State v. McCaffery

• Decision Date: 12 February 1910
• Citation: 125 S.W. 468,225 Mo. 617
• Parties: STATE v. McCAFFERY.
• Court: Missouri Supreme Court

125 S.W. 468

225 Mo. 617

STATE v. McCAFFERY.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

CRIMINAL LAW (§ 814) — TRIAL — INSTRUCTIONS — ISSUE NOT RAISED BY EVIDENCE — DEGREE OF OFFENSE.

Under Rev. St. 1899, § 2361 (Ann. St. 1906, p. 1454), providing that no person shall be convicted of an attempt to commit an offense when the offense attempted was perpetrated by him at the time in pursuance of such attempt, in a prosecution for arson, where defendant, if guilty of any offense, was guilty of arson in the first degree, it was error to charge on an attempt to commit arson.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

James G. McCaffery was convicted of an attempt to commit arson in the first degree, and appeals. Reversed and remanded.

I. Joel Wilson, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant and one Alvin J. Ross, by an information filed by the assistant circuit attorney of the city of St. Louis, were jointly charged with the crime of arson in the first degree. When the cause came on for hearing a severance was granted, and, after arraignment and plea of not guilty, defendant was tried and found guilty of attempt to commit arson in the first degree, and his punishment assessed at two years in the penitentiary. After unavailing motions for new trial and in arrest of judgment, the defendant was sentenced pursuant to the verdict, whereupon he appealed.

The testimony on the part of the state tended to prove that defendant was the proprietor of a dramshop occupying the first floor of a two-story building located at No. 2701 Park avenue, in the city of St. Louis. The second story of this building was occupied by a Mrs. Dill and her family as a dwelling house, and she, her son, and a boarder were sleeping there on the night in question. It had been the custom of the defendant, according to the testimony, to close his saloon at about 1 a. m.; but on the night of May 8, or rather the morning of May 9, 1908, the saloon was found closed and locked at about 12:30 a. m. At 1:20 a. m. a night watchman discovered smoke coming from the basement of said saloon and he immediately ran towards the building. As he crossed the street he saw the defendant and one Ross coming out of the saloon through the front door, and while the defendant was locking the door the watchman told him that his place was on fire, and at the same time called his attention to the smoke then pouring through a trapdoor which led to the basement of the building. Defendant and Ross walked to the trapdoor, and one of them remarked that there was a fire, and that they would go to the alarm box and turn in the alarm; the said alarm box being about a block distant. After waking up Mrs. Dill and her family, and notifying them of the fire, and discovering that neither the defendant nor Ross had returned, the watchman went to the alarm box referred to and turned in the alarm. The fire department responded promptly, and when the assistant chief and a fireman, who drove to the fire in a buggy, reached a point about a block and a half from the fire, they saw two men running in a direction away from the saloon. Thinking that the alarm which had been turned in was a false one, and that the fleeing men were guilty of the offense, the assistant chief and fireman got down from the buggy and pursued them. At the corner of Jefferson and Park avenues the men pursued parted; one going west on Park avenue, and the other running north on Jefferson. Both were soon caught; one of the men being the defendant and the other Ross. They were taken to the scene of the fire, and were then committed to the care of a police officer. Neither man, when apprehended, nor while being taken to the saloon, said anything about the ownership of the property on fire. After the fire was...