State v. Koch

• Decision Date: 02 March 1929
• Docket Number: No. 29181.,29181.
• Citation: 16 S.W.2d 205
• Parties: THE STATE v. ANTONE W. KOCH, Appellant.
• Court: Missouri Supreme Court

16 S.W.2d 205

THE STATE v. ANTONE W. KOCH, Appellant.

No. 29181.

Supreme Court of Missouri, Division Two.

March 2, 1929.

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

AFFIRMED.

Earl E. Roberts, James Booth, Virginia Booth and William P. Elmer for appellant.

(1) The court erred in admitting evidence of other crimes alleged to have been committed by defendant, or solicited by him: (a) The testimony of Henry Mitchell that he got whiskey in defendant's garage prior to this charge and not related to it; (b) in permitting the State to cross-examine defendant as to seeing whiskey in a car of a patron of his garage in December, 1921, and failing to arrest such patron for law violation; (c) the solicitation by defendant of Arthur Pratt to commit other arsons not connected with the charge in this case and (d) the threat to commit murder by throwing gasoline on any person who testified against him and touching a match to it. None of the crimes were connected with this case, and evidence of them was highly prejudicial to defendant. State v. Johnson. 300 S.W. 709; State v. Tunnell, 296 S.W. 427; State v. Guye, 252 S.W. 959; State v. Hyde, 234 Mo. 200; State v. Davis, 315 Mo. 1285; 16 C.J. 586; 3 A.L.R. 785. (2) In arson cases evidence of other offenses committed by defendant are inadmissible. 16 C.J. 593. (3) The same rule applies to the testimony of an accomplice. 16 C.J. 701. (4) The rule extends to proof of the accusation of another crime. 16 C.J. 586. (5) The alleged threats about the gasoline were inadmissible because they did not relate to the crime of arson charged, but to the independent crimes testified to by Pratt, and were not made to any witness who knew any fact against defendant, or communicated to any one who would be effected by such threats. 16 C.J. 555. (6) The court erred in admitting testimony as to contents of letter written by Mitchell to defendant and in permitting a verbal demand to be made by the State in presence of the jury. The rule as to giving notice to the opposite party to produce evidence applies to criminal cases. 16 C.J. 616; State v. Tucker, 234 Mo. 554; State v. Tucker, 137 S.W. 870. (7) The court erred in permitting the State to cross-examine the defendant on the impeachment matters as same were not referred to on direct examination. Sec. 4036, R.S. 1919. (8) The court erred in interrupting Mr. W.P. Elmer, attorney for defendant, in his argument. The court had not defined what reasonable doubt meant. The attorney was clearly within his rights in arguing this fact to the jury and the interruption by the court was prejudicial. It limited the argument to a mere reading of the instructions. Defendant's attorney had a right to argue even stronger than he did. State v. Connor, 274 S.W. 29. (9) The court erred in permitting counsel for the State, against the timely objection and exception of the defendant, to examine the jury on their voir dire as to their membership in the organization known as the Ku Klux Klan. The State on a previous trial had improperly injected this issue into a similar case in such a manner as to deprive defendant of a fair trial. This was an arson case, where membership in the Klan on the part of the defendant, would be received by the jury as prima-facie evidence of guilt. The record shows that none of the panel were Kluxers and the questions asked were a direct intimation to the jury that this odorous organization was in some dark and mysterious way connected with and responsible for the crime charged. There was no showing of good faith on the part of the State and when defendant made objection that there was no question or issue about the Klan in this case the court overruled that objection. The ruling was tantamount to a statement by the court that the Klan was an issue, was connected with the case and the jury must have so understood. The means thus employed to secure a conviction were improper, illegal, highly prejudicial and deprived defendant of that fair and impartial trial guaranteed to him by the Constitution. Notwithstanding our many reforms, the Constitution still stands as the supreme law of the land and under it this defendant is still entitled to a fair trial. Such questionable means ought not to be employed to secure a conviction. Chambers v. Kennedy, 274 S.W. 726. (10) The court erred in refusing defendant's Instruction D on motive. It should have been given in this case. State v. Harris, 134 S.W. 535; State v. Foley, 144 Mo. 600; State v. Aitken, 144 S.W. 503; State v. Santino, 186 S.W. 977. (11) The court erred in refusing defendant's instruction on credibility of witnesses. One of the most important items in determining the credibility of a witness, viz., his general reputation for truth and morality, and contradictory statements, were included in this instruction. Many of the guides in the instruction given were of small consequence compared to these two items. 16 C.J. 957; 16 C.J. 1012, sections 2438-2439-2440-2441. (12) The court erred in refusing defendant's instruction cautioning the jury as to statements made by defendant. State v. Mulconry, 270 S.W. 378.

Stratton Shartel, Attorney-General, and Hibbard C. Whitehill, Special Assistant Attorney-General, for respondent.

(1) Jurors' membership in any order not unlawful in its objects or purposes is not ground for challenge, nor is it a ground for quashing the panel because several of the members thereof belong to such order. State v. Griffith, 279 S.W. 135; State v. Craft, 299 Mo. 343; Sec. 6632, R.S. 1919. (2) An accessory before the fact may be charged in the same manner as a principal and evidence may be offered of acts committed in furtherance of a conspiracy to commit such act, even though such accomplice is shown not to have been present at the time all the acts were committed. Sec. 3687, R.S. 1919; State v. Gow, 235 Mo. 307; State v. Kramer, 226 S.W. 643; State v. Roderman, 297 Mo. 144; State v. Carroll, 232 S.W. 701; State v. Bobbitt, 228 Mo. 266; State v. Shout, 263 Mo. 374; State v. Fields, 234 Mo. 623. (3) One charged with crime may be convicted upon the uncorroborated testimony of an accomplice, as the latter is a competent witness, even though he may be a co-defendant and may have pleaded guilty to the same offense. State v. Glon, 253 S.W. 364; State v. Shelton, 223 Mo. 135; State v. Casto, 231 Mo. 408; State v. Roderman, 297 Mo. 152; State v. Reppley, 278 Mo. 338; State v. Bersch, 276 Mo. 397; State v. Broyles, 295 S.W. 554; State v. Braden, 295 S.W. 784; State v. Buckley, 298 S.W. 777; State v. Davis, 7 S.W. (2d) 264; State v. Stephens, 82 S.W. (2d) 3. (4) Motive is not an essential element of crime to be shown by the State, but intent must be proven, and may be established by the facts in evidence. State v. Santino, 186 S.W. 976; State v. Bersch, 276 Mo. 415; State v. Bowers, 239 Mo. 436; State v. Ruckman, 253 Mo. 499; State v. Pinkard, 300 S.W. 751. (5) The instructions given by the court properly declared the law of the case, as they fully and properly inform the jury of the issues before them for their consideration, nor did the court err in refusing certain instructions requested by the defendant. State v. Bersch, 267 Mo. 420; State v. Shelton, 223 Mo. 138; State v. Myer, 259 Mo. 316; State v. Sheline, 225 S.W. 674; State v. Santino, 186 S.W. 976; State v. Ross, 306 Mo. 506; State v. Ruckman, 253 Mo. 487; State v. Henson, 290 Mo. 248.

HENWOOD, C.

By an indictment returned and filed in the Circuit Court of Crawford County on February 20, 1926, defendant was charged, in the first count, with arson, and, in the second count, with aiding and abetting one Mitchell in committing arson. These charges related directly to the setting fire to and burning the store building of J.J. and Mary E. Bremer, located in the town of Bourbon, in Crawford County. The venue was changed to the Circuit Court of Dent County, and, upon trial in that court, defendant was found guilty as charged in the second count, and his punishment assessed at imprisonment in the penitentiary for three years. He was sentenced accordingly, and appealed.

Evidence offered by the State tends to show that, at the time in question, J.J. and Mary E. Bremer were the owners of a one-story brick building, with a one-story and a two-story frame addition thereto, which was located on the south side of Main Street and in the business section of the town of Bourbon, in Crawford County, and in which they conducted a hardware store. On the north or opposite side of Main Street, and on the third lot west, defendant owned a one-story brick building, in which he conducted a garage and also had his sleeping quarters. On the same side of the street and forty feet west of defendant's garage, George Merkel's two-story frame dwelling house was located. Thirty feet west of the dwelling house, stood the flour mill building of John and George Merkel, which consisted of a three-story frame building, covered with sheet-iron on the roof and sides, and a basement. And twenty-eight feet west of the mill, the Merkels had a steel storage tank, containing 9,000 gallons of kerosene. About four o'clock on Saturday morning, October 19, 1924, fire was discovered in the rear part of the Bremer store building, where oil appeared to have been poured on some rubbish, though there was no fire in any other part of the building. At the same time fire was discovered under the corn-chute in the basement of the Merkel flour mill, in the southwest corner, though there was no fire in any other part of that building. A general fire alarm was given, the inhabitants were aroused and attempted to put out these two fires, but, for want of adequate fire-fighting apparatus, the Bremer store building and contents, the Merkel flour mill and contents, and other buildings, were totally destroyed before the spreading flames could be extinguished. The total loss to the Bremers was $18,000, and the total insurance of $5,000 was collected. The Merkels...