State v. Paglino

• Decision Date: 11 June 1956
• Docket Number: No. 45129,No. 2,45129,2
• Citation: 291 S.W.2d 850
• Parties: STATE of Missouri, Respondent, v. Albert PAGLINO, Appellant
• Court: Missouri Supreme Court

Page 850

291 S.W.2d 850

STATE of Missouri, Respondent, v. Albert PAGLINO, Appellant.

No. 45129.

Supreme Court of Missouri, Division No. 2.

June 11, 1956.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 9, 1956.

Charles M. Shaw and Wayne C. Smith, Jr., Clayton, for appellant.

John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

A jury has found Albert Paglino guilty of a homicide in the perpetration of arson and his punishment has been fixed at life imprisonment. Sections 559.010, 559.030 RSMo 1949, V.A.M.S.

The essence of the crime of arson is an incendiary and therefore wilful burning of property and the burden is upon the state to prove beyond a reasonable doubt that the fire was caused by a criminal agency and the identity of the person charged as responsible for the fire; and upon the state's failure to prove these essentials the defendant is entitled as of course to an acquittal as a matter of law. State v. Morney, 196 Mo. 43, 93 S.W. 1117; Curtis, Law of Arson, Sec. 486, p. 526; 6 C.J.S., Arson, Secs. 3(a)(2), 29, pp. 721, 749; 4 Am.Jur., Secs. 42, p. 104, 44, p. 105, 55, p. 109. Except for having been so plainly established, the known, unquestionable facts are bizarre and fantastic almost beyond belief. Upon this appeal the essentially meritorious question is whether, viewed favorably to the jury's verdict, State v. Berkowitz, 325 Mo. 519, 526, 29 S.W.2d 150, 153, the plainly established facts and the circumstantial evidence, 1 Wigmore, Evidence, Secs. 26, p. 402, 149, p. 583; 20 Am.Jur., Secs. 270, p. 258, 273, p. 260, are of such probative force as to support the inference and finding of the necessary essentials of the incendiary burning of the property and the defendant's responsibility for the fire.

The appellant, Paglino, did not testify and no witness was called or testified in his behalf, hence all the evidence adduced came from the state's witnesses. About midnight, April 5, 1954, the defendant, Albert Paglino, appeared at Mr. Stark's St. Louis Tourist Court, a motel on U. S. Highway 66 (8950 Watson Road) and registered, using his correct name, as a guest. He filled out the registration card, including the make and license number of his 1950 Nash automobile. After registering, Paglino followed Mr. Stark to cabin number five. Mr. Stark turned on the light and showed him the cabin which had not been occupied by anyone for two days and there was no one in the cabin at that time. Cabin number five's double, cabin number four, was occupied by a man and a woman registered as Mr. and Mrs. Boyd 'from Oklahoma.' Paglino returned to the office where his car had been parked and drove it down in front of cabin number five. Mr. Stark did not examine the car closely but when he walked past it leaving and returning to the office he saw no one in the automobile other than Paglino. Incidentally, Mr. Stark never saw Paglino again until he was brought to the motel on the afternoon of April 15th by members of the sheriff's force.

Mr. Stark returned to the office and about 12:45 o'clock turned off the master control switch for the butane gas in the cabins and went to bed. He heard no noises or disturbances and in a short time went to sleep. About an hour later, 1:45 o'clock, a man driving down Watson Road saw that the motel was on fire. He drove his car up to the office, awakened Mr. Stark and told him to call the fire department. As the man walked towards cabin number five where the fire was located he met a man and woman coming out of one of the cabins. (Again incidentally, Mr. and Mrs. Boyd, the occupants of cabin number four, are not mentioned again in this record.) The fire department arrived in about ten minutes, the back half of cabin number five, and particularly in the southeast corner, was in flames but within five minutes the fire was extinguished.

After the fire had been extinguished the charred, indistinguishable remains of a man were found on the floor between the bed and the door. Since Paglino had been assigned and presumably entered cabin number five and was not present during or after the fire, it was assumed that he was the dead man found on the floor. Consequently, on April 9, 1954, Paglino's family, his father and his brother, caused a funeral to be conducted and the charred remains to be buried in Resurrection Cemetery.

That night a nurse, a close friend of Albert's former wife, Betty, who had attended the funeral that morning, was having a drink with a girl friend in Ziegenhein's Biltmoor Lounge on South Kingshighway and was indeed startled when about midnight Albert Paglino walked into the tavern and entered a telephone booth near the bar. As Albert entered the booth she said to one of the tavern owners, 'Ed, my God, we buried that man this morning.' It may as well be noted at this point, parenthetically, that this was the first time since midnight on April 5th that anyone had seen or heard of Albert and, except for the subsequently noted bizarre narrative by his best friend McCormick, there is no explanation or accounting for his whereabouts between midnight April 5th and midnight April 9th when he walked into the tavern. When Albert came out of the phone booth the owner 'went up to him and introduced myself as being Ed Bishop and I tried to get him into a conversation and I asked him to sit down and have a beer. He sat down and I gave him one glass of beer and he hadn't taken but very little of that, and I am talking to him and I asked him his name and he gave me the name of Lewis. * * * and I asked him where he lived and he said, 'Around Dresden and Eichelberger,'--I trying to hold him until possibly the police would come in--I asked him where he worked and he told me Bettendorf's Meat Market and I said, 'Where else?' And he said, 'Clark's,' and he told me he was to meet a fellow here that works at Clarks, and I said, 'Does he manage the place,' and he said, 'Yes.' And I said, they are possibly open because I have stopped in to get gasoline on my way home.' No one called the police, however, and in ten or fifteen minutes Albert left the tavern and the nurse said that he made no effort to hide or to run away.

James A. McCormick, a filling station attendant at Clark's Super Gas, 1139 North Kingshighway, was Paglino's associate if not closest friend. McCormick and his wife and Paglino and his wife were frequent social guests in one another's homes. Paglino and McCormick worked together at Clark's when Paglino was employed there in October and November 1952 under the assumed name of Albert Lewis. McCormick was a pallbearer at the funeral on Friday morning, April 9, 1954. About midnight on the day of the funeral Paglino called McCormick on the telephone (undoubtedly the call made from the tavern) and after identifying himself said, "Well, this is Al again and I need help.' He said, 'I got a fictitious story,' I don't recall what words he used, but he said, 'I'm in bad trouble and I need help and I don't know if anyone will believe me." In ten or fifteen minutes Paglino appeared at the service station. As he walked up McCormick said, "I thank God I see you alive again." Paglino replied, "I'm proud to be here, but I still have a fantastic story to tell you and I don't know if it will hold,' and he said he had a good story and he was going to stick to it.' McCormick closed the filling station and drove to the Warwick Hotel in downtown St. Louis where Paglino had registered on April 4, 1954, at 11:05 o'clock as Albert Lewis. They entered the hotel, Paglino got his clothes and checked out. Parenthetically again, the hotel clerk identified the registration card and the fact that the guest checked out at 3:25 a. m. April 10, 1954, but upon the trial of the case the clerk was unable to identify Paglino as the person who registered or checked out and there is no fact or circumstance in the record indicating whether, if ever, Paglino actually occupied a room or stayed in the hotel on any occasion between the hour and date of his registration and his checking out. Upon inquiry as to how he got to the service station, Paglino told McCormick that 'he walked all the way from the Warwick to the place he was living on Osceola Street and back to his mother-in-law's on South Broadway and he claimed he walked from there to the station.' In any event, after getting his clothes they drove to McCormick's and McCormick's wife made some coffee and they talked until four o'clock in the morning and then went to bed.

It was during this interval that Paglinotold McCormick the story which McCormick, in turn, repeated to the jury. 'He told me the night he left my station, this was the last time I saw him, that he was going to a radio shop, I believe out on Hampton Avenue. He told me whenever he went out there he decided to stop in the White Castle to get a cup of coffee and when he came out he saw two fellows on the corner hitch-hiking and he decided he didn't have anything else to do and he would pick them up to get them out to the City limits, which he did. And when he got to the City limits, he said this was as far as he could go and one fellow pulled out a gun, a '45', and forced him down the road and he was driving all night and the next day he got down some place in Oklahoma and he said there was one fellow at the station they stopped at which would verify he was there. They had to open up the safe to get change for a five dollar bill. And he said they went to Amarillo, Texas, I believe, and he said these fellows forced him out of the car. I asked him, 'Did he get anything out of the car,' and he said, 'No, the only thing he got was the suitcase, and I did not see a wallet or anything else.' He claimed he hitch-hiked all the way back and in the meantime he went to the police in Amarillo and they thought he was faking and needed a place to sleep for the night and he claimed he hitch-hiked the rest of the way to St....