State v. Pierson, 32316.

• Decision Date: 14 December 1932
• Docket Number: No. 32316.,32316.
• Parties: THE STATE v. RALPH PIERSON, Appellant.
• Court: Missouri Supreme Court

56 S.W.2d 120

THE STATE v. RALPH PIERSON, Appellant.

No. 32316.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.

REVERSED AND REMANDED.

Hay & Flanagan, John T. Hicks and William Baer for appellant.

(1) The court, upon the evidence adduced, should have granted defendant's application for a change of venue and the failure so to do was an abuse of the court's discretion. State v. Ross, 178 S.W. 475; State v. Goddard, 146 Mo. 182; State v. McBride, 265 Mo. 594, 178 S.W. 489. (2) The prosecutor, in violation of the statute (R.S. 1929, sec. 3692), went wholly outside of the direct examination and adduced and sought to adduce evidence both irrelevant and highly prejudicial to defendant in his inquiry tending to show that defendant was a classmate and friend of Franklin Miller, the Circuit Attorney. State v. Aurentz, 263 S.W. 181; State v. Lasson, 292 Mo. 155, 238 S.W. 104; State v. Bowman, 272 Mo. 491, 199 S. W. 164; State v. Goodwin, 271 Mo. 73, 195 S.W. 728; State v. Culpepper, 293 Mo. 249, 238 S.W. 801; State v. Barri, 199 S.W. 138; State v. Hathhorn, 166 Mo. 238; State v. Sharp, 233 Mo. 287; State v. Swearingen, 190 S.W. 270; State v. Nicholson, 7 S.W. (2d) 375. The prosecutor likewise went wholly outside of the direct examination of the defendant, in his inquiry tending to show what happened at the police headquarters, after defendant's arrest. See authorities cited under 1. (a) This inquiry was not only wholly outside of the direct examination of the defendant, but was incompetent for the reason that it appears from the evidence that the defendant denied the accusations made against him by witness Cotham, which denial rendered all evidence detailing such accusations inadmissible. 16 C.J. 1261; State v. Aurentz, 263 S.W. 181; State v. Levitt, 278 Mo. 312, 213 S.W. 108; State v. Glon, 253 S.W. 364; State v. Kelleher, 201 Mo. 636. (b) The evidence tending to show that when witness Cotham made further accusations against the defendant, the defendant sat mute, was inadmissible since the evidence showed that at said time the defendant was under arrest. State v. Dengel. 248 S.W. 605; State v. Wedick, 292 S.W. 53; State v. Hogan, 252 S.W. 388; State v. Frame, 204 S.W. 10; State v. Goldfeder, 242 S.W. 404. The prosecutor went wholly outside of the direct examination of the defendant in his inquiry designed to show that when it was sought to take defendant's deposition at the city jail, the defendant refused to testify on the ground that his testimony might tend to incriminate him. See authorities under 1. The inquiry was not only outside of the direct examination, but was further objectionable and prejudicial, for the reason that the prosecutor sought to have the jury draw an inference of guilt from the refusal of the defendant to testify, in violation of defendant's rights. State v. Weher, 272 Mo. 475, 199 S.W. 148; Masterson v. Transit Co., 204 Mo. 507; Garrett v. Transit Co., 219 Mo. 65. (3) It was prejudicial error for the prosecutor, with the sanction of the court, to ask defendant on cross-examination, over defendant's objection and exception, this question: "Are you willing to go into this entire transaction or are there some matters you would rather not discuss?" R.S. 1929, sec. 3692; State v. Lasson, 292 Mo. 155, 238 S.W. 104; State v. Webb, 254 Mo. 414, 162 S.W. 622; Libby, McNeil & Libby v. Cook, 123 Ill. App. 579. (4) It was reversible error for the prosecutor, with the sanction of the court and over defendant's objection and exception and request for a reprimand of counsel and a declaration of a mistrial, to use the following language in his closing argument: "I ask you to find this defendant guilty, and return the extreme penalty Death — and I say to you, with the knowledge that I have, that when you return that verdict in this court, you may place that responsibility on my soul, and on my body, and I will carry it and gladly accept that responsibility, and relieve your shoulders of it." State v. Webb, 254 Mo. 414, 162 S.W. 622; State v. Spivey, 191 Mo. 112; State v. Barker, 249 S.W. 75; State v. Mathis, 323 Mo. 37, 18 S.W. (2d) 10; State v. Ferguson, 152 Mo. 92, 53 S.W. 428; State v. Burns, 237 S.W. 506; State v. Cole, 299 Mo. 372, 252 S.W. 701; State v. Goodwin, 217 S.W. 266; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Stegner, 276 Mo. 427, 207 S.W. 826; State v. Hess, 240 Mo. 147, 144 S.W. 491; State v. Ulrich, 110 Mo. 366; State v. Phillips, 233 Mo. 306; State v. Taylor, 51 S.W. (2d) 1003; State v. Guerrieger, 265 Mo. 408, 178 S.W. 68; State v. Davis, 190 S.W. 297; State v. Gentry, 320 Mo. 389, 8 S.W. (2d) 28; State v. Clark, 114 Minn. 342; Commonwealth v. Bubus, 197 Pa. 542; Howard v. Commonwealth, 110 Ky. 356; State v. Iverson, 136 La. Ann. 982; State v. Andersen, 26 N.D. 294; State v. Nyhees, 27 L.R.A. 487, 144 N.W. 71; People v. King, 276 Ill. 138, 114 N.E. 608; Broznack v. State, 109 Ga. 514, 35 S.E. 123; People v. Quick, 58 Mich. 321, 25 N.W. 302; People v. Dane, 59 Mich. 550, 26 N.W. 781; Moore v. State, 10 Ga. App. 805, 74 S.E. 318; Nixon v. State, 14 Ga. App. 261, 80 S.E. 519; August v. United States, 257 Fed. 388; McMutt v. United States, 267 Fed. 670; Wild v. United States, 291 Fed. 334; Duke v. St. Louis-S.F. Railroad Co., 172 Fed. 692; Beck v. United States, 33 Fed. (2d) 114 (5) The court committed reversible error in failing properly to reprimand counsel for his charge outside of and unwarranted by the record that the trial had been delayed for a year at defendant's instance. State v. Woolard, 111 Mo. 248; State v. Ferguson, 152 Mo. 92; State v. Eudaly, 188 S.W. 110; State v. Wigger, 196 Mo. 90.

Stratton Shartel, Attorney-General, Edward G. Robison, Assistant Attorney-General, and John L. Sullivan for respondent.

(1) The hotel was a dwelling within the meaning of the law under Sec. 4037, R.S. 1929, and the indictment contains all of the essential elements to charge murder in the first degree in the commission of arson. The sufficiency of this indictment was passed on by this court in the Meadows case, infra. Sec. 3982, R.S. 1929; Kelley's Criminal Law (4 Ed.) p. 448; State v. Foster, 136 Mo. 654; State v. Schmide, 136 Mo. 651; State v. Hopkirk, 84 Mo. 287; State v. Bobbitt, 215 Mo. 33; State v. Meadows, 55 S.W. (2d) 959; State v. Carroll and Jocoy, 288 Mo. 407. (2) It is a well-settled principle of law that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more jointly is the act of all and each of them so acting. Or, in other words, that when two or more persons enter into a conspiracy to commit a crime and in pursuance thereof one or more of said parties commit the crime intended to be committed, then all of said parties so entering into said conspiracy are guilty of the crime so committed. State v. Lyle, 296 Mo. 436; State v. Smith, 313 Mo. 82; State v. Friedman, 313 Mo. 95; State v. Lackmann, 12 S.W. (2d) 425. With this principle in mind, we approach the determination of the sufficiency of the evidence to support the verdict rendered in this cause. In our opinion, the evidence shows a criminal act, to-wit: arson, resulting in the loss of a human life, and the defendant's criminal agency in the production of the act. This made a submissible case under the charge. State v. Dickson, 78 Mo. 446; State v. Jones, 106 Mo. 312; State v. Cox, 264 Mo. 412; State v. Freyer, 48 S.W. (2d) 898; State v. Glover, 50 S.W. (2d) 1049; State v. Santino, 186 S.W. 977. (3) The application for change of venue is drawn under the provisions of Sections 3628 and 3630, R.S. 1929. These sections provide the scheme for the determination as to whether or not a defendant is entitled to a change of venue, providing among other things that the proof of the allegations contained in the application shall be proven, to the satisfaction of the court, by legal and competent evidence. State v. Barrington, 198 Mo. 85; State v. Rasco, 239 Mo. 549; State v. Messino, 325 Mo. 761.

FITZSIMMONS, C.

The grand jury of the city of St. Louis on April 4, 1930, returned an indictment against appellant, Ralph Pierson, and Lewis E. Balson, Andrew B. Meadows and Robert II. Cotham, jointly charging them with murder in the first degree committed on December 5, 1927, in the perpetration of an arson. The specifications of the charge were that the four accused men set fire to the Buckingham Hotel Annex. No. 4954 West Pine Boulevard, St. Louis, and that as a result May Frazer, a guest in the Annex, was burned to death. At the request of appellant, Pierson, he was granted a severance. Upon trial he was found guilty and his punishment was fixed at death. The motion for a new trial having been overruled, appellant was sentenced in accordance with the verdict. From this judgment he appealed to this court.

The testimony at the hearing upon appellant's application for a change of venue will be reviewed in the examination of the assignment of error predicated upon the refusal of the trial court to grant the change. The facts in this case pertinent to the fire, its origin and death of Miss Frazer, from burns and suffocation, in her room in the hotel are substantially the same as in State v. Meadows (Mo.), 51 S.W. (2d) 1033, decided by this court June 10, 1932. The defendant there was tried under the same indictment for the death of Miss Frazer, as was appellant here. Miss Frazer was but one of several persons who lost their lives in the Buckingham Hotel fire. The gruesome narrative will be limited to the requirements of the questions raised by this appeal.

At the time of the fire in December, 1927, the Buckingham Realty Company, a corporation, owned the Buckingham Hotel and the Buckingham Hotel Annex at Kingshighway and West Pine Boulevards in St. Louis. The hotel proper was at the northeast corner and the annex at the southeast corner of these streets....