State v. Myer

• Decision Date: 26 May 1914
• Docket Number: No. 18075.,18075.
• Citation: 168 S.W. 717,259 Mo. 306
• Parties: STATE v. MYER.
• Court: Missouri Supreme Court

168 S.W. 717

259 Mo. 306

STATE v. MYER.

No. 18075.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

Rehearing Denied June 23, 1914.

1. ARSON (§ 22) — ELEMENTS OF OFFENSE — STATUTES—OWNERSHIP OF BUILDING.

Rev. St. 1909, § 4507, provides that every person who shall willfully set fire to or burn any storehouse or other building, not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, so that such dwelling house shall be endangered by such firing, shall be adjudged guilty of arson in the second degree. Held, that the gist of the offense denounced in such section is not the injury to the building fired, but the danger to the persons occupying the adjoining building, and hence ownership of the building burned is immaterial, and need not be alleged.

2. ARSON (§ 22)—ELEMENTS OF OFFENSE.

The common-law rule that arson could only be committed when there was a trespass to the possession, and hence it was material to allege ownership in another than the occupant, has been changed so that if a person burns his own dwelling, or one he occupies, in which there is at the time a human being, he is guilty of arson; the gist of the statutory offense being protection of human life rather than protection of property.

3. ARSON (§ 23)—STATUTORY OFFENSE—CONSTRUCTION OF STATUTE — DIFFERENT OFFENSES.

Rev. St. 1909, § 4507, provides that every person who shall willfully "set fire to or burn" any storehouse or other building, not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, shall be guilty of arson in the second degree. Held, that the section creates two offenses disjunctively denounced, the first being complete if fire is set to any building therein named in attempt to burn the same, and hence an allegation that defendant feloniously, etc., "set fire to and attempted to burn" a certain building was not objectionable as only charging an attempt to commit the offense, the explanatory words "and attempted to burn" being surplusage so far as the sufficiency of the indictment was concerned.

4. ARSON (§ 21) — INDICTMENT — ADJOINING DWELLING HOUSE—OCCUPATION.

An indictment, alleging that defendant did feloniously, etc., set fire to and attempt to burn a certain storehouse, to wit: A storeroom there situate and adjoining to a certain dwelling house of one D. there situate, and that the "said inhabited dwelling house of D., by the firing of the said storeroom was endangered," sufficiently charged that the dwelling house was inhabited.

5. CRIMINAL LAW (§ 729)—TRIAL—ARGUMENT OF COUNSEL—CURING ERROR.

Alleged error, consisting of improper remarks of prosecutor in commenting on the evidence, was cured where the remarks were withdrawn both by prosecutor and the court on objection made.

6. CRIMINAL LAW (§ 402)—EVIDENCE—SECONDARY EVIDENCE.

Where, in a prosecution for burning insured property, it appeared that the policy evidencing insurance on the stock of goods contained in the building was in another state, secondary evidence was admissible to prove the insurance.

7. ARSON (§ 37) — STOREHOUSE — ADJOINING DWELLING.

Evidence held to sustain a conviction of setting fire to a storehouse adjoining an inhabited dwelling, in violation of Rev. St. 1909, § 4507.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Harry Myer was convicted of arson in the second degree, and he appeals. Affirmed.

Wofford & Kimbrell, of Kansas City, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

WALKER, P. J.

In April, 1913, appellant was convicted in the circuit court of Jackson county of arson in the second degree, in having set fire to a storehouse adjoining a certain inhabited dwelling house, and his punishment assessed at three years' imprisonment in the penitentiary. Pending this appeal appellant is under recognizance. Omitting the formal parts and signature of the prosecuting attorney, the information is as follows:

"That Harry Myer, whose Christian name in full is unknown to said assistant prosecuting attorney, late of the county aforesaid, on the 6th day of July, 1912, at the county of Jackson, state of Missouri, did then and there unlawfully, willfully, maliciously, and feloniously set fire to and attempt to burn a certain building, to wit, a storeroom at No. 1003 East Twelfth street, there situate and adjoining to a certain dwelling house of one E. M. Deming, there situate, and that said inhabited dwelling house of one E. M. Deming, by the firing of the said storeroom as aforesaid, was then and there endangered, against the peace and dignity of the state."

The verdict of the jury omitting signature of foreman, is as follows:

"We, the jury, find the defendant guilty of arson in the second degree as charged in the information and assess his punishment at three years in the state penitentiary."

Near midnight, July 6, 1912, a police officer walking his beat on East Twelfth street Kansas City, saw smoke issuing from the transom or ventilator over the door and from crevices in the windows of a storeroom at No. 1003 on said street; upon closer investigation he found the room filled with smoke and called the fire department. The store was broken open by firemen, when a strong odor of kerosene and turpentine was perceptible. The counters, shoe boxes, racks, shelves, and goods were found covered with excelsior, which had been saturated with a mixture of kerosene and turpentine. Two or three spots on the floor indicated that this mixture had been poured thereon. Along the floor a train of excelsior, also moist with the same mixture, led to the basement stairway, and down the steps into same, where a barrel was found one-third full of oil, around which was piled like saturated excelsior. Excelsior had also been scattered over the cement floor of the basement, but it had burned off until the fire reached the foot of the stairway leading to the storeroom, when it had become extinguished. Several upright timbers in the basement, which had been placed there as the framework of a partition, but from which the laths and plastering were off, were charred from the floor upward two or three feet. The doors of the storeroom and basement had been locked and barred on the inside, and the windows covered with cloth. The building in which the store was located was two stories in height, and in the second story a family consisting of several persons resided and were in the building on the night in question.

Appellant was arrested at his residence in a different part of the city about an hour or more after the discovery of the fire. He denied any knowledge of the transaction. A police captain, who made a careful examination of the premises the morning succeeding the attempted burning of the building, testifies to substantially the same facts as above in regard to the condition of the store when he made the examination. Returning to the police station, he had a talk with appellant. The latter said that he had the only key to the store. While talking, appellant pulled out his handkerchief, which emitted a strong odor; when it was taken from him, he fainted; it smelled strongly of turpentine and kerosene. Upon being revived, appellant was asked as to the odor of the handkerchief, and said he could not account for it, as he had used it only to wipe his face and hands. He made a signed statement. Among other things he said:

"I own the stock in the store at 1003 East Twelfth street; I gave $4,800.00 for it, paying $3,000.00 cash, and still owe $1,000.00 on the purchase price. I have $4,000.00 insurance on the stock. I am the only one who has a key to the store. I left it about 9:30 o'clock p. m. the night of the fire. I put aprons over the inside of the windows to keep out the dust."

The day succeeding the discovery of the fire, a fire warden made an invoice of the stock of goods in the storeroom, and, exclusive of fixtures, a sewing machine, and refrigerator, its estimated value was fixed at $165.50.

The foregoing is in substance the abstract of the facts as made by counsel for appellant, to which he adds, "The defendant did not testify and no testimony was offered in his behalf."

The statute which appellant was charged with having violated is as follows:

"Every person who shall willfully set fire to or burn any shop, warehouse, office, storehouse or other building not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, so that such dwelling house shall be endangered by such firing, shall, upon conviction, be adjudged guilty of arson in the second degree." Section 4507, R. S. 1909.

I. The Information. (a) The gist of the offense, under section 4507, R. S. 1909, consists, not in the injury to the building set fire to, but the danger to the persons occupying the adjoining building. This being true, the ownership of the building is immaterial and need not be alleged. Under an indictment for an attempt to commit arson in State v. Hayes, 78 Mo. 307, 313, it was contended by the defendant that the indictment was bad for not charging the ownership of the house in the defendant. It was charged that the house was occupied by certain families named, human beings other than the defendant.

"The statute," said the court, "denounces the act of burning any dwelling house, in which there shall be at the time some human being, and it was not even necessary to name the...