State v. Ritter
| Decision Date | 08 June 1921 |
| Citation | 231 S.W. 606,288 Mo. 381 |
| Parties | THE STATE v. JOSEPH RITTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from the St. Louis City Circuit Court. -- Hon. John W Calhoun, Judge.
Affirmed.
Carl M Dubinsky and Abbott, Fauntleroy, Cullen, & Edwards for appellant.
(1) The court erred in excluding evidence as to the beliefs, hopes and expectations of the accomplice. State v. Kent, 27 L.R.A. 695; Stevens v. People, 215 Ill. 593. (2) In the progress of the trial, over the objections of the defendant, the State was permitted to prove that other fires had occurred in St. Louis, and permitted to prove that the defendant had made some statements to the witness, Bertha Trader, about such other fires, but there was no proof in the case that the other fires mentioned were of incendiary origin or of a similar nature to the fire which was the subject-matter of this prosecution and the defendant therefore insists that the admission of such testimony was improper and constituted reversible error. Raymond v Commonwealth, 96 S.W. 516; People v. Santageta, 114 N.Y.S. 324. (3) When the co-defendant Fendelman was on the stand as a witness, the defendant offered to prove that the witness Murphy, who had testified as a witness for the State in conjunction with Newmark, the private detective employed by the insurance companies, made a violent and wicked attack upon the witness because he refused to implicate the defendant in the crime wherewith the defendant stands charged. Bomont v. State, 25 Tex.App. 173. (4) Particular independent facts, though bearing on the question of veracity, cannot be put in evidence for the purpose of sustaining or impeaching a witness. State v. Rogers, 108 Mo. 202; State v. Gesell 124 Mo. 531; Com. v. Churchill, 11 Met. 538, 45 Am. Dec. 229; Com. v. Kennon, 130 Mass. 39; Johnson v. People, 3 Hill, 178, 38 Am. Dec. 624; Crichton v. People, 6 Park. Crim. 363; Uhl v. Com., 6 Gratt. 706; Moore v. State, 68 Ala. 360; Craig v. State, 5 Ohio St. 605; Ketchingman v. State, 6 Wis. 426; Stape v. People, 85 N.Y. 390; Webb v. State, 29 Ohio St. 351; People v. O'Brien, 96 Cal. 171; People v. Ryan, 8 N.Y.S. 241; State v. Barret, 40 Minn. 65; People v. Wolcott, 51 Mich. 612; Randall v. State, 132 Ind. 542; McArthur v. State, 59 Ark. 431; People v. Monreal, 7 Cal.App. 37; Seaborn v. Com. 25 Ky. L. Rep. 2203; State v Arnold, 146 N.C. 602; Conrad v. State, 132 Ind. 259. (5) The defendant and one Fendelman were indicted jointly. A severance was taken. The entire theory of the case was that Fendelman and Ritter were in a conspiracy and that Fendelman was the active party who set fire to the building. On cross-examination questions were asked him reflecting upon his standing, and later on the defendant offered to show that the said Fendelman was a man of good reputation and the court excluded such testimony. In so ruling the court erred. Whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence to support his good character. Walker v. Phoenix Ins. Co., 62 Mo.App. 209; Cox v. Polk, 139 Mo.App. 260; Berryman v. Cox, 73 Mo.App. 73. The whole line of cases holds that whenever a witness, plaintiff or defendant or anybody else, is attacked as a witness in any manner, he may offer evidence of good character to sustain his testimony. Under these circumstances testimony of the character is admissible. State v. Christopher, 134 Mo.App. 6; Miller v. St. Louis R. Co., 5 Mo.App. 471; Alkire Grocer Co. v. Tagart, 78 Mo.App. 166; Browning v. Ry., 118 Mo.App. 449. And the same rule applies where the witness is a party to the suit, since the impeaching evidence goes to his credibility as a witness and not as a party. Cox v. Polk, 139 Mo.App. 260; State v. Speritus, 191 Mo. 24.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The second count in the indictment is sufficient and properly charges the offense of arson in the third degree. Sec. 3288, R. S. 1919 (Sec. 4511, R. S. 1909); State v. Tucker, 84 Mo. 24; State v. Bersch, 276 Mo. 411. (2) The pivotal question on trial was as to the intent and consideration of the witness (accomplice), Bertha Trader, in making her statement to the circuit attorney and the police officers; and in making herself a witness for the State. Her testimony went far towards making out a case of arson against defendant on trial. In the cross-examination of this witness great latitude should have been allowed in ascertaining whether her testimony against the appellant was not given with the belief, hope and expectation of escaping punishment; or, of being more leniently dealt with. The appellant had the right to have such facts laid before the jury on the question of the accomplice's credibility. The court ruled out the following questions, and in so ruling we think the court committed reversible error. State v. Riney, 137 Mo. 104; State v. Shelton, 223 Mo. 135; State v. Kent, 4 N.D. 598; Allen v. State, 10 Ohio St. 305; Tullies v. State, 39 Ohio St. 200; People v. State, 215 Ill. 593; People v. Langtree, 64 Cal. 259; People v. Moore N.Y.App.Div. 56, 181 N.Y. 524. (3) To prove that other fires were caused by the same parties is competent to show intent. State v. Bersch, 276 Mo. 415; State v. Young, 266 Mo. 734; State v. Cox, 264 Mo. 413; State v. Donaldson, 243 Mo. 475; State v. Meyers, 82 Mo. 563. Competent also to show incendiary origin of the crime. State v. Cox, 264 Mo. 413; State v. Spray, 174 Mo. 569; State v. Jones, 171 Mo. 407; State v. Balch, 136 Mo. 109; State v. Meyers, 82 Mo. 564. (4) The court did not commit error in excluding testimony tending to show bias of State's witnesses. (a) Fendleman was not a party to this action. State v. Montgomery, 28 Mo. 595. (b) In showing hostility a party is not entitled to inquire into the cause or particulars of the difficulty. Bertoli v. Smith, 69 Vt. 427; Wyeth v. Walzl, 43 Md. 432. (c) It is immaterial whether the feeling is or is not justifiable. Seymour v. Bruscke, 144 Mich. 252; Coats v. Lynch, 152 Mo. 167. (d) Where the effect, if not the intention, of evidence offered to show bias is to divert the attention of the jury by a collateral and subordinate issue, the admission of the evidence is largely in the discretion of the trial court. Com. v. Ezell, 212 Pa. 296; State v. May, 172 Mo. 646. (e) Where the interest or bias of a witness clearly appears, the court may properly refuse to allow the inquiry to go any further. State v. May, 172 Mo. 646; State v. McLaughlin, 149 Mo. 32. (5) By admitting testimony of specific acts to sustain reputation of witness, Bertha Trader, the court did not commit error. Self-invited error cannot be made the basis of complaint. Rourke v. Railroad, 221 Mo. 62; Wiggington v. Rule, 275 Mo. 449; Pinson v. Jones, 221 S.W. 86. (6) Exclusion of testimony to show good reputation of witness Fendelman was not error. (a) Evidence cannot be admitted to support reputation unless attacked. State v. Reed, 250 Mo. 379; State v. Fogg, 206 Mo. 716; State v. Grant, 79 Mo. 133; State v. Thomas, 78 Mo. 343. (b) Reputation presumed to be good without proof. State v. Reed, 250 Mo. 379.
The appellant was convicted in the Circuit Court of the City of St. Louis, of arson, in the third degree, under Section 3288, Revised Statutes 1919, and his punishment assessed at fifteen years' imprisonment in the penitentiary, which was reduced by the trial court to five years. From this judgment he appeals.
The offense for which the appellant was convicted was the burning of certain household goods in the possession of one Bertha Trader, located in an apartment occupied by her on Delmar Avenue, in the City of St. Louis, with the intent to injure and defraud the insurers of said property. Bertha Trader testified for the State. Her testimony was to the effect that she, the appellant, and one Fendelman entered into a conspiracy to burn the goods in the apartment in which she resided for the purpose of securing the insurance on same; that the appellant brought the greater part of the goods and placed them in the building for the purpose; that he introduced Fendelman to her as the man who would start the fire and stated that his name was Jones. The appellant testifying in his own behalf denied any connection with the matter, except as an insurance adjuster. The property was insured in the sum of eight hundred dollars in one company and one thousand dollars in another. Upon an adjustment of the loss the two insurance companies paid the sum of eight hundred dollars; of this amount Bertha Trader received two hundred and fifty dollars, and the balance was retained by the appellant. The latter was at the time a member of the firm of Bersch, McMahan & Ritter, whose ostensible business was that of a fire insurance adjuster, engaged in business under the name of the Independent Adjustment Company, and as such it represented Bertha Trader in the settlement of her claims against the insurance companies. The burning of the goods as testified by Bertha Trader was effected by the starting of a fire in a wardrobe in one of the rooms of the apartment. Fendelman, who, under the conspiracy, was to start the fire was seen in the immediate vicinity of the building at the time.
There is much testimony as to the particulars of the fire, the adjustment of the claim by Ritter for Mrs. Trader, and his retention of the money when the losses were paid, not necessary to be set forth in detail.
Fendelman was indicted jointly with the appellant. A severance was granted, resulting in the conviction as heretofore stated.
I. Appellant contends that the indictment is insufficient, in that it does not allege the name of the owner of the building...
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