State v. Hayes

• Decision Date: 30 April 1883
• Citation: 78 Mo. 307
• Parties: THE STATE v. HAYES, Appellant.
• Court: Missouri Supreme Court

78 Mo. 307

THE STATE

v.HAYES, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

Patterson & Barker and Heffernan for appellant.

D. H. McIntyre, Attorney General, for the State.

PHILIPS, C.

The appellant, the defendant below, was indicted and convicted in the Greene circuit court for an attempt to commit arson. The indictment in effect charged that, at Greene county, January 5th 1877, the defendant attempted to fire and burn a dwelling house owned by himself, then occupied by human beings, certain persons named. The indictment with much particularity detailed how, toward the commission of the act, the defendant put and spread coal-oil on the floor of said house, preparatory to his meditated offense, “the said coal-oil being then and there an inflammable oil,” with the intent to set fire to said coal-oil, and thereby to set fire to and burn the house; and did then and there solicit, incite, etc., one John McMahan to fire and burn said house; and thereto delivered to said McMahan a can of coal-oil, the same being inflammable, etc., “and a bunch of friction matches, with the purpose and intention,” on defendant's part, of having said McMahan throw and pour said coal-oil on said house, and set fire thereto and thereby burn the house--and solicited and incited and commanded said McMahan by means thereof to so fire and burn the same “with the intent then and there, on the part of him, the said Michael Hayes, by means of each and every of the acts aforesaid, so as aforesaid done by him, to then and there unlawfully, maliciously and feloniously commit and perpetrate the arson and crime aforesaid, and that he, the said Michael Hayes, failed in the perpetration of said crime.”

There was evidence tending to show preparation by the use of coal-oil as charged. It seems that the man McMahan had advised the police of the city of Springfield, where the house was located, of Hayes' designs and solicitations to him to commit the act; and on the evening when it was proposed to execute it, he and defendant were to meet in a certain out-house where the policemen concealed themselves. McMahan and defendant did so meet, and the concealed policemen overheard the conversation between the plotters evidencing the scheme as alleged. The coal-oil can was there, and on McMahan's suggesting that he had no matches, defendant said he would go and get some. He left, but failed to return, but did go to a designated house where he said he would be when the house should be fired, and where the officers that night arrested him.

The court gave the following instructions on behalf of the State:

1. If you find from the evidence that the defendant, Michael Hayes, did, at Greene county, State of Missouri, at any time within three years next before the finding of the indictment in this case, willfully, maliciously and feloniously attempt to set fire to and burn a dwelling house situate in Greene county, (then occupied by the families of F. W. Steffen and V. C. Smith,) and in which said dwelling house there was any human being at the time of such attempt, and that defendant did any act or acts toward the commission of said offense, but failed in the perpetration of said offense, then you will find defendant guilty in manner and form as charged in the indictment, and will assess his punishment at imprisonment in the State penitentiary for any period not less than two years, and for as long a time as you may deem it proper to impose.

2. You are instructed that acts on the part of defendant, to constitute an attempt in this case, must be shown by the evidence to be acts suited and adapted to carry into execution the design and attempt charged in the indictment. But if you find from the evidence that defendant hired, incited or commanded one John McMahan to burn said dwelling house, and furnished said McMahan with coal-oil for the purpose of burning said house, and gave said McMahan directions how to do such burning, and that defendant at that time intended that said McMahan should set fire to and burn the dwelling house, then and in that case defendant is guilty of an attempt to burn the dwelling house; and if you further find from the evidence that at the time of such attempt any human being was in said dwelling house, you will find defendant guilty as charged in the indictment.

3. If you believe from the evidence that defendant offered McMahan money, and solicited, incited or commanded him to burn the dwelling house, with the intent on the part of said defendant at that time that McMahan should proceed to set fire to and burn the house, and did any act in furtherance of the design, then it can make no difference in arriving at your verdict whether McMahan actually intended to burn the house or not.

5. If the jury believe that defendant, after he was charged with the crime alleged in the indictment, fled from justice, or while under recognizance forfeited the same on account of said charge, such conduct on the part of defendant is evidence to be considered by the jury in determining his guilt or innocence.

7. In determining the guilt or innocence of defendant, you should take into consideration all the facts and circumstances in evidence, the acts, conduct and declarations of defendant, and the motive, if any, he may have had to do, or not to do, the offense charged, as shown by the evidence, and if you find from all the facts and circumstances in evidence that there is no other reasonable conclusion from them than that of the guilt of defendant, you will find him guilty as charged in the indictment.

The court refused the following instructions asked by the defendant:

8. In order to commit an attempt to burn a building through the agency of another, defendant must not only have solicited the man McMahan to do so, but he must have furnished McMahan with something calculated to accomplish the burning, and although the jury may believe defendant furnished McMahan with a can of oil, unless it appears from the evidence that the oil was inflammable and calculated to assist in firing the building, the jury must acquit; and the jury are not permitted to presume the oil was inflammable and calculated to facilitate the firing of the building.

10. There is a distinction between civil and criminal cases in respect to the degree or quality of the evidence necessary to justify the jury in finding their verdict for the State. In civil cases it is the duty of the jury to weigh the evidence carefully and find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt; but in criminal trials the party indicted is entitled to the legal presumption in favor of his innocence, and his guilt must be proven, not by a mere preponderance or weight of evidence, as in civil cases, but his guilt must be shown beyond a reasonable doubt.

11. Defendant cannot be found guilty unless you shall be satisfied from the evidence beyond a reasonable doubt that he, himself, attempted to set fire to the house in the indictment mentioned, or that he employed or induced McMahan to set fire to the house, and that McMahan agreed to and intended to set the house on fire, and that he would have done so, had he not been prevented or intercepted in the execution of such intention and design, and that he did some act toward the same beyond a mere preparation. The evidence must be such as to exclude every reasonable theory but of defendant's guilt, and the facts proven must be consistent with and point to defendant's guilt, and must be inconsistent with his innocence.

12. There is no evidence to show that the defendant himself attempted to set fire to the house in the indictment mentioned.

13. Even though you shall find that defendant set his coal-oil can, which did leak, near the door of the store or dwelling house in the indictment mentioned, and that he got a can of oil and took the same to a stable on an alley, and then gave it to one McMahan with directions for said McMahan to throw the same against the said house and to set it on fire, and the said McMahan did agree to do so; such acts, if you find them to be true, do not constitute an attempt on the part of the defendant himself to set fire to the building in the indictment mentioned.

14. Even though you should find from the evidence that defendant did employ or induce one John McMahan to set fire to the house in the indictment mentioned, that fact or facts, (should you find such to be true,) is not sufficient of itself to find defendant guilty, but you will have to further find that said McMahan did agree and intend to set fire to the house in the indictment mentioned, and would have done so, had he not been prevented or intercepted in the execution of such intention and design.

15. Before you can find the defendant guilty, you must find from the evidence either of the following facts to be true beyond a reasonable doubt: First, that defendant did himself attempt to set fire to the house in the indictment mentioned, and in such attempt, (if you find he made such,) did some act toward the commission of such offense beyond a mere preparation, and was prevented or intercepted in the execution of the same; or, secondly, that defendant employed or induced McMahan to set fire to the house, and that McMahan did agree to set the house on fire, and that he, said McMahan, intended to fire the house and did some act beyond a mere preparation, and that he would have done so if he had not been prevented or intercepted. Unless you so find, you will find defendant not guilty.

16. The court instructs the jury that under the evidence the State has failed to make a case, and you will return a verdict of not guilty.

1. ARSON: indictment.

I. The first question for our determination is the sufficiency of the indictment. The defendant claims that it contained two alleged attempts, one in which he alone participated, the other in which he attempted to...