State v. Jones

• Decision Date: 12 October 1891
• Citation: 17 S.W. 366,106 Mo. 302
• Parties: The State v. Jones, Appellant
• Court: Missouri Supreme Court

17 S.W. 366

106 Mo. 302

The State v. Jones, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Newton Circuit Court. -- Hon. Joseph Craven, Judge.

The grand jurors of Newton county, state of Missouri, at the May term of the Newton county circuit court, on the twenty-fourth day of May, 1889, found and returned into court an indictment against the defendant, as follows: "The grand jurors for the state of Missouri, impaneled, sworn and charged to inquire within and for the body of the county of Newton and state of Missouri aforesaid, upon their oaths present and charge that on or about the day of April, 1889, at the county of Newton and state of Missouri, one Reed Jones wilfully maliciously and feloniously, did set fire to and burn a certain barn there situate, the property of J. A. Robertson and of the value of $ 800, against the peace and dignity of the state," etc.

At the November term of the Newton county circuit court, 1889, the defendant was arraigned upon this indictment, and his plea of not guilty was duly entered of record. The defendant was put on his trial December 2, 1889, and the jury returned their verdict on the fifth day of December, 1889, in words and figures as follows:

"We the jury, find the defendant guilty as charged in the indictment, and assess his punishment at five years in the penitentiary.

"[Signed] I. E. Moore,

"Foreman."

The testimony shows that in the month of April, 1889, prosecuting witness, Joseph Robertson, owned a farm and a dwelling-house and barn situated thereon; that the barn was situate about thirty yards from the dwelling-house in which Robertson and family lived and dwelt on the morning of April 30, 1889; that one Miller Crocket had his sleeping apartment in the loft of the barn, and had slept there for more a month, than and up to the very time, and was in the barn asleep when he discovered the barn on fire at three or four o'clock on Tuesday morning, April 30, 1889; that the said barn was used as a lodging place for said Crocket. In fact, the evidence of Robertson and Crocket upon the part of the state proves that Crocket had no other place of sleeping prepared for him on the premises except the loft of the barn that was burned.

The testimony of the state shows that on the night of the burning it had rained, and was misting rain when the fire was discovered; that the barn was in a field or lot which had been freshly ploughed and not a human track could be found going toward the barn, and not a track was found nearer than thirty or forty yards of the barn, and from that point went northwest toward Jones' and other neighbors' houses but the track was lost. The testimony of all the witnesses for the state agree that search was made in a circle of half a mile around that barn, and not a sign of a track could be found approaching the barn or the farm.

On the trial, the court admitted evidence both for the state and defendant tending to show that a bitter animosity existed between Robertson, the prosecutor, and Jones, his father-in-law. The prosecuting witness Robertson was asked by the state if he knew E. Armstrong, and replied he did. He was then asked if in a conversation with Armstrong he made a threat to break up Sam Jones and his family; and he answered no. Armstrong was then called for the defendant, and was asked if Robertson stated in his presence at the survey of Jones' farm, that he intended to break old man Jones and his family up? He answered yes. After cross-examination by the state the witness adhered to his testimony; thereupon the attorney for the state moved to exclude his testimony, and the court sustained his motion and excluded it. To this, defendant objected, and saved his exception. The evidence was almost wholly circumstantial.

Maggie Meyers testified that Wednesday evening before the barn was burnt, Tuesday, that she was staying at Joe Robertson's while he was away from home; that she met defendant, and had a conversation with him; "He said, 'All the folks are away from home, ain't they?' I said, 'All who?' and he said, 'Joe, Samp and Bill,' and asked me if they had gone off to get rich; and I said I didn't know whether they had or not; and he said, he might lose more than he will make, and I said, I hoped not; and he asked me if I was staying with Sallie, his sister, Joe's wife, and I told him I was; and he asked me then if I was not afraid; I said there was nothing to be afraid of, but that I was lonesome; he asked me if Miller Crocket was staying there yet; I said he slept at the barn; he said it might get burnt up; that there had been such things as that done; and told me then that we had better keep Miller with us, for he would be up some night, and if we saw a light or fire or anything of that kind, that we would know what it meant; that was on Wednesday before the barn was burnt on Tuesday."

William Lewis testified that between the eighth and twentieth of April, Mose Peck sent him to his father's for some flour-sacks to haul off wheat. "I was working at Mose Peck's then; he told me to stop at Jones' and get some sacks there; I came by there, and Reed Jones went to get the sacks, and he came out with the sacks; I said something to him about Jim; if he had heard from Jim; Jim was his brother; Reed said, 'No, I ain't heard from him;' he says, 'My brother was too young to go out among strangers, and I will have my revenge out of Robertson, if I have to burn his barn down;' he said something about Joe's hired hand sleeping at the barn, and asked me to find out for him; I said I was not looking after that kind of business, and he would have to do it himself; this conversation took place about two weeks before the fire. The first time I saw Reed after the morning of the fire was in Mose Peck's new ground; it was about two weeks afterward; he came to where I was plowing and said, 'Do you know the talk you and I had at father's gate?' and I said yes; 'Well' he said, 'what will you take to leave,' 'or will you leave?' I said, 'I ain't in no condition to leave; if you want anybody to leave you go yourself,' and ordered him out of the new ground there. A month or two after the barn burnt, I met Reed Jones again, and his brother; they were sitting on the fence, and as I rode up Jim said, 'Hi! Will;' and I said, 'how d'ye do;' and he said, 'Fat and sassy;' and Reed says, 'When I get back from the pen I will be fat and sassy, too;' I said, 'I guess you will;' he says, 'I heard you was going to send me there;' I said, 'You are ahead of me there;' and by that time he jumped off the fence, and turned to my horse and said to me, 'What did you swear before the grand jury?' I said, 'I ain't allowed to tell;' and he said, 'God damn you, you will have to tell or you will have to die;' I said, 'I can die here;' Jim said, 'Shoot him;' he grabbed for a rock and threw and hit me, and knocked me off of my horse; I said, 'If that is your game, I will settle you;' and jumped and reached and started to hit him with a rock, when he got it and went and hit me again; and he hit me, and threw me down; and Jim said, 'Give it to him, God damn him;' Jim says, 'I will fix him;' and was in the act of getting his gun, which was in the corner of the fence; I jumped on my horse, and says, 'I guess I will be going;' they followed me, I don't know how far, but as far as I could see; I had them arrested for assaulting me."

The testimony introduced on the part of the defense was that of the father, mother and sister of the defendant, who testified that the defendant went to bed up stairs that night, at the usual time, and was there the next morning.

Reversed and remanded.

A. J Harbison and O. L. Cravens for appellant.

(1) The offense defined in the statute as arson in the third degree with which defendant was charged is not proven by the evidence. The setting fire to or burning of a dwelling-house where a human being is at the time, is made by the statute arson in the first degree. R. S., sec. 3511. The court should have instructed the jury to acquit defendant. This was an edifice usually occupied by Crocket, lodging therein. Ex parte Vincent, 26 Ala. 145; Killman v. State, 2 Tex.App. 222; Bishop on Statutory Crimes, pp. 266, 267, and authorities cited; Webster's Unabridged Dictionary; R. S., sec. 3512; 1 Parker's Crim. Rep. 252. (2) There are two crimes conjunctively stated in the indictment, each recognized as separate and distinct offenses by the statute, viz., the setting fire to and burning of the "barn." It is just as necessary for the pleader to state that the burning was done wilfully, maliciously and feloniously, as it was the setting of the fire, if he undertakes to charge both, and the case should be reversed for this error. State v. Johnson, 93 Mo. 73. (3) The punishment designated in the statute for this offense is imprisonment in the penitentiary, and the verdict of the jury should so indicate. As the verdict is silent on that point it should not have been received by the court. R. S. 1889, sec. 3519. The verdict returned by the jury in this case is not in conformity to the provisions of the Revised Statutes, 1879, section 1927, for the reason that the verdict does not specify in what degree of the crime of arson was defendant convicted, and the judgment for that reason should have been arrested, and a new trial ordered. State v. Jackson, 99 Mo. 60; State v. Montgomery, 98 Mo. 339. (4) The testimony of Armstrong should have been admitted, as it shows the animus of the prosecuting witness. Also, the testimony of Lewis, included in brackets in the bill of exceptions, should have be excluded. (5) The indictment charges the offense of arson in the third degree, and the testimony shows arson in the first degree, and hence a fatal variance. ...