State v. Bliss

• Decision Date: 05 March 1935
• Docket Number: No. 33428.,33428.
• Citation: 80 S.W.2d 162
• Parties: STATE v. BLISS et al.
• Court: Missouri Supreme Court

80 S.W.2d 162

STATE v. BLISS et al.

No. 33428.

Supreme Court of Missouri, Division No. 2.

March 5, 1935.

Appeal from Circuit Court, Ripley County; R. I. Cope, Judge.

Elbert Bliss and Walter Compton were convicted of an attempt to set fire to and burn a store building, and they appeal.

Reversed and remanded with directions.

Richeson & Richeson, of Potosi, for appellants.

Roy McKittrick, Atty. Gen., and William Orr Sawyers, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Elbert Bliss and Walter Compton were charged with an attempt to set fire to and burn a certain building in Ripley county, Mo., in March, 1933. The record proper shows the filing of an amended information, an arraignment, and pleas of not guilty, the impaneling and swearing of a jury, a trial, the return of a verdict of guilty, with two years imprisonment assessed, the filing and overruling of defendants' motion for new trial; that thereafter, upon allocution, judgment and sentence were pronounced, and, upon application, defendants were granted an appeal to this court. All the above entries appear under date of June 22, 1933.

Although appellants have filed a brief on the merits, the Attorney General has rested the state's submission of the case on the record proper.

The transcript of the record proper is certified to under date of December 28, 1933, and was filed here December 30, 1933. Thereafter, there was filed here what appears to be the original bill of exceptions, apparently signed by the judge of the circuit court of Ripley county, and indorsed, "Filed Oct. 25th, 1933, James O. Stanley, Clerk." The bill of exceptions does not have attached to it nor does it contain a certificate of any nature by the circuit clerk as to its genuineness, correctness, or authenticity, and the record proper contains no reference whatsoever to any bill of exceptions. As stated in State v. Mele (Mo. Sup.) 71 S.W.(2d) 718 (1): "We have repeatedly held that, absent proper authentication by the clerk of the circuit court, we cannot consider matters contained in a purported copy of a bill of exceptions nor in the purported original bill if filed here. * * * This question has been so often considered and decided by this court that further discussion thereof is needless." State v. White, 315 Mo. 1276, 1278, 288 S. W. 18, 19 (3) (in banc), and cases cited; State v. Miller, 322 Mo. 1199, 1201, 18 S.W.(2d) 492, 493 (2); State v. Kelsay (Mo. Sup.) 18 S.W.(2d) 491 (3); State v. Harbeston, 330 Mo. 799, 800 (1), 51 S.W.(2d) 533, 534 (1); State v. Ross (Mo. Sup.) 69 S.W.(2d) 293, 294 (1); State v. Corey (Mo. Sup.) 69 S.W.(2d) 297, 298 (1); State v. Carel (Mo. Sup.) 69 S.W.(2d) 296 (1); State v. Thomas, 331 Mo. 299, 300 (1), 53 S.W.(2d) 266, 267 (1); State v. Brown, 312 Mo. 340, 342, 279 S. W. 98 (1); State v. Brown, 216 Mo. 375, 377, 115 S. W. 986. This is not a capital case. As to the responsibility of litigants or their counsel to file here certified copies of the proceedings in the trial courts properly preserving the issues for review, see State v. Kelsay (Mo. Sup.) 18 S.W.(2d) 491 (4); State v. Barrett (Mo. Sup.) 44 S.W.(2d) 76, 78 (6); sections 3756, 3757, 3742, Mo. St. Ann., pp. 3292, 3295, 3287, respectively.

Omitting technical phrases and summarizing the amended information, it charges defendants unlawfully, feloniously, willfully, and maliciously did attempt to set fire to and burn a certain store building, the property of Willis Ponder (describing the location of said building), and, in said attempt toward the commission of said offense, did obtain two gallons of coal oil, take it to said store building, and with a crowbar prize open the outer door of said building with intent to enter said store building to pour said coal oil on certain boards and other materials in said store building and to set fire to same and thereby to set fire to and burn said store building, but defendants failed in the perpetration of said offense and were interrupted, intercepted, and prevented in executing and perpetrating said offense.

Defendants contend the crime of attempted arson is defined by section 4041, R. S. 1929, Mo. St. Ann. § 4041, p. 2846, and the information should be based thereon. Said section, in so far as material, provides: "Every person who shall wilfully attempt to set fire to * * * any buildings or property mentioned in the foregoing sections [sections 4036-4040, R. S. 1929, Mo. St. Ann. §§ 4036-4040, pp. 2841-2845] * * * shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than five years. * * *" Section 4041 classifies an "attempt to set fire to" such buildings or property a felony and fixes the punishment for that offense, and removes the punishment for "attempted arson" from the provisions of section 4442, R. S. 1929, Mo. St. Ann. § 4442, p. 3048, containing general provisions for the punishment of "attempted" offenses. Section 4039, p. 2844, supra (one of the "foregoing sections" mentioned in section 4041), provides: "Any person who shall wilfully set fire to, burn or cause to be burned any * * * building, * * * being the property of another, * * * shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years." The attempted arson under the allegations of the instant information falls within the provisions of section 4039, supra, as the offense, from said allegations, would have been classified under said section had it been completed. We hold the information good against this attack.

Does the information sufficiently allege the "attempt"? "An attempt to commit a crime consists of three elements: (1) The intention to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission." 16 C. J., p. 113; State v. Davis, 319 Mo. 1222, 1228, 6 S.W.(2d) 609, 611. In State v. Block, 333 Mo. 127, 132, 62 S.W. (2d) 428, 431 (5), the court said: "It is essential that all three of these elements be alleged in the indictment to make it sufficient." We think the instant information meets these requirements. No question exists as to the sufficiency of the allegations with reference to the intent to commit the crime and the failure to consummate its commission. Under the allegations of the information, the defendants were the actors, performing the acts set forth with the means at hand to accomplish...