State v. Pierson

• Citation: 123 S.W.2d 149,343 Mo. 841
• Decision Date: 20 December 1938
• Docket Number: 35358
• Parties: The State v. Ralph Pierson, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 149

343 Mo. 841

The State v. Ralph Pierson, Appellant

No. 35358

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. James M Douglas, Judge;

Affirmed

Walter N. Davis for appellant.

(1) Defendant is entitled to inspect the minutes of the grand jury to impeach the State's witnesses as provided by Section 3533, Revised Statutes 1929, as follows "Members of the grand jury may be required by any Court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such Court." Cramer v Harmon, 126 Mo.App. 54, 103 S.W. 1086; State v. Barnett, 253 Mo. 341; State v. Whelehon, 102 Mo. 17, 14 S.W. 780; State v. Thomas, 99 Mo. 235, 12 S.W. 643. (2) Defendant is entitled to a change of venue when prejudice of more than two judges of the Circuit Court of the City of St. Louis has been proven. Sec. 2127, R. S. 1929. (3) Defendant was entitled to his discharge, under the Statutes of Limitations, after the State had failed to bring him to trial within the fifth term after the finding of the indictment, when no continuance had been secured by the State under the provision of Section 3698, Revised Statutes 1929, and where the case was neither continued on the application of the defendant nor by his consent, nor by the court due to lack of time on the part of the court within which to try the case, eleven terms of court having expired from the June Term, 1933, to the September Term, 1935, the above facts being proved by the stipulations signed by the circuit attorney and filed of record in this case. Sections 3696-3699, Revised Statutes 1929, are Statutes of Limitation, imposing an imperative and mandatory duty upon the State to bring the accused to trial within the time specified. To entitle an accused person to his discharge under the provisions of Sections 3696-3699, no demand for trial need be made by the accused. Laches on the part of the State include an omission to perform a duty imposed by law, as well as an affirmative act. Secs. 3696-3699, R. S. 1929; State v. Wear, 145 Mo. 162, 46 S.W. 1099; Stevens v. Wurdeman, 246 S.W. 189; State v. Nelson, 279 S.W. 401; State v. Chadwick, 47 P.2d 234; Ex parte Chalfant, 93 S.E. 1032; People v. Foster, 261 Mich. 247, 246 N.W. 61; State v. West, 270 S.W. 281; Troll, Administrator, v. St. Louis, 257 Mo. 625, 158 S.W. 167; State v. Harp, 6 S.W.2d 562; State v. Hutting, 21 Mo. 464. (4) Having no jurisdiction, due to the case having been transferred to the circuit court in general term, and for the further reason that defendant, having been entitled to his discharge under the indictment for arson, No. 260, February Term, 1930, could not, under the constitutional guarantees, be placed twice in jeopardy for the same offense, defendant's special plea in bar should have been sustained, and proceedings in the circuit court in division abated. Mo. Const., Art. II, Sec. 23; State v. Wear, 145 Mo. 162, 46 S.W. 1099; State v. Cooper, 1 Green Law, 361; State v. Toombs, 34 S.W.2d 66. (5) Where several indictments in reality are one and the same felony, the defendant is entitled to have them all disposed of in a joint trial. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61; State v. Needham, 194 Mo.App. 201, 186 S.W. 585; State v. Wister, 62 Mo. 592. (6) The court erred in overruling the defendant's demurrer to the evidence at the close of the entire case, the State having failed to prove the corpus delicti of the offense charged. (a) Testimony completely impeached is no testimony at all. State v. Huff, 161 Mo. 459, 61 S.W. 900; People v. Wagner, 71 A.D. 399, 75 N.Y.S. 950; People v. Lyons, 51 Mich. 215, 16 N.W. 380. (b) In the absence of proof to the contrary, every fire, especially in a large city, is assumed to be from accidental or natural causes. State v. Pienick, 90 P. 645, 11 L. R. A. (N. S.) 987; People v. Wagner, 71 A.D. 399, 75 N.Y.S. 950. (c) The corpus delicti, or murder in the first degree, based upon a homicide during the perpetration of arson, requires proof of the corpus delicti of arson. Sec. 3982, R. S. 1929; State v. Meadows, 51 S.W.2d 1034. (d) The corpus delicti in arson is not merely the burning of a building, but the burning by the willful act of some person criminally responsible for his acts, and evidence must be introduced that destroys the presumption of law that the fire was from natural or accidental causes. State v. Jones, 106 Mo. 302, 17 S.W. 366; State v. Berkowitz, 29 S.W.2d 150; State v. Austin, 183 Mo. 478; State v. Santino, 186 S.W. 976; State v. Bersch, 276 Mo. 397, 207 S.W. 809; State v. Jackson, 267 S.W. 855; State v. Falco, 51 S.W.2d 1030; State v. Pienick, 90 P. 645, 11 L. R. A. (N. S.) 987; Carlton v. People, 37 N.E. 244; State v. Ruckmann, 253 Mo. 487, 161 S.W. 708; People v. Wagner, 71 A.D. 399, 75 N.Y.S. 950; State v. King, 53 S.W.2d 252; State v. Varnell, 316 Mo. 169, 289 S.W. 844; State v. Freyer, 48 S.W.2d 894; State v. Blankenship, 50 S.W. 1024. (7) Conspiracy for arson requires proof of independent circumstances as corroboration beyond the testimony of a coconspirator and one conspirator cannot corroborate another. State v. Blankenship, 50 S.W. 1024; State v. Falco, 51 S.W.2d 1030. (a) The rule is that it is necessary that the independent evidence not merely corroborate the testimony of the coconspirator in some particulars, but that it establish the existence of the corpus delicti prima facie. Tingle v. United States, 38 F.2d 575. (b) "The existence of the conspiracy charged cannot be established against an alleged conspirator by evidence of the acts or declarations of his alleged coconspirators done or made in his absence." 3 Greenleaf on Evidence (16 Ed.), sec. 94, note 11; Thomas v. United States, 57 F.2d 1039; State v. Blankenship, 50 S.W. 1024; State v. Falco, 51 S.W.2d 1030; State v. Austin, 183 Mo. 478; State v. Pugh, 296 S.W. 138; Pope v. United States, 289 F. 312. (c) "No conviction shall be had for conspiracy . . . unless one or more overt acts . . . be proved on trial." Sec. 3686, R. S. 1929. (d) Where guilt of substantive offenses, as well as of conspiracy, depends upon showing a conspiracy, the evidence is insufficient unless the connection of the accused is established by evidence independent of the acts or declarations of alleged coconspirators. Robinson v. United States, 33 F.2d 240; Graham Cracker v. United States, 15 F.2d 740; Galatos v. United States, 80 F.2d 15; Kuhn v. United States, 26 F.2d 463; Minner v. United States, 57 F.2d 506; Tingle v. United States, 38 F.2d 573; State v. Austin, 183 Mo. 478; State v. Pugh, 296 S.W. 138; Pope v. United States, 289 F. 312; Hauger v. United States, 173 F. 53; Stazer v. United States, 233 F. 510; State v. Proctor, 196 S.W. 158. (8) Prejudicial argument and acts of the assistant circuit attorney constitute a reversible error in that it denies the defendant a fair and impartial trial. State v. Pierson, 56 S.W.2d 120; State v. Fischer, 124 Mo. 460; State v. Bobbst, 131 Mo. 338; Robinson v. United States, 32 F.2d 505; Elmer v. United States, 260 F. 646; Hale v. United States, 25 F.2d 430; Johnson v. United States, 215 F. 679; August v. United States, 257 F. 388; Berger v. United States, 295 U.S. 78; Quercia v. United States, 289 U.S. 469; Skuy v. United States, 261 F. 316; State v. Fennell, 246 Mo. 322, 152 S.W. 36.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) General assignments of error 29, 43 and 44 in appellant's motion for new trial are insufficient. Sec. 3735, R. S. 1929; State v. Jackson, 102 S.W.2d 612; State v Reed, 44 S.W.2d 31; State v. Salisbury, 43 S.W.2d 1021; State v. Williams, 71 S.W.2d 732. (2) The court did not err in overruling appellant's motion to inspect the minutes of the grand jury. Sec. 3533, R. S. 1929; State v. Thomas, 99 Mo. 235; State v. Whelehon, 102 Mo. 17. (3) It was no error for the Circuit Court of the City of St. Louis sitting in general term to overrule the appellant's application for a change of venue. Secs. 2126, 2127, 2130, R. S. 1929; State v. Huett, 104 S.W.2d 252; State v. Mason, 98 S.W.2d 574. (4) The appellant was not entitled to be discharged under Section 3696-3699, Revised Statutes 1929. Secs. 3696, 3697, 3698, 3699, R. S. 1929; State v. Nelson, 279 S.W. 402; State v. Wear, 145 Mo. 218; Ware v. State, 159 Ark. 159; People v. Foster, 246 N.W. 60; State v. Dewey, 73 Kan. 735; Rose v. State, 6 P.2d 1072; State v. McTague, 173 Minn. 153; Worthington v. United States, 1 F.2d 154; Poffenbarger v. United States, 20 F.2d 42; State v. Harp, 6 S.W.2d 562. (5) The court did not err in overruling the appellant's special plea in bar to the jurisdiction of the court. Sec. 3696, R. S. 1929; State v. Landwehr, 60 S.W.2d 4. (6) The court did not err in overruling appellant's motion for a joint trial under indictments 253-260, inclusive. (7) The court did not err in overruling appellant's demurrer at the close of the State's case. State v. Bigley, 247 S.W. 169; State v. Huett, 104 S.W.2d 252. (8) The court did not err in overruling the appellant's demurrer at the close of the entire case. State v. Lawrence, 71 S.W.2d 740; State v. Meadows, 51 S.W.2d 1033; State v. Blankership, 50 S.W.2d 1024; State v. Berkowitz, 29 S.W.2d 150; State v. Koch, 10 S.W.2d 928; State v. Pierson, 56 S.W.2d 120, Id., 85 S.W.2d 56. (9) Instructions to which the appellant did not object nor save exceptions are not before this court for review. State v. Herring, 92 S.W.2d 132; State v. McGee, 83 S.W.2d 98; State v. Mosley, 22 S.W.2d 784. (10) The court did not err in refusing to give appellant's requested Instruction B. State v. Decker, 104 S.W.2d 307; State v. Arenz, 100 S.W.2d 264; State v. Wilkins, 100 S.W.2d 889. (1...