State v. Guinn

• Decision Date: 19 May 1903
• Parties: STATE v. GUINN.
• Court: Missouri Supreme Court

74 S.W. 614

174 Mo. 680

STATE v. GUINN.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

CRIMINAL LAW—REQUESTED INSTRUCTION— FAILURE OF DEFENDANT TO TESTIFY—COMMENT BY PROSECUTING ATTORNEY.

1. Requested instructions covered by instructions given at the instance of the other party or by the court in its general charge are properly refused.

2. Rev. St. 1899, § 2638, provides that if the accused shall not testify, or if the wife or husband shall not testify, on the trial, it shall not raise any presumption of the innocence or guilt of the accused, nor be referred to by any attorney in the case. In a prosecution for arson, defendant and his wife both took the stand in defendant's behalf, and the prosecuting attorney was allowed, after objection, to comment, without rebuke, as to what they might have testified, but did not testify, to in relation to where the policy of insurance on the burned building might have been found. Held, that a conviction would be reversed.

Appeal from Circuit Court, Nodaway County; Gallatin Craig, Judge.

William Guinn was convicted of arson, and appeals. Reversed.

L. C. Cook, B. R. Martin, and J. S. Shinabargar, for appellant. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

BURGESS, J.

On June 27, 1902, defendant was convicted in the circuit court of Nodaway county under an indictment charging him with arson in the third degree, and his punishment fixed at five years' imprisonment in the penitentiary. He appeals.

The facts are about as follows: "On the 21st day of June, 1898, the grand jury of Nodaway county returned a true bill of indictment against this defendant for arson in the third degree. Prior thereto a preliminary examination was had. The defendant gave bond in the sum of seven hundred and fifty dollars for his appearance on the first day of the June term, 1898, of the Nodaway circuit court, and therein bound himself not to depart without leave. But he did not perform the condition of this obligation, and his bond was forfeited, and he left the state and took up his abode in Iowa. He was not arrested until the 6th day of May, 1902. A trial had on the 27th day of June, 1902, resulted in his conviction and sentence to the penitentiary for a term of five years. The defendant was twenty-seven years old at the time of the trial, married, and had three children. On the 11th day of August, 1897, he made application to the Farmers' Mutual Fire & Lightning Insurance Company of Nodaway County, Missouri, for a contract of insurance on his property. The contract of insurance covered, among other property, his dwelling and household furniture. The dwelling was insured against loss and damage by fire to the amount of two hundred dollars, and the furniture in the sum of one hundred and fifty dollars. He was assessed and paid one assessment on this policy in November, 1897. It appears that on the 14th day of February, 1898, the defendant, in company of his family, left his home, and went to the home of his father-in-law, a distance of about eight miles. His residence was consumed by fire at about the hour of ten o'clock p. m. of that day. The evidence on behalf of the state shows that after the defendant had notified the company of his loss, and had filed his affidavit in proof thereof, an examination was made by the company, and it was discovered that a large portion of the household goods mentioned in the affidavit of loss of the defendant were not, in fact, destroyed. A search warrant was procured, as was also a warrant for the arrest of defendant. The defendant was met in the road by the constable, and advised of the fact that the constable had a search warrant, and also a warrant for his arrest. The defendant told the constable that he could search all he `damn please,' and refused to go to the former site of the residence with the constable. It was further shown by the state that, after the warrant was read to the defendant, he resisted the attempt of the officer to get in the buggy beside him, and attempted to drive away. But he was not successful in this, but was arrested and taken back to the scene of the fire. He was placed in the custody of the young man who was deputized as constable, and the constable and his driver began to execute the search warrant. The search disclosed that in the barn belonging to the defendant, which was situate in close proximity to the residence, there were two feather beds and bedclothes, a trunk, a couple of rocking chairs, a sewing machine, a bureau, and some boxes containing books, albums, pictures, etc., as well as such other furniture and clothing as ordinarily belong to the usual home. The constable testified that the feather beds were placed in a barrel, and that the barrels had strings tied across them, and afterwards a quilt was placed over the top of the barrel and attached by strings; that the goods were carefully and neatly packed. It is also shown that these goods were concealed from view by being covered by a large amount of hay or millet. The investigation of the constable further discloses that there were two trunks in a cave, containing such wearing apparel as is ordinarily used by a family, and that the cave also contained a tub of dishes, knives and forks and spoons, a baby carriage, and a baby's high chair. The defendant had sworn in his proof of loss that this property was destroyed by fire. The defendant at first refused to give the constable the key to unlock the door of the cave, but, on being informed it would be forced open if the key was not produced, he then produced the key. After his preliminary examination had been held, he told the sheriff that he had set fire to his house, and had stored his clothing and furniture in the barn, and that he knew of no way out of his extremity except to give bond and then leave the country. It is also in evidence that he made a...