State v. Pierson

• Citation: 85 S.W.2d 48,337 Mo. 475
• Parties: The State v. Ralph Pierson, Appellant
• Decision Date: 11 July 1935
• Court: Missouri Supreme Court

85 S.W.2d 48

337 Mo. 475

The State v. Ralph Pierson, Appellant

Supreme Court of Missouri

July 11, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge.

Reversed and remanded.

Verne R. C. Lacy for appellant.

(1) An indictment which was returned without any legal evidence having been presented to the grand jury will be quashed, and it is competent for the defendant to prove the character of the evidence presented to the grand jury, but not the quantum, by the testimony of the prosecutor and members of the grand jury. Secs. 12, 28, Art. II, Mo. Const.; Sec. 3516, R. S. 1929; People v. Walsh, 92 Misc 573, 156 N.Y.S. 366; State v. Coates, 130 N.C. 701 41 S.E. 706; People v. Sexton, 42 Misc. 312, 86 N.Y.S. 517; People v. Restenblatt, 1 Abb. Prac. 268; State v. Shawley, 67 S.W.2d 74; State v. Grady, 84 Mo. 220; State v. Faulkner, 185 Mo. 673, 84 S.W. 967; State v. Cole, 145 Mo. 672, 47 S.W. 895; State v. Baker, 20 Mo. 339; 3 Rice's Criminal Procedure, p. 40. (2) A defendant in a criminal case is entitled to either a list of the prospective jurors in advance of the trial, or to a reasonable time prior to the swearing of the jury within which to make an investigation as to their possession of the legal qualifications of jurors. Sec. 22, Art. II, Mo. Const.; Secs. 3677, 8746, 8747, R. S. 1929. (3) Proof of motive is not admissible until the corpus delicti of the offense charged is established. State v. Francis, 52 S.W.2d 552. (4) Declarations of one coconspirator against another made after the consummation of the common enterprise are inadmissible. Secs. 4036, 4040, R. S. 1929; State v. Hayes, 249 S.W. 49. (5) Testimony given by a witness in a criminal case at a previous trial is inadmissible at a subsequent trial unless the witness is shown to be either dead or without the State. Section 22, Art. II, Mo. Const.; State v. McO'Blenis, 24 Mo. 402; State v. Houser, 26 Mo. 431; State v. Harp, 6 S.W.2d 562; State v. Bradford, 24 S.W.2d 993. (a) The admissibility in evidence of testimony given by a witness at a previous trial depends upon the question of whether the party would be competent as a witness if he were produced in court. Messimer v. McCrary, 113 Mo. 382, 21 S.W. 17; Howard v. Strode, 242 Mo. 210, 146 S.W. 792. (b) The presumption of incompetency arising from an adjudication of insanity may be rebutted by the voir dire examination of the witness, and, where it is sought to deprive a defendant of his right of confrontation by reading previous testimony given by a witness, since insane, the defendant is entitled to have the allegedly incompetent witness produced for a voir dire examination. Sec. 1731, R. S. 1929; State v. Herring, 268 Mo. 514, 188 S.W. 169; 28 R. C. L. 453, sec. 40. (c) Mental defects may be shown to affect the credibility of a witness. Alleman v. Stepp, 52 Iowa 626, 3 N.W. 636; Regina v. Hill, 5 Cox Cr. Cas. 259. (d) When testimony previously given by a witness is offered at a subsequent trial in lieu of the witness, objections may be made to specific portions of that testimony as it is being read in the same manner that objections are made to the admissibility of testimony in depositions. State v. Bradford, 24 S.W.2d 993; Secs. 1782, 3622, R. S. 1929. (6) 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. (a) 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. 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. Ruckman, 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.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) Instruction I is a proper declaration of the law of the case. State v. Daly, 210 Mo. 678; State v. Green, 66 Mo. 648. (2) Instruction 2 is predicated upon evidence in this case. State v. Meadows, 51 S.W.2d 1037. (3) Instruction 3 is a cautionary instruction of the stock variety. State v. Shelton, 223 Mo. 139; State v. Howard, 324 Mo. 157; State v. Hunt, 141 Mo. 633. (4) Instruction 4 is in proper form and a full declaration of the law as to motive. State v. David, 131 Mo. 396. (5) Instruction 5 is correct and proper. State v. Kebler, 228 Mo. 383; State v. Thorton, 58 S.W.2d 317; State v. Barker, 18 S.W.2d 21. (6) Instruction 7 is correct in both form and law. (7) The court's rulings relative to objections made to the statement of the assistant circuit attorney, in outlining what the State expected the evidence to show, constitutes no error. State v. McGuire, 327 Mo. 1188; State v. Cutter, 318 Mo. 692. (8) The time allowed defendant to make his peremptory challenges of jurors was reasonable. Sec. 3676, R. S. 1929. (9) The court's ruling upon defendant's motion to quash the indictment was correct. (10) Trial courts in criminal cases have large discretion as to order in which evidence may be introduced. State v. Barnes, 29 S.W.2d 158; State v. Miller, 12 S.W.2d 39. (11) Permission to read in evidence the testimony of one Blanche Kaune, upon the showing made, constitutes no error. State v. Harp, 6 S.W.2d 562; State v. Mc O'Blenis, 24 Mo. 402; State v. Barnes, 274 Mo. 625; Sec. 1731, R. S. 1929; State v. Vaughn, 223 Mo. 155; Kash v. Coleman, 145 Mo. 649; State v. Whitesett, 232 Mo. 526. (12) This objection in appellant's motion for new trial is not supported by the record. State v. McCord, 237 Mo. 242; State v. McGuire, 39 S.W.2d 526: State v. Batey, 62 S.W.2d 452; State v. Stuart, 316 Mo. 155. (13) Anything done and said by any of the parties to a conspiracy with respect to the purpose of it is admissible in evidence against all or either of the parties whether said in the presence of each other or not. State v. Bersch, 276 Mo. 414; State v. Bobbitt, 228 Mo. 266; State v. Shout, 263 Mo. 373. (14) The court's action in permitting the cross-examination of the witness, offered by the State, was discretionary and not error. State v. Church, 199 Mo. 635; State v. Kinnamon, 314 Mo. 672. (15) The statement of the assistant circuit attorney, complained of was merely stating the view of the State in the matter, and constituted no error. (16) This assignment too general to present anything for review in this court. Sec. 3735, R. S. 1929. (17) This objection is not supported by the record. (18) Acts and declarations of any of the conspirators done or made during the pendency of the conspiracy, and in furtherance thereof, are admissible against all. State v. Buckley, 318 Mo. 25; State v. Shields, 296 Mo. 402; State v. Bersch, 276 Mo. 419; State v. Roberts, 201 Mo. 729. (19) The assignments of error Nos. 47, 48, 50 and 51 in motion for a new trial are too general to preserve anything for review here. State v. Ryan, 50 S.W.2d 1000; State v. Majors, 44 S.W.2d 166; State v. Eason, 18 S.W.2d 75.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Defendant and three others, Lewis E. Balson, Andrew B. Meadows and Robert H. Cotham, were jointly indicted for murder in the first degree for the killing of May Frazer, alleged to have been done in the perpetration of arson, to-wit, the burning of the Buckingham Hotel Annex in St. Louis on December 5, 1927. Severances were granted and each defendant's case was disposed of separately from the others. Cotham pleaded guilty to murder in the second degree and was sentenced to ten years' imprisonment in the penitentiary. Meadows was tried and convicted of murder in the first degree, sentenced to death and the judgment was affirmed by this court, State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033. Meadows' death sentence was eventually commuted to life imprisonment. This defendant was tried and convicted and on appeal to this court the judgment was reversed and the cause remanded for new trial, State v. Pierson, 331 Mo. 636, 56 S.W.2d 120. On a second trial he was again convicted and was sentenced to life imprisonment. This appeal was taken by defendant from the judgment on said second trial.

The Buckingham Hotel Annex consisted of two four-story buildings, called respectively the east and west wings, located on the south side of West Pine Boulevard, connected by "bridges" or passageways at each story. Opposite thereto, on the north side of the street, was the main hotel building, called the Buckingham Hotel. It was connected with the Annex by an underground tunnel or subway. The east wing of the Annex burned. That building was old and inflammable. The fire occurred at about three o'clock in the morning of December 5, 1927. At the time of the fire Meadows was night watchman at said east wing and Cotham was night clerk at the hotel proper. Both had occupied those respective positions for a considerable time. Said east wing housed a large number of guests, many of whom resided there. Among the latter was May Frazer, who, the State's evidence tends to show, lost her life in the fire.

The State's evidence tends to prove that said hotel properties were owned by the Buckingham Realty Company, a corporation whose stock, except one share, was owned by defendant and Balson, and that the properties were insured and were heavily...