State v. Henson

• Citation: 290 Mo. 238,234 S.W. 832
• Decision Date: 19 November 1921
• Docket Number: No. 22607,22607
• Parties: STATE v. HENSON
• Court: United States State Supreme Court of Missouri

234 S.W. 832

290 Mo. 238

STATE v. HENSON

No. 22607

Supreme Court of Missouri, Division No. 2.

November 19, 1921.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

J. Wesley Henson was convicted of arson in the third degree, and appeals. Affirmed.

K. C. Spence and M. W. Cooper, both of Bloomfield, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was indicted under section 3286, R. S. 1919, in the circuit court of Stoddard county, for arson in the third degree. Upon a trial he was convicted, and his punishment assessed at three years imprisonment in the penitentiary. From that judgment he appeals.

The specific charge leveled against the appellant was the burning of a schoolhouse located in his neighborhood, which was designated as the Cross or Buck Rub schoolhouse. Other than for educational purposes, the building had been used occasionally for church services by a number of persons called the Pentecostal sect. The building was burned just after dark on the _____ day of February, 1919. That evening after the close of school, and the teacher and other pupils had gone home, a 14 year old boy remained to attend to the janitor work. While he was thus engaged the appellant appeared, and upon entering the room asked the boy if there was any fire in the stove; that he was cold. The boy answered him in the affirmative, and appellant sat down near the stove and remained there until the boy had finished his work. When this was done, both went out together. The boy closed the door, but did not lock it, and started towards his home. The appellant went in a different direction towards where he resided. About a half hour later, persons in the neighborhood, among others the boy, saw the fire from their respective places of abode. Upon investigation, it was found to be the schoolhouse. The building was destroyed before any effective effort could be made to extinguish the fire.

Appellant was opposed to the use of the building by the Pentecostal sect. Upon leaving his home the morning of the day the building was burned, appellant remarked to his daughter-in-law, who resided with her husband at appellant's house, that he (appellant) was going to make his words good; that he was going to do what he had said; that the schoolhouse should not stand; that the Pentecostal sect was preaching in it. Appellant, after making these remarks, left the house and did not return until a short time after dark. The witness and her husband saw the fire, which was about 3½ miles distant. They did not at the time know it was the schoolhouse. While they were watching it, appellant appeared, from what direction was not noted. When he came up, he said:

"Do you know that Buck Rub schoolhouse is burning; I have made my words true, and have done what I said I was going to do; and that if you (witness or her husband) tell of my burning the schoolhouse, I will kill you."

There was testimony for the appellant that four years before the date of this offense he was treated for epilepsy, and succeeding the attack was mentally irresponsible, raved, and had to be held in bed; that about a year or more before the offense he had a similar attack; that, except when so afflicted, he attended to his usual business affairs and had done so during the time immediately preceding the burning of the schoolhouse. The defense was an alibi. Appellant denied the commission of the crime, and said that he was up in his field about 100 yards from his own house when he discovered the fire. This was all the testimony.

The court instructed the jury as follows: First, in a general instruction which defined the offense as charged, hypothesized the facts necessary to be found to authorize a conviction, and stated the punishment; second, the usual instruction in regard to a presumption of innocence; third, as to the credibility of witnesses; fourth, the quantum of proof necessary to sustain a conviction on circumstantial evidence; fifth, the manner in which the defense of an alibi is to be considered; and, sixth, what constitutes a reasonable doubt.

Appellant asked no instruction, except one in the nature of a demurrer to the evidence at the close of the testimony for the state, and a like instruction at the close of all the testimony.

I. The charging part of the indictment alleges that

"At the said county of Stoddard, on the ____ day of February, 1919, one J. Wesley Henson did then and there unlawfully, willfully, and feloniously set fire to and burn a certain public schoolhouse there situate, of the property of school district No. 18, in Stoddard county, Mo., and erected for use as a public school building, against the peace and dignity of the state."

It is contended that there was no proof to show that the building was the property of the district designated in the indictment.

It may be asserted as a general rule of criminal pleading, applicable to charges brought under the statute here invoked, that an allegation of ownership is not necessary when it is alleged that the structure burned is a public building. The averment, therefore, that it was the property of a particular school district, except to explicitly define its location in the county named, was surplusage, and proof to sustain it was not necessary. The contention here made arises out of a mistaken conclusion as to the requisites of an indictment based on the statute cited, which does not require an allegation of ownership where the building is a public one, and particularly where it is alleged, as here, that it was being used for a public purpose.

The reasons for the necessity of an allegation of ownership in an indictment for arson at common law and the immateriality of a like allegation under certain statutes, we discussed with some degree of care in State v. Myer, 259 Mo. loc. cit. 313, 168 S. W. 717. Although the statute under which the indictment at bar was drawn was not in question, a like interpretation of its requirements is applicable. In the later case of State v. Bersch, 276 Mo. loc. cit. 412, 207 S. W. 809, the reasons for the immateriality of an allegation of ownership are likewise adverted to.

However, we are not without precedents more concretely applicable to the contention here made.

In State v. Johnson, 93 Mo. 73, 5 S. W. 699, an indictment for burning the State Penitentiary was held to sufficiently charge the crime, although no ownership in the public of the buildings-burned was alleged. It is true that this case was criticised in State v. Whitmore, 147 Mo. 78, 47 S. W. 1068, in that an allegation of ownership should have been alleged in charging arson under the particular section upon which the indictment in the Johnson Case was drawn. In so ruling, it was held, in passing, that, if the indictment had been drawn upon the section here under consideration, an allegation of ownership would not have been required.

In State v. Hunt, 190 Mo. 353, 88 S. W. 719, in which an indictment for burning a church building was drawn under the section here under review, the court held that the building did not belong to that class in respect to which ownership should be alleged in charging the arson of same; that the allegation that it was the property of a particular church was immaterial, and might have been disregarded.

That the rule as thus stated obtains under like statutes in many other jurisdictions is attested by the following cases: Sands v. State, 80 Ala. 201; Lockett v. State, 63 Ala. 5; Mott v. State, 29 Ark. 147; State v. Roe, 12 Vt. 93; People v. Van Blarcum, 2 Johns. (N. V.) 105; Stevens v. Commonwealth, 4 Leigh. (31 Va.) 683; State v. Temple, 12 Me. 214.

II. Appellant is not entitled to a consideration of his assignment of error on account of a refusal of the trial court to grant a continuance. Nothing is preserved in the transcript concerning this assignment except a record entry of the application and the overruling of same. This presents no matter subject to review. If the motion had been preserved under the general rule, the action of the trial court in overruling same would not have been disturbed unless there had been a showing of prejudice to the substantial rights of the appellant. We have uniformly so ruled,...