State v. Paglino, 46219

CourtUnited States State Supreme Court of Missouri
Citation319 S.W.2d 613
Docket NumberNo. 46219,No. 2,46219,2
PartiesSTATE of Missouri, Respondent, v. Albert PAGLINO, Appellant
Decision Date08 December 1958

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

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

STOCKARD, Commissioner.

Albert Paglino was found guilty of a homicide in the perpetration of arson, declared to be first degree murder, Section 559.010 RSMo 1949, V.A.M.S., and the jury assessed his punishment at life imprisonment. See Section 559.030 RSMo 1949, V.A.M.S. He has appealed from the ensuing judgment. This is the second appeal in this case. See State v. Paglino, Mo.Sup., 291 S.W.2d 850.

The first contention on this appeal is that the trial court erred in overruling appellant's motion for a directed verdict of acquittal. Therefore, we shall set out in detail the evidence presented on behalf of the state.

On April 4, 1954, at 11:09 p. m., appellant registered at the Warwick Hotel in downtown St. Louis using the assumed name of Albert C. Lewis. There was no evidence that he actually stayed at this hotel after registering in and until he checked out at 3:23 a. m. on April 10 under circumstances to be mentioned later. About midnight on April 5, appellant appeared at the St. Louis Tourist Court, a motel on U. S. Highway 66 in St. Louis County, and registered as a guest using his correct name. He listed on the registration card the make and license number of his 1950 Nash automobile. The manager of the motel, Mr. Stark, took appellant to cabin 5, turned on the lights and showed the cabin to him. There was no one there, and the cabin had not been used for 'quite a few nights.' Mr. Stark did not see anyone other than appellant in his automobile.

Cabin 5 was part of a 'duplex.' The other part was designated as cabin 4 and was occupied by Mr. and Mrs. Willard Boyd from Spiral, Oklahoma. The building was about seventeen years old, it was constructed of pine lumber, and it had a tar paper roof and exterior walls of 'imitation brick' which was a form of tar paper. Cabin 5 had a butane gas heater and sometime after appellant registered and before Mr. Stark went to bed about one o'clock in the morning, Mr. Stark turned off the central control valve which shut off the supply of butane gas to cabin 5. About 1:45 o'clock James F. Baumgardner, while driving westward on Highway 66, saw ahead of him a 'sudden burst of flames,' he 'just saw it all of a sudden, like an explosion or something,' and when he drove to the tourist court he saw that cabin 5 was on fire. The windows and doors were not open, there was a 'vast amount of flames' and the building was burning very rapidly. Mr. Baumgardner awakened Mr. Stark who called the fire department. The firemen arrived in about ten minutes and it took about twenty minutes to put out the fire and another ten or fifteen minutes 'to knock all the ashes down.'

After the fire was extinguished the unidentifiable and charred remains of a man was found lying on the floor of cabin 5 near the door. Appellant's automobile was parked near the cabin, and since the body was found in the cabin which had been assigned to appellant, it was assumed that he was the one who had perished in the fire. Appellant's father and brother caused a funeral to be conducted on April 9 and what was then believed to be appellant's remains were buried in Resurrection Cemetery.

James A. McCormick was an attendant at a Clark's Super Gas station at 4300 South Kingshighway, and appellant had worked with him when employed there in 1952 under the assumed name of Albert Lewis. McCormick and appellant were good friends, and McCormick served as a pallbearer at the funeral held on April 9 for appellant. On Friday, April 2, appellant went to the Clark station where McCormick worked and purchased gasoline for his automobile. He apparently handled the gasoline pump himself, and he also filled with gasoline a five-gallon can which was located in the trunk of his automobile. Appellant stated to McCormick that he was going to the Hampton Radio Shop. Apparently this was the last time McCormick saw appellant until between twelve and one o'clock of the morning of April 10 when appellant called him on the telephone and identified himself as 'Al,' and after inquiring if he were alone said 'I'll be up.' McCormick thought 'somebody was faking,' but after awhile he saw and recognized appellant in a parking area at the rear of the station. McCormick went to him and said 'I thank God I see you alive again.' Appellant replied, 'I'm proud to be here. I have a fantastic story. I don't know whether it will hold or not, but I hope so.' Appellant then related to McCormick that on the night he went to the Hampton Radio Shop, which was April 2, he went to a White Castle for a cup of coffee and saw 'two fellows' on a corner hitchhiking and he decided to pick them up and take them out as far as the city limits. However, when he got to the city limits one of the men drew a gun on him and forced him to drive to some place in Oklahoma where they stopped for gasoline and then on to Amarillo, Texas. There he was forced out of his automobile, but he was permitted to get his suitcase from the automobile. He went to the police and told them his story but they would not believe him and he hitchhiked back to St. Louis. He told McCormick that he had read in the Springfield, Missouri, newspaper about the funeral being held for him. According to this story, appellant left St. Louis the evening of April 2 and did not return until the evening of April 9.

When appellant went to the Clark station on the morning of April 10, he was 'very dirty' and needed a shave. He said that his clothes were at the Warwick Hotel, and McCormick took appellant there to get them. It was apparently at this time that appellant checked out of the hotel. They then went to McCormick's home on South 18th Street, and McCormick's wife made some coffee and they talked until four o'clock in the morning and then went to bed. That night appellant made no effort to get in touch with any member of his family, although he knew that his family believed him to be dead. The 'following day' appellant asked McCormick to try to get in touch with his wife, and McCormick called the mother of appellant's wife and learned that she was visiting friends in Illinois. At appellant's request McCormick and his wife drove to Illinois and brought Mrs. Paglino back to St. Louis. Appellant and his wife then stayed at McCormick's home until the following Tuesday or Wednesday which would have been April 13 or 14.

There is no further accounting of appellant's activities until about eleven o'clock on the night of April 15 when he was arrested as he walked toward his automobile, the 1950 Nash, which was then parked across from his father's home in the 5200 block of Vernon Avenue in St. Louis. There is no showing how or when the police officials learned that appellant was still alive, but apparently the fact was known or suspicioned earlier than the actual arrest because the sheriff's office had a 'stakeout' at the automobile.

On April 16, the day following appellant's arrest, the Affton fire marshal and a deputy sheriff 'went through' the ashes of cabin 5 at the St. Louis Tourist Court and found a badly burned billfold in which there was a social security card bearing the name of Willie Burchett and photographs of a boy and girl identified as Burchett's niece and nephew. The state's evidence clearly justified a finding, and appellant does not assert otherwise, that the body found in the cabin after the fire was that of Willie Burchett. However, there was no evidence of how or under what circumstances he happened to be in the cabin rented to appellant, and there was no evidence that Willie Burchett was ever seen alive by anyone in St. Louis, or that he and appellant were acquainted.

On April 6, 1954 Dr. John Pfaff, a pathologist, examined the then unidentified charred body found on the floor of cabin 5, but he made no attempt to identify it, and from the description he gave of its horribly burned condition identification from it alone would indeed have been miraculous. He testified that in his opinion a fire resulting from the burning of the building without the aid of some inflammable substance 'could' cause such burning of a body 'but it would be unlikely.' A blood test revealed '.41 grams percent of ethel alcohol' which indicated intoxication to 'a major degree' and that the person was 'approaching unconsciousness if not comatose.' On April 16, the body was exhumed and Dr. John P. Wyatt, also a pathologist, performed an autopsy. An examination of blood samples revealed '80.2 per cent carbon monoxide saturation,' and Dr. Wyatt stated that this 'level' of carbon monoxide was a 'lethel or fatal concentration.' Because of 'cherry red' coloration caused by carbon monoxide within the muscles and blood and because carbon particles were found in the windpipe and the back of the throat, it was the opinion of the pathologists that 'respiration had occurred' after the fire started and that Burchett was alive at that time. It was also the opinion of the pathologists that the cause of death was the concentration of carbon monoxide resulting from the fire and from the severe thermal (burning) injury received in the fire.

Appellant's automobile and the can of gasoline necessarily play an important part in the chain of events. McCormick testified that on April 2 when appellant obtained the gasoline at the Clark service station he was driving a 1950 Nash automobile. Presumably this would have been the automobile that appellant was driving when a short time later two men, according to the story he told McCormick, forced him to drive to Texas and then took the automobile from him. However, appellant unquestionably had the automobile when...

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