State v. Harvey

• Decision Date: 03 December 1895
• Parties: STATE v. HARVEY.
• Court: Missouri Supreme Court

32 S.W. 1110

131 Mo. 339

STATE v. HARVEY.

Supreme Court of Missouri, Division No. 2.

December 3, 1895.

PROOF OF HANDWRITING — COMPETENCY OF WITNESS — ARSON — EVIDENCE — INSTRUCTIONS — ALIBI — BURDEN OF PROOF.

1. A witness in a criminal case, who testifies that he has seen defendant write his name, is acquainted with his handwriting, and has received letters from him, is competent to give his opinion as to whether a letter is in defendant's handwriting.

2. It is not necessary that a witness as to defendant's handwriting should state positively that a certain letter is in defendant's handwriting, to entitle it to go to the jury: but it is sufficient if witness state that he is acquainted with his handwriting, and that, in his opinion, the letter was written by him.

3. Where, in a criminal case, it is shown that a certain letter is in defendant's handwriting, and that it was received through the mail by the person to whom it was written, it is not error to admit the envelope, though the address is not shown to be in defendant's handwriting.

4. Where, in a case of arson, the defense is alibi, and defendant, as a witness, simply states that he was not present at the time and place of the fire, it is proper cross-examination to ask him where he was at the time the property was burned.

5. In a criminal case it is error to give an instruction which casts on defendant the burden of establishing an alibi.

6. In a criminal case, where the defense was an alibi, it was error to refuse to charge that the state must show the presence of defendant at the time and place of the alleged commission of the crime, and if the jury believe defendant's evidence sufficient to raise a reasonable doubt, or if the state's evidence is so defective as to raise a reasonable doubt, or if, taking the whole evidence on the question of alibi, there is a reasonable doubt of defendant's guilt, they should acquit.

7. Stacks of hay are "chattels," within Rev. St. 1889, § 3518, providing that every person

who shall willfully set fire to or burn any goods or other chattels of another, not the subject of arson in the third degree, or any stack of grain, etc., not the subject of arson in the first degree, shall be guilty of arson in the fourth degree.

Appeal from circuit court, Crawford county; C. C. Bland, Judge.

John Harvey was convicted of arson, and appeals. Reversed.

W. P. Elmer and J. T. Woodruff, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

BURGESS, J.

At the April term, 1894, of the circuit court of Dent county, defendant was indicted for arson in the fourth degree, for setting fire to, and burning, three ricks or stacks of hay, the property of John W. Robinett, of said county. On defendant's application, a change of venue was awarded to Crawford county, where he was tried, and, on conviction, his punishment fixed at two years' imprisonment in the penitentiary. He appealed.

The evidence tending to show defendant's connection with the burning of the hay was circumstantial. It was shown that he claimed the care and custody of some children by the name of Curtis, one of whom, a girl, by the name of Mary, had for some time been living at the home of Robinett. A short time before the burning, defendant wrote Robinett a letter, demanding the custody of the girl, and notifying him that, if he did not comply with his request, she would cause his ruin. The letter concludes as follows: "Is your property insured against fire? What could a coward do with a box of matches? Yours, truly. Answer soon, and save yourself trouble." The evidence further showed that on the night of February 1, 1894, three stacks of hay belonging to Robinett, and situated on his farm, were burned; that, during the evening of that day, the defendant was seen at a number of places leading to the Robinett farm; that he inquired of several persons, who testified as witnesses, the distance to the farm of Robinett, and of one witness the exact location of the house, its color, and which he would reach first in passing along the road, the house or the barn. The last inquiry was made about dark, and just before the stacks were discovered on fire. Tracks were discovered coming to and from the hay, and were measured. After the arrest of the defendant, the sheriff took his shoes, made an impression in the dirt, which imprint was measured with the same rule and by the same person who had measured the tracks coming to and from the hay, and they were found to be exactly the same. It is also shown by the proprietor of the newspaper at Salem that, on the night of February 1st, the defendant came to his office at about 11 or 12 o'clock, and said to him that he had been over to Dutchtown to see some of his relatives, but found that they had retired, and so did not disturb them, but that, seeing his light, he had called to visit him. The letter referred to was identified as being in the handwriting of the defendant, and was introduced in evidence. The testimony upon the part of the defendant tended to show an alibi. His father, mother, and brother testified that he was at home at the time of the burning of the hay. His father testified that, in his opinion, the letter was not written by the defendant. The defendant denied burning the hay, denied writing the particular letter introduced in evidence, and, when asked if he had written Mr. Robinett any letters, said he had not written any threatening letters.

The first assignment of error is the action of the court in admitting in evidence, over the objection of defendant, the letter before mentioned. It was shown by McNeil, a witness for the state, that he had seen defendant write his name, was acquainted with his handwriting, had received...