State v. Odum

• Citation: 351 S.W.2d 10
• Decision Date: 13 November 1961
• Docket Number: No. 48173,No. 2,48173,2
• Parties: STATE of Missouri, Respondent, v. Tead ODUM, Appellant,
• Court: United States State Supreme Court of Missouri

Page 10

351 S.W.2d 10

STATE of Missouri, Respondent, v. Tead ODUM, Appellant,

No. 48173.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Hale W. Brown, Kirkwood, for appellant.

Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Sp. Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Tead Odum was found guilty of homicide in the perpetration of arson, declared to be first degree murder, Section 559.010 RSMo 1959, V.A.M.S., and was sentenced to life imprisonment. He has appealed from the ensuing judgment but has filed no brief in this court. We look to the valid assignments of error in the motion for new trial. Supreme Court Rule 28.02, V.A.M.R.

Appellant first challenges the sufficiency of the evidence to support the verdict. Appellant, who was 93 or 94 years of age at the time of trial, lived in a trailer near De Soto, Missouri, about three-fourths of a mile from the home of Julius Friedmeyer and Charles Von Damme, the two persons for whose death he was charged with murder, each of whom was about eighty years of age. In the morning of July 22, 1959, about 5:45 o'clock, John White, age 16, was sleeping outdoors and was awakened by the barking of his dog. He saw that the nearby Friedmeyer house was on fire. After sounding the alarm he and his father ran to the house. His father attempted to enter a window to the bedroom but it was too high, and he then 'knocked the screen out' of the screen door and opened the wooden door but could not enter the house because of the smoke and fire. This was the only door to the building and the screen door was latched from the inside. When the firemen arrived they 'knocked down' the fire by use of water, and when they entered the building they found the bodies of Julius Friedmeyer and Charles Von Damme on the floor. One was inside the door by a window, and the other was in front of the doorway leading to the back room and bathroom. Dr. Martin J. Glaser, a post mortem surgeon who performed an autopsy on the body of each, testified that the cause of death was third degree burns and suffocation. He was not asked and did not testify whether or not the bodies indicated any other injuries. Located in one of the rooms of the Friedmeyer house, apparently the kitchen, was an oil heater or stove (the defendant said it was 'to heat water with') fed by a 3/8-inch copper pipe extending from a 250-275 gallon tank located outside the building. The pipe entered the room through the floor, and when the firemen entered the building the copper pipe was severed about a foot from the stove and fuel oil (but of the State's witnesses said it 'may have been water') was 'squirting out the full size of the pipe,' or was flowing from the pipe in 'a pretty good stream.' One of the firemen 'crimped' the pipe with a pair of pliers to stop the flow, and he said that when he did so he could not 'see whether it was burning when it came out of there.' According to one of the firemen the copper pipe 'looked like it had been cut with a crude instrument' because it was 'heavily mashed.' This same fireman also stated that 'part of [the pipe] looked like it had been cut with something sharp.' He did not look at the part of the pipe attached to the stove, but he did notice that 'the stove had scooted a little bit.' There was fire 'everywheres' and 'all over' the house, and 'around the fire there was a lot of rags and stuff burning.' No one saw appellant at or near the burning house immediately before or at anytime after the fire was discovered. State's witness Hayden White testified that he passed the house about 11:30 o'clock on the night of July 21, and no lights were on in the house and he noticed nothing unusual.

On July 25, 1959, a member of the Highway Patrol questioned appellant. This patrolman testified that he asked appellant if he was responsible for the death of Julius Friedmeyer and that he replied that he was not. The patrolman then stated that when 'I confused him some and tangled him up in questioning him' he got mad and said, 'It is not my job to hang myself. That is up to a jury.' Outside appellant's trailer on a table the patrolman found a pair of appellant's shoes which appellant admitted he was wearing the night of July 21. The patrolman first said that the shoes were 'saturated' with fuel oil, but that no laboratory test was made to determine what substance was on the shoes although they had been taken to Jefferson City where the Highway Patrol has a laboratory. He then said that there was not enough oil on the shoes to be scraped off or taken out of the leather as a sample. He determined the substance on the shoes to be fuel oil by the odor and the discoloration, but he admitted that he 'wouldn't be able to tell you whether there is much difference between the odor' of fuel oil and kerosene. Appellant told the patrolman, and later testified, that he had spilled kerosene on his shoes while filling his lamp used for lighting his trailer. Another highway patrolman testified that to him the shoes 'had a strong odor of what appeared to be fuel oil or kerosene.' At some later time this second patrolman went to appellant's trailer at appellant's request to get some medicine for him, and while there the patrolman opened a drawer and found a bankbook' which showed the record of an account by Julius E. Friedmeyer in the Citizens Bank of Festus. Appellant testified that Mr. Friedmeyer did not have 'a very good education' and that he 'helped him quite a bit with his business especially his bank balances.' In futher explanation appellant stated that 'He [Mr. Friedmeyer] was always up in the air and thinking they was cheating him at the bank. Of course, the bank statement was a puzzle to him. He didn't know heads or tails about it. I always did that, you know, that is how they found the bank book in there. * * * He probably left it there himself the last time I had anything to do with him about that.'

The coroner arrived at the scene of the fire around six o'clock in the morning, but when he arrived 'the fire had been extinguished.' He found a 'strong box' lying outside of the Friedmeyer house. The box was open, the key was in the lock, it had ben burned, and it contained some burned scraps of paper. He placed the box in a trunk in the yard. There is no explanation of how the box was burned if it was in the yard during the fire, or how it got in the yard if it had been burned while in the house.

The state presented considerable evidence concerning a trip made by Mr. Friedmeyer and appellant on the day before the fire. By reason of arrangements made by Mr. Friedmeyer, appellant and Adolph Hasse and his son met at the Friedmeyer home about six o'clock on the morning of July 21. The exact purpose of the trip that followed is not apparent, but appellant testified that Mr. Friedmeyer wanted him to go with him 'to see if he could get trace of this deed of trust.' The record does not disclose by whom or to whom the deed of trust was made, what property it covered, or the interest of Mr. Friedmeyer or appellant, if any. This group of four drove to St. Clair, Missouri, to a real estate office. Mr. Hasse, Mr. Friedmeyer and appellant entered the office but Mr. Hasse did not remain with the others and did not hear what coversation took place. They then drove to Hillsboro to the office of Mr. Richard King where they remained about an hour. From there they drove to Cedar Tavern on Highway 30 where they ate lunch. Appellant testified that while at Cedar Tavern he observed a white man and two negro men watching them. Mr. Hasse testified that he did not see these men, and that if they were there he 'didn't notice them.' However, both appellant and Mr. Hasse testified that at Cedar Tavern two white men did ask for some information about a lake, and these two men testified and verified this occurrence. According to Mr. Hasse, he and the others then drove from Cedar Tavern to Union, Missouri, but appellant stated that the stop at Cedar Tavern for lunch was made after they had gone to Union. In either event, at Union they went to the office of a real estate broker and abstracter who testified that Mr. Friedmeyer, appellant, and a third man (presumably Mr. Hasse) came to his office shortly after one o'clock. He stated that there was no argument between Mr. Friedmeyer and appellant, but that Mr. Friedmeyer 'got quite boisterous and loud in the office.' He further stated that 'they had been to the Recorder's office regarding the release of a deed of trust and the deputy recorder sent them to my office. I was well acquainted with the matter because he had been there before, and I got out the same files and showed him what had transpired. * * * The deed of trust that he inquired about had been released.'

Mr. Hasse testified that while on this trip appellant and Mr. Friedmeyer 'did talk and argue,' and that 'once or twice' between Grubville and De Soto Mr. Hasse heard Mr. Friedmeyer tell appellant that 'he was going to foreclose on him' and that appellant replied, 'No, you can't do that.' However, when asked if Mr. Friedmeyer was trying to collect money from appellant, Mr. Hasse replied: 'Whoever owed him. He mentioned the fact he had money out and would like to get it.' He also said that when 'they got near De Soto they both calmed down,' or as he later said, 'they quietened down.' Appellant denied that Mr. Friedmeyer said he was going to 'foreclose on him' and stated that the 'conversation we had' pertained to some wood he had cut on some land which Mr. Fredmeyer had conveyed to him.

The group of four returned to DeSoto where Mr. Friedmeyer purchased three watermelons. They then drove to the home of Mr. Friedmeyer, but appellant testified that on the way they stopped at his trailer where he obtained $400 and a receipt book. Mr. Hasse and his son remained while the group sat on the porch of the Friedmeyer house and ate a watermelon, and they then left about 5:45 o'clock. Appellant testified that h...