State v. Cox
| Decision Date | 30 March 1915 |
| Citation | 175 S.W. 50,264 Mo. 408 |
| Parties | THE STATE v. ARTHUR COX, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.
Affirmed.
Clarence A. Barnes for appellant.
(1) The corpus delicti of arson in the third degree was not proven first, a criminal act; second the defendant's agency in the production of a criminal act. State v. Jones, 106 Mo. 302. (2) The alleged confession of defendant was not supported by independent proof of the corpus delicti. State v. Young, 237 Mo. 170; Robinson v State, 12 Mo. 592; State v. Scott, 39 Mo. 424. (3) There is no proof of an inducing motive for the burning of the building by defendant, that he anticipated any benefit from its burning, or that he entertained any malice or ill will towards its owners or occupants, and the same should be taken into consideration. State v. Morney, 196 Mo 51. (4) The court erred in permitting the State to introduce evidence of the burning of other buildings than the one charged in the information, and in permitting the prosecuting attorney to refer thereto in his opening statement and in his argument. State v. Goetz, 34 Mo. 85; State v. Young, 119 Mo. 495; State v. Apperger, 80 Mo. 173; State v. Crosswhite, 130 Mo. 358; State v. Taylor, 136 Mo. 66. (5) Th amendment of the information and forcing the defendant to trial without first giving him a preliminary examination on the amended information was error. Laws 1913, p. 224. (6) Instruction 3 offered on the part of the State was error for the reason that it failed to properly caution the jury with reference to the so-called confession of the defendant. State v. Peters, 234 Mo. 572; Baldwin v. State, 12 Mo. 223; Robinson v. State, 12 Mo. 596; State v. Young, 237 Mo. 170; State v. Jones, 54 Mo. 478; State v. Hopkirk, 84 Mo. 278.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) The corpus delicti was sufficiently proven according to the decisions of this court. State v. Jones, 106 Mo. 302, cited by the appellant, in every way substantiates the proof of the corpus delicti in the case at bar. There was not a mere suspicion of guilt in this case. The appellant admitted he set the fire, and the burning of the barn was clearly proven. The cases cited by the appellant are not in point, and there is no merit in this contention. (2) The alleged confession was supported by other proof. In this case the burning of the barn was proven, and together with this the appellant confessed to burning same. Appellant's contention is without merit, and the proof of the burning of the barn sufficiently supports the confession. The evidence is ample to support the verdict of the jury. (3) Proof of motive is not necessary. (4) Error was not committed in allowing in evidence the burning of the other buildings. The evidence of the commission of other offenses is admissible where the identity of the defendant was a controverted question. State v. Hubbard, 201 Mo. 639; State v. Hyde, 234 Mo. 200. Similar crimes committed at or near the same time are admitted in evidence. State v. Bailey, 190 Mo. 257; State v. Toohey, 203 Mo. 674; State v. Sechrist, 226 Mo. 574. (5) When the information is amended it is not necessary that the appellant be given another preliminary hearing. (6) In view of the authorities in this State, and especially the case of State v. Creeley, 254 Mo. 382, where instruction 3 was approved after much discussion, it cannot be successfully contended by the appellant a prejudicial error was committed by the court in giving the same. State v. Creeley, 254 Mo. 396; State v. Merkel, 189 Mo. 321; State v. Howell, 117 Mo. 307; State v. Wisdom, 119 Mo. 539; Green v. State, 13 Mo. 392.
Defendant was convicted of arson in the third degree and sentenced to two years in the penitentiary. The amended information is in the usual form and charges him with burning a barn belonging to Willard Potts and Susan Potts on November 12, 1913. On the night of that day three fires occurred between the hours of 11:45 p. m. and 1 a. m., and all within a very short distance of each other and of the Chicago & Alton station in the city of Mexico. The first fire was in a coal or wood shed back of Creasy's second hand store; the second in a barn back of the printing company's place of business; the third in Potts's barn north of the railroad, about a hundred and fifteen or twenty feet from the station. A few minutes before the first fire the defendant went into Genrich's restaurant and got some matches, which was a usual thing for him and others to do. A few minutes later he was seen running along the street looking back, then running into an alley. Then followed the first fire, and after twenty or thirty minutes the second fire broke out. Defendant was seen at all the fires. At the second fire he was heard to say to his uncle Tom Cook, "Let's leave here." Just before the third fire he got matches at Winan's restaurant. One witness testified that defendant was "canning beer" that night. Another said that he was "drinking."
The last fire was the one for which defendant was convicted. State's counsel, over defendant's objection, was permitted to include the first two fires in his statement to the jury and to introduce evidence in regard to them. There was evidence that a train came in just before the last fire and that the wind was from the southward, blowing from the tracks towards the barn, and that at times locomotives had been known to throw sparks 25 feet high.
There was evidence that the last fire began in the loft of the barn in some baled hay or straw.
There was no evidence showing motive for the deed. Defendant was arrested that night, and the next morning he stated in the presence of the prosecuting attorney, sheriff and others, that he set all three of the fires. The State's witnesses stated that no improper method was used to obtain the confession, and there was no evidence to the contrary.
The court gave the usual instructions including the one on the subject of statements made by the defendant out of court. The fourth instruction told the jury that the defendant was presumed to be innocent until his guilt was "shown" by the evidence beyond a reasonable doubt.
Just before the trial began, the State was permitted to amend the information by interlineation so as to show Susan Potts as one of the owners of the barn. Defendant then orally asked that he be accorded a preliminary examination on the information as amended. The request was refused, but there was no motion in regard to that matter.
I. The corpus delicti in arson is the burning of the house by the wilful act of some person criminally responsible for his acts, and not by natural or accidental causes. [State v. Jones, 106 Mo. 302, 312, 17 S.W. 366; 1 Whar., Crim. Ev. (10 Ed.), sec. 325a.]
"A confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that a crime was in fact committed." [State v. Young, 237 Mo. 170, 177, 140 S.W. 873, and cases there cited.]
In State v. Knowles, 185 Mo. 141, 177, 83 S.W. 1083, it was said that full proof of the corpus delicti, independent of the confession of the defendant, is not required; and that it is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of defendant's guilt.
Appellant contends that, outside of the alleged confession, there is no evidence of the corpus delicti. In connection with that proposition it is urged that the evidence as to the two other fires was improperly admitted. The general rule is that evidence as to other fires at or about the same time and place is inadmissible, "but if it tends to directly connect defendant with the burning alleged in the indictment, to establish intent, or to show the incendiary origin of the crime, it may be received. [3 Cyc., 1007.] In State v. McMahon, 17 Nev. 365, 30 P. 1000, testimony as to ten other fires within two months in the same town was held proper in order to show that the fires were of incendiary origin.
In England, in Reg. v. Dossett, 2 Car. & K. 306, the defendant was charged with setting a hayrick on fire by discharging a gun close to it. Evidence was admitted showing that on another occasion defendant was seen with a gun in his hand near the rick which was then on fire. In Rex v. Long, 6 Car. & P. 179, decided at nisi prius in 1833, the defendant was charged with burning three hayricks, each belonging to a different person, they being burned one immediately after the other, and in sight of each other. There were separate indictments for each rick. A confession as to all three was put in evidence, and an accomplice testified as to all three as constituting part of the same transaction.
In Reg. v. Gray, 4 Fost. & Fin. 1102, the prisoner was...
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