State v. Rudman

• Decision Date: 25 March 1931
• Docket Number: 30917
• Citation: 37 S.W.2d 409,327 Mo. 260
• Parties: The State v. Nathan Rudman, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 409

327 Mo. 260

The State v. Nathan Rudman, Appellant

No. 30917

Supreme Court of Missouri

March 25, 1931

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

Affirmed.

Abbott Fauntleroy, Cullen & Edwards for appellant.

(1) "The aforesaid building," which the defendant is charged with having set fire to, is, by the indictment alleged to be "adjoined to an inhabited dwelling house then and there occupied by said William Gruenekemeier." Clearly the "aforesaid building," which said defendant is charged with having set fire to, was a different building than that which was "occupied by one William F. Gruenekemeier and wife." (2) The indictment charges arson in the second degree. It does not charge arson in the first degree, nor does the indictment set up facts which would make it arson in the first degree. Arson in the first degree is defined by Sec. 3282, R. S. 1919. Arson in the second degree is defined by Sec. 3284, R. S. 1919. The building which burned was a two-story brick building, the ground floor of which was a shoe store, which was occupied by defendant, and the upstairs, second story part of the building, was occupied by the Gruenekemeiers. This, under the decisions, makes that building one building, and the "fact that the lower part was devoted to the shoe business, and only the upper portion was occupied as a dwelling house," did not make it two buildings. State v. Jones, 171 Mo. 405; Commonwealth v. Lee, 18 N.E. 586. (3) The evidence shows that the building, the lower floor of which was burned, was a part of the same building where the Gruenekemeiers lived and was not, therefore, a "building" which "adjoined an inhabited dwelling house then and there occupied by said" Gruenekemeier and wife, and, therefore, at the close of all the evidence in the case, the instruction should have been given, which defendant requested, wherein the defendant asked the court to instruct the jury to find the defendant not guilty for the reason that the evidence was not sufficient to support the allegations of the indictment, and for the reason that the building which the evidence showed was on fire was not a separate building such as is described in the indictment and was not a building which adjoined the building which was inhabited by the said Gruenekemeiers, but was the same building. (4) The fact that the defendant had a motive and the opportunity to commit the crime of arson, with which he was charged, is not sufficient testimony upon which to find a verdict of guilty. State v. Ruckman, 253 Mo. 499. (5) The defendant had the right to have the jury instructed specifically upon the point that motive and opportunity on the part of Rudman was not, alone, sufficient to convict. State v. Ruckman, 253 Mo. 487; Commonwealth v. Johnson, 276 S.W. 125. (6) The court erred in not giving Instruction No. 2 asked for by defendant, which in effect, told the jury that, even though they might believe from the evidence that there were suspicious circumstances connecting defendant with the burning of the building, yet they could not find him guilty unless they found from the testimony, beyond a reasonable doubt, that he did, in fact, cause the fire in question. State v. Ruckman, 253 Mo. 487; Commonwealth v. Johnson, 276 S.W. 125; Campbell v. Railway Co., 175 Mo. 165; State v. Picnick, 90 P. 646. (7) The court committed error in refusing to give Instruction No. 4 asked by defendant, which was to the effect that, if any of the jurors were not convinced, beyond reasonable doubt, as to the guilt of the defendant, then they should not give way in their opinion by way of compromise. People v. Dole, 122 Cal. 486, 55 P. 581; Cassen v. State, 75 Ind. 146. (8) There is not sufficient evidence to prove defendant guilty of arson. The evidence throws suspicion upon Mr. and Mrs. Gruenekemeier much more than it does upon defendant. It is inconceivable, under the evidence, that defendant would have made preparations and set fire to this building at the hour when it occurred, and, practically, in the presence of Mr. and Mrs. Gruenekemeier. State v. Ruckman, 253 Mo. 487; State v. Picnick, 90 P. 646.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The evidence, while circumstantial, was amply sufficient to take the case to the jury. This court will not disturb the judgment of the lower court where the evidence supporting the jury's verdict is substantial. State v. Myer, 259 Mo. 318; State v. Jackson, 267 S.W. (Mo. Sup.) 856; State v. Dworkin, 271 S.W. (Mo. Sup.) 478. (2) The fact that the second floor of the building which was used as a dwelling house and was not in a separate and distinct building from the one set on fire does not alter or change the crime to arson in the first degree. Defendant's theory seems to be that because the dwelling house was a part of the building set on fire it did not adjoin the building set on fire within the meaning of the statute, Section 3284. The second floor was used as a dwelling house. It, of course, adjoined the first floor of the building which was set on fire. Sec. 3283, R. S. 1919; State v. Huffman, 136 Mo. 64. There was no variance between the proof and the information. State v. Jones, 171 Mo. 405. The fact that a part of the building was being used as a dwelling by Mr. and Mrs. Gruenekemeier while the rest of it was used as a shoe store could not in any wise, as a matter of law, deprive the part used as a dwelling house of its character as a dwelling house under the statute. (3) The trial court quite properly refused to give each and every instruction requested by the appellant. For the most part, these instructions were comments on the evidence, abstract statements of the law embodying and mixing abstract theories of criminal and civil law together. In each instance of requested instruction, all matters therein contained, even enough incorrectly stated but if at all applicable to the law of the case, were correctly covered and given in the court's instructions. It is unnecessary in a criminal case to give a requested instruction where the substance of it is correctly embodied in an instruction given by the court.

OPINION

White, P. J.

The defendant was charged by information in the Circuit Court of the City of St. Louis with arson in the second degree, in that, April 25, 1928, he set fire to a certain storehouse at 4414 Natural Bridge Avenue in St. Louis, a building adjoining a dwelling house inhabited and occupied by one William Gruenekemeier and his wife Victoria Gruenekemeier. On a trial, October 29, 1929, defendant was found guilty as charged, his punishment assessed at three year's imprisonment in the penitentiary, and he appealed from the judgment following.

The Gruenekemeiers lived in the second story of a two-story building at 4414 Natural Bridge Road on the south side of the street, fronting north. The first floor and the fixtures they had leased to the defendant, who conducted a retail shoe business there. Under the lease the defendant used a part of the basement. About 7:30 o'clock in the evening of April 25, 1928, Mrs. Gruenekemeier, upstairs, heard peculiar noises coming from below as if something were being thrown against the clothes chute which extended from the second story down to the basement. A stairway led from the second story to the first. She went down stairs, found the shade of one window down and another up a little way. Looking through she saw a man she did not recognize standing in the store tying up bundles and throwing them against the clothes chute. She went back upstairs and informed her husband. Then she placed her ear to the speaking tube which extended from the kitchen down to the lower floor and she heard a conversation between the defendant and Julius Hyken, a boy who worked for defendant in the store. She heard Mr. Rudman say: "You can take a bigger box." And the other man who was here said: "The shoes in this box we can take them out and wrap them up." Further she heard one of the men say, "I have a case of rubbers in the back there." Then someone said, "Bring them here."

A part of this conversation was in German. A little later Mr Gruenekemeier went down to the first floor to investigate matters, and found only Rudman who was in the back of the store. Rudman came forward and "he was all sweated up and excited." Gruenekemeier asked him where his clerk was. Rudman answered that it was his clerk's day off. The stores in the neighborhood generally closed at 6:30. Gruenekemeier thought it was unusual that Rudman was in the store at that time of night. They had some conversation about the rent. Gruenekemeier then went out with Rudman and they walked to the corner and came back. Rudman went into the store and Gruenekemeier took position across the street. As Gruenekemeier came out of the store he saw two cartons near the door tied together. When he came back from down the street he got behind a telegraph pole and watched. It was then about twenty minutes to nine. Mr. and Mrs. Gruenekemeier testified that soon they saw a stout man and the defendant come out of the store and go to the defendant's automobile. The other man took a large parcel of bluish white paper from the machine and then they walked west down the street. Defendant got in his machine and went east. Mr. Gruenekemeier came across the street and went upstairs. About a quarter of nine all the lights went out, and about five minutes after the defendant drove away and after Gruenekemeier went upstairs he and his wife heard four loud explosions in the lower part of the building, which made vibrations throughout the house. All the windows on the first floor were blown out; flame and smoke immediately commenced coming upstairs in the rear of...