive.

"Q. That is what you said, isn't it? A. I don't know.

"Q. You were sworn down here and asked what the boys said, and you testified that one of the boys said, 'Are you going to do that,' and the other boy said, 'Yes.' That is what you testified down here? A. Yes, sir.

"Q. And you didn't say anything about either of the boys asking you to burn anything, did you? A. No.

"Q. Why didn't you? A. Why didn't I?

"Q. Yes? A. If that is right, what I told you is right, and that is why I didn't.

"Q. What you said at the preliminary is right then? A....