State v. Ross
| Decision Date | 31 December 1924 |
| Docket Number | No. 25622.,25622. |
| Citation | 267 S.W. 853 |
| Parties | STATE v. ROSS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.
John Ross was convicted of arson in the second degree, and he appeals. Reversed and remanded.
Mayes & Gossom and Ward, Reeves & Oliver, all of Caruthersville, for appellant.
Jesse W. Barrett, Atty. Gen., and William L. Vandeventer, Sp. Asst. Atty. Gen., for the State.
By information filed in the circuit court of Pemiscot county, John Ross Lizzie Ross, his wife, Cotter Henderson, and Harry Henderson, were charged with arson in the second degree under section 3284, in that they set fire to a barn and storehouse of one Hollis Beard, which store was adjoining a certain inhabited dwelling house of said Beard.
The case was subsequently dismissed as to the Hendersons, and went to trial against John Ross and Lizzie Ross. Lizzie Ross was acquitted; John Ross was found guilty, and his punishment fixed at three years in the penitentiary. He appealed.
The evidence offered by the state tended to show that John Ross employed one Gabe Fry and one Henry Hopper to burn the store of Beard; that he furnished them with two sacks filled with grass, and gasoline with which to saturate the stuff, and instructed them how to set fire to the building. Fry and Hopper were quite young men, with criminal records. They went to the store after dark, July 13, 1922, and saturated the sacks of grass with gasoline, threw them under the building, and set fire to them. The fire was discovered and extinguished before any serious damage was done.
The case was made out for the state almost entirely by the evidence of Fry and Hopper, who testified to their employment by Ross; testified further that Mrs. Ross furnished the gasoline; and related previous conversations between them and Ross, and described how they proceeded to carry out his instructions. They said they were promised $300 by Ross to do the job, who also told them they might first rob the store. The next day Ross gave them $6 in money and some canned goods to eat, and told them to `stay away until the matter settled down. They were later captured at Hayti and confessed. At the time of the trial they were serving terms in the penitentiary, having pleaded guilty to the charge of arson.
I. The information charged that the building to which the fire was set was adjoining the inhabited dwelling of Hollis Beard. The evidence showed that it was within the same enclosure, but 40 feet away. The statute (section 3284, R. S. 1919) describes the crime as setting fire to a building "adjoining to or within the curtilage of an inhabited dwelling house." The evidence showed that it was not adjoining the dwelling house, but within the curtilage—a variance between the allegations of the information and the proof. Since the case is to be retried, the prosecutor may amend the information in that particular.
II. Evidence was offered and admitted by the state to show that, while Ross was negotiating with Fry and Hopper, he plied them with whisky as a re-enforcement to his persuasion. The defendant objected to this evidence. We, think the evidence was competent, for the purpose of showing how and in what manner he induced the boys to commit the crime.
The state then showed by Fry and Hopper that he afterwards gave them whisky. They were asked to state where the defendant kept the whisky hidden in a jug; they were also asked to describe the kind of house the defendant lived in, and his manner of life—evidently for the purpose of showing that he was engaged in the bootlegging business. This occurred after the fire, and tended to prove the defendant was guilty of another crime than the one for which he was on trial, and with which the crime charged had no connection.
All evidence respecting the defendant's possession of whisky, and tending to show the bootlegging business after the fire took place, was therefore incompetent, and erroneously received.
III. One Emerson Evans testified as a witness for the defense. The state's attorney, in cross-examination, asked him if he had not been arrested several times for bootlegging, and he stated over the objection of defendant that he had been arrested once. This evidence was entirely inadmissible, and error is confessed by the state in that...
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... ... State v. Kennedy, 177 Mo. 98; State v. Weaver, 165 Mo. 1; State v. Thompson, 238 S.W. 787; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32. (6) It was error to admit in evidence the statements, conversations and threats alleged to have been made by Fowler and Lasley against deceased without a preliminary showing that defendant was present at the time, or the existence of a conspiracy, or a common purpose on the part of all ... ...
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