State v. Meadows

• Decision Date: 01 July 1932
• Docket Number: No. 31714.,31714.
• Citation: 51 S.W.2d 1033
• Parties: THE STATE v. ANDREW B. MEADOWS, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 1033

THE STATE v. ANDREW B. MEADOWS, Appellant.

No. 31714.

Supreme Court of Missouri, Division 2.

July 1, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.

AFFIRMED.

Herbert H. Blair for appellant.

(1) The court's refusal to grant defendant's instruction in the nature of a demurrer to the evidence at the close of all the testimony was error because the State failed to establish, by competent and substantial testimony, the corpus delicti of the offense. (a) Defendant excepted to the court's ruling and assigned error in his motion for new trial. The point is properly saved. State v. Craig, 43 S.W. (2d) 414. (b) Demurrer to the evidence at the close of the entire case challenges sufficiency of evidence to sustain verdict and raises the point as to the sufficiency of the corpus delicti. State v. Parr, 246 S.W. 906; State v. Craig, 43 S.W. (2d) 414. (c) Corpus delicti of homicide committed in perpetration of arson requires proof of (1) death of the person by fire and (2) that the fire was the result of criminal act of someone and not accidentally set. (2) Corpus delicti of homicide consists of two fundamental facts: First, the death of the person alleged to have been killed; and, second, the fact that a criminal agency was the cause of such death. State v. Campbell, 257 S.W. 131; State v. Henke, 285 S.W. 397; State v. Joy, 285 S.W. 494; State v. Kauffman, 46 S.W. (2d) 848; Redd v. State, 63 Ark. 475, 40 S.W. 374. "Proof of corpus delicti in criminal cases" — Case note 68 L.R.A. 35. Corpus delicti of arson not merely the burning of the building but that it was burned by the wilful act of some person criminally responsible for his act and not by natural or accidental causes. State v. Jones, 106 Mo. 312; State v. Cox, 264 Mo. 412; State v. Berkowitz, 29 S.W. (2d) 152; "Corpus delicti in arson" — Case note 16 L.R.A. (N.S.) 285. (3) The essential fact that May Frazer met her death as the result of a fire which was criminally set was not established by evidence properly before this court. (a) Defendant's extrajudicial confession and testimony relating thereto cannot be considered in establishing corpus delicti where there is an absence of independent proof, either direct or circumstantial, that the fire was criminally set. Murray v. State, 43 Ga. 256; State v. Carroll, 51 N.W. 1159; Williams v. State, 54 S.E. 661; State v. Cox, 264 Mo. 413; State v. Young, 237 Mo. 177; State v. Capotelli, 292 S.W. 43; State v. Bennett, 6 S.W. (2d) 881; State v. Willoby, 34 S.W. (2d) 7. (b) Defendant's testimony may have established his criminal agency in the conspiracy but does not establish the additional fact, essential to the corpus delicti, that as the result of the conspiracy the hotel was criminally fired. State v. Bennett, 6 S.W. (2d) 883. (c) Defendant's testimony creates a suspicion only that the hotel burned as the result of the conspiracy, and, unaided by independent proof tending to show criminal agency in setting the fire, is insufficient to establish the corpus delicti. State v. Cox, 264 Mo. 408; State v. Berkowitz, 29 S.W. (2d) 152. (d) A sentence of death ought not to be sustained on mere suspicion alone, regardless of how strong. State v. Jones, 106 Mo. 313; State v. Young, 237 Mo. 177.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

(1) The hotel was a dwelling within the meaning of the law under Section 4037, R.S. 1929, and the indictment contains all of the essential elements to charge murder in the first degree in the commission of arson. Sec. 3982, R.S. 1929; Kelley's Criminal Law (4 Ed.) 448; State v. Foster, 136 Mo. 654; State v. Schmidt, 136 Mo. 651; State v. Hopkirk, 84 Mo. 287; State v. Bobbitt, 215 Mo. 33. (2) The appellant complains that the court erred in overruling his written challenge to the array at the close of the voir dire examination for the reason that said panel was illegally and improperly selected in that the State, throughout its examination, called upon said panel to avenge the death of May Frazer. The appellant has not preserved the evidence relating to the voir dire examination of the jury. It is elementary that allegations in the motion for new trial do not prove themselves. Therefore, this point is not before this court for review. (3) The evidence shows that the defendant knowingly participated in the commission of the crime of arson by setting fire to the hotel knowing that human beings were in said hotel, the fire thereby causing the death of May Frazer. This made a submissible case for the jury under the charge in this case, and the court was not warranted in sustaining the said demurrers so offered by the defendant. State v. Daly, 210 Mo. 678; State v. Bobbitt, 215 Mo. 33; State v. Donnelly, 130 Mo. 648; State v. Mabry, 324 Mo. 248; State v. Moore, 33 S.W. (2d) 906. (4) As we understand the rule an objection such as made when this confession was offered does not preserve anything for review without the matter offered is wholly incompetent. Therefore, the objection was not sufficient. State ex rel. v. Diemer, 255 Mo. 345; Mann v. Stewart Sand Co., 243 S.W. 407; State v. Eason, 18 S.W. (2d) 76; State v. McGuire, 39 S.W. (2d) 526; State v. Hershon, 45 S.W. (2d) 65.

COOLEY, C.

By indictment duly returned in the Circuit Court of the City of St. Louis, the defendant Andrew B. Meadows, Lewis E. Balson, Ralph Pierson and Robert H. Cotham were jointly charged with murder in the first degree alleged to have been committed on December 5, 1927, in the felonious burning of the Buckingham Hotel Annex wherein one May Frazer was alleged to have been burned to death — a murder committed in the perpetration of arson. At the request of some of the indictees a severance was granted and the State elected to try Meadows first. He was tried alone and on October 17, 1930, the jury returned a verdict finding him guilty of murder in the first degree as charged and assessing his punishment at death. From sentence and judgment upon the verdict he has appealed.

The facts are substantially undisputed except as to who actually set the fire. Defendant contended that while he had entered into an agreement with Cotham to aid in burning the building and assisted therein and received money for such assistance, as will hereinafter more fully appear, he did not himself set the fire. The Buckingham Hotel Annex was a hotel building four stories in height, used in connection with the Buckingham Hotel building proper. The evidence indicates that it was of such material and construction that it naturally would, and did, burn rapidly and that at all times it contained a considerable number of guests, most of whom were regular lodgers, facts well known to defendant. It was owned by Pierson and Balson who were in financial straits. A receiver had been appointed to take charge of their hotel properties, including the Annex, the properties had been advertised for sale and the sale was to occur about December 17, 1927. Cotham was a clerk in the Buckingham Hotel proper, situated across the street from the Annex. Meadows was night watchman at the Annex, a position he had held for several years prior to the fire. Among other duties he was required to make hourly inspection rounds of the Annex during the night. One evening about a month before the fire, which occurred about three o'clock in the morning of December 5, 1927, Cotham asked Meadows to meet him in the park the next morning, which Meadows did. Cotham then informed Meadows that the owners of the Annex were in bad financial condition and wanted to get someone to burn the Annex so that they could collect the insurance and that they would pay $10,000 to have it burned, half of which Cotham would give Meadows if the latter would burn the building. Meadows testified that he at first agreed to this proposition but on further thought told Cotham he would not set the fire because he feared some of the guests might be killed or injured but that he did agree to assist by omitting regularly thereafter to make his three o'clock inspection round so that someone else to be procured by Cotham could have opportunity to set the fire, Meadows to receive $5,000 for his participation, and that such was the arrangement finally agreed upon and carried out. When that agreement was reached Cotham advanced to Meadows $100. They discussed where the fire should be set so that it could get under good headway before being discovered and agreed that a good place would be a room, No. 137, on the second floor, which was used, except on rare occasions, only by the maids in changing their dresses. Cotham and Meadows had several conferences over a period of three or four days discussing the question of getting out the guests after the fire should be discovered and perfecting their plans. Pursuant to agreement Meadows thereafter refrained from making his three o'clock inspection round.

About 2:30 in the morning of December 5, after making his two o'clock round, Meadows went to the Buckingham Hotel where he saw Cotham. The latter said to him: "Well, everything is over tonight, and in fact I think it will be right along now," gave him some cigars and told him to keep quiet. Shortly before that, the same night, Meadows had looked into Room 137 to make sure there was no one there. After the above conversation with Cotham Meadows returned to the Annex and waited there until a guest occupying a room directly over Room 137 discovered fire coming from that room. An alarm was turned in and in due time members of the fire department arrived. The building burned rapidly and the greater part of the wing in which the fire originated was destroyed. May Frazer and several other guests lost their lives in the fire and several more were injured. The evidence leaves no doubt that May Frazer's death occurred in and was directly caused by the fire. After the fire had been discovered and the alarm given, defendant,...