State v. Koch

• Decision Date: 24 November 1928
• Docket Number: 28609
• Citation: 10 S.W.2d 928,321 Mo. 352
• Parties: The State v. Anton W. Koch, Appellant
• Court: Missouri Supreme Court

10 S.W.2d 928

321 Mo. 352

The State v. Anton W. Koch, Appellant

No. 28609

Supreme Court of Missouri

November 24, 1928

Appeal from Dent Circuit Court; Hon. W. E. Barton, Judge.

Reversed and remanded.

Earl E. Roberts, Homer Rinehart, James Booth and Virginia Booth for appellant.

(1) Where the defendant denies guilt and where, as here, the evidence when all considered shows the untruthfulness of the testimony of the principal witness, this court must reverse the judgment and discharge the defendant, even though such witness did testify directly to the guilt of defendant. State v. Brown, 209 Mo. 413. (2) The testimony of witness Bremer as to defendant's connection with the Ku Klux Klan was a pure conclusion and the court erred in refusing the motion to strike it from the record. State v. Dengel, 248 S.W. 603; State v. Hewitt, 259 S.W. 773; State v. Pate, 274 Mo. 649; State v Koslickie, 241 Mo. 301; State v. Schlichter, 263 Mo. 561; State v. Evans, 267 Mo. 163; State v. Miller, 44 Mo.App. 159; State v. Gates, 130 Mo. 971; State v. Foley, 144 Mo. 600. (3) Evidence of defendant's alignment with the Klan was not admissible and, being admitted, was reversible error. 16 C. J. 546 secs. 1042, 1043; (4) The verdict and judgment is not supported by any substantial evidence, but is against the great weight of all the credible evidence in the case, is wrong and ought to be reversed and the defendant discharged.

North T. Gentry, Attorney-General, and J. D. Purteet Special Assistant Attorney-General, for respondent.

(1) The verdict of the jury is not against the evidence. The evidence is sufficiently substantial to support the verdict. Where such is the case this court will not interfere. It is not the province of this court to weigh the evidence or pass on the credibility of the witnesses; that is the peculiar duty of the jury, and where it has done so and the record contains substantial evidence, this court is unauthorized to interfere with the verdict. State v. Myer, 259 Mo. 319; State v. McCaffery, 225 Mo. 617; State v. Bobbitt, 228 Mo. 252; State v. Santino, 186 S.W. 976; State v. Bersch, 276 Mo. 397; State v. Story, 274 S.W. 54; State v. Crump, 274 S.W. 62; State v. Shelton, 284 S.W. 433; State v. Kinnamon, 285 S.W. 62; State v. Dworkin, 271 S.W. 477; State v. Witham, 281 S.W. 32; State v. Jackson, 267 S.W. 855; State v. Henson, 234 S.W. 832; State v. Sheline, 225 S.W. 673. (2) The testimony of witness Bremer as to defendant's connection with the Ku Klux Klan was competent and admissible for the purpose of showing motive. Evidence of ill-feeling and unfriendly relations between defendant and the witness engendered by the Ku Klux Klan factions was admissible. 16 C. J. sec. 1048; State v. Adkins, 222 S.W. 435. (3) The court properly overruled defendant's objection to the witness's testimony that the defendant was aligned with the Klan faction. The testimony was given as statements of fact and is not subject to the objection of conclusions. State v. Davis, 225 S.W. 709; State v. Evans, 267 Mo. 184; State v. Wertz, 191 Mo. 569; Reardon v. Railroad, 215 Mo. 137; Partello v. Railroad, 217 Mo. 656; State v. Kozlickie, 241 Mo. 301; State v. Buchler, 103 Mo. 207. Assuming that the statement of the witness was a conclusion, defendant was not harmed, inasmuch as guilt was shown by direct and positive evidence. Motive is not an essential element of the crime and need not be shown in a successful conviction. State v. Santino, supra.

OPINION

Davis, C.

The grand jury for Crawford County on February 20, 1926, returned an indictment against defendant in two counts. The first count charged him with arson, and the second count with aiding and abetting one Mitchell to commit arson. The charge related to a flour-mill building at Bourbon, Crawford County, owned by John and George Merkel. The jury returned a verdict finding defendant guilty and assessing his punishment at imprisonment in the penitentiary for a term of three years, defendant appealing from the sentence and judgment entered thereon.

The facts adduced upon the part of the State warrant the finding that at Bourbon, Crawford County, John and George Merkel, brothers, owned a certain building in which they operated a flour mill. About twenty-eight feet east of the flour mill George Merkel resided in a six-room house. About thirty-eight feet east of said house defendant owned a garage building in which he operated an automobile-repair shop, and also slept. Between three-thirty and four-thirty A. M. on October 18, 1924, the flour-mill building of Merkel brothers was observed on fire. Two or three other buildings were also on fire at about the same time, either having been set on fire or having caught from the burning buildings. The people of the town and neighborhood gathered, attempting to quench the fires, but being unable to do so, the buildings burned to the ground and were "a tee-total loss," as a witness put it.

Defendant was not accused of the crime until more than a year had elapsed. He was indicted upon information given by one Henry L. Mitchell to the prosecuting attorney. It seems that a detective discovered evidence pointing to Mitchell's connection with the burning of the mill building. The testimony of Mitchell develops that, previous to setting the buildings on fire, defendant wrote him a letter saying that he wished to see him and would go to St. Louis, where Mitchell was then living, for that purpose. Upon hearing from Mitchell, defendant afterward went to St. Louis on two or three occasions, seeing Mitchell and importuning him to fire the buildings. Defendant promised to pay him fifty dollars. Mitchell, previous to the fire, promised defendant a time or two to set them on fire on a certain day, but failed to keep his promise. On the morning of October 18, 1924, about two-thirty A. M., without previous notice to defendant that he was then coming, Mitchell appeared across the street from defendant's garage, throwing rocks, probably about the size of an egg, at the door to awaken defendant. Defendant, on awaking, crossed the street and conversed with Mitchell. Mitchell stated he did not go to Bourbon for the purpose of setting fire to the buildings, but to see his father. On talking to defendant, however, he was persuaded, defendant giving him a pistol, pliers and a quantity of whiskey, some of which he drank. Thereupon around three-thirty A. M. or a little later, Mitchell set fire to the flour-mill building and the store building of one Bremer. In order that the buildings might burn more quickly, he saturated them with oil that he found where he said defendant had placed it in a cache for that purpose. After the fire, defendant met Mitchell by prearrangement in St. Louis, paying him the fifty dollars promised for setting fire to the buildings. Such other facts as are pertinent, if any, will appear in the opinion.

I. Inasmuch as the trial occurred after the passage of the Act of 1925, relating to motions for a new trial (Sec. 4079, p. 198, Laws 1925), prescribing that the motion shall set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor, the questions to be discussed are limited to the sufficiency of the evidence and the admission of specific evidence. [State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862.] However, errors appearing in the record proper are always open to review, but as none appear in this record, we dismiss it from further consideration.

II. Defendant challenges the sufficiency of the evidence thus: "Where the defendant denies guilt and where, as here, the evidence when all considered shows the untruthfulness of the testimony of the principal witness, this court must reverse the judgment and discharge the defendant, even though such witness did testify directly to the guilt of defendant." In support of his contention, defendant cites State v. Brown, 209 Mo. 413, 107 S.W. 1068.

The only direct evidence connecting defendant with the setting on fire of the flour-mill building was that of the witness Mitchell, who, after arrest, confessed the arson by setting fire to the building and, we assume, implicated defendant. Thereafter Mitchell was indicted and, at the time of his testimony against defendant, was serving a three-year sentence in the penitentiary.

Mitchell, according to his testimony, was hired by defendant for the purpose indicated. Although at common law, defendant, under these circumstances, was denominated an accessory before the fact or in the second degree, under our statute he became responsible as though a principal in the first degree and chargeable as such. [R. S. 1919, sec. 3687.] Mitchell and defendant, if Mitchell is to be believed, were accomplices. Mitchell, having pleaded guilty or been convicted and sentenced, even though an accomplice, became a competent witness. [State v. Roderman, 297 Mo. 143, 248 S.W. 964.] And we have held that one charged with a crime can be convicted on the uncorroborated testimony of an accomplice. [State v. Glon, 253 S.W. 364.]

Defendant bases his contention that we ought to discharge him on the following facts and inferences: That defendant was shown a man of good character...