State v. Tucker

• Decision Date: 31 October 1884
• Citation: 84 Mo. 23
• Parties: THE STATE v. TUCKER, Appellant.
• Court: Missouri Supreme Court

84 Mo. 23

THE STATE

v.TUCKER, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

B. G. Boone, Attorney General, and L. M. Lane, prosecuting attorney of Nodaway county, for the state.

The evidence is preserved in the bill of exceptions only on one point, viz.: the authority of the insurance company to do business in this state, and the presumption is that the evidence upon all other points was sufficient and the venue was proved. Foster v. Newlin, 4 Mo. 18; Barge Resort v. Brook, 10 Mo. 531; Douglass v. Stephens, 18 Mo. 362; State v. Dunn, 73 Mo. 586; State v. Brown, 75 Mo. 317.

W. W. Ramsay and Frank Griffin for appellant.

(1) The record fails to show that the venue was proved and the judgment should, therefore, be reversed. State v. Hartnett, 75 Mo. 251; State v. McGinnis, 74 Mo. 245; State v. Meyer, 64 Mo. 190; State v. Hughes, 71 Mo. 633. The bill of exceptions should show every jurisdictional fact. (2) The record fails to show proof of the corpus delicti. The body of the crime must be proven. Wharton's Crim. Ev., sec. 324, et seq.; State v. Mallon, 75 Mo. 357; State v. Meyers, 68 Mo. 266. (3) The trial court erred in admitting oral evidence of the power of the Glenn Falls Insurance Company to do business in this state. (4) The indictment is insufficient in not alleging that said insurance company was authorized to do business in Missouri.

SHERWOOD, J.

This cause has been re-argued. The indictment is based on section 1289, Revised Statutes, 1879, which makes it arson in the third degree for any person to “wilfully set fire to or burn * * * any goods, wares, or merchandise, or other chattels, which shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer,” etc.

I. The indictment is well enough, since it describes the offence in the language of the statute under which it is framed, and charges the defendant with the commission of the particular act which constitutes a violation of the general provisions of the section, under which the indictment is framed, and under this section, it is wholly immaterial whether the indictment charges that the insurer is authorized to do business in this state or not; such an averment would be outside of the constituent elements of the crime as set forth in the statute. The gravamen of the offence consists in the setting fire to or burning of certain property, with intent to defraud or prejudice the insurer. This point will be more fully developed in the next paragraph of this opinion.

II. Section 1915 of the statute allows the existence of a corporation, when drawn in question in a criminal cause, to be proved by “general reputation.” But it was not necessary to prove on the trial that the Glenn Falls Insurance Company was legally incorporated, or that the policy issued by that company was valid; upon this the guilt of the defendant did not depend, but upon the question whether he did, as charged in the indictment, wilfully set fire to and burn certain articles insured at the time against loss or damage by fire, with intent to defraud and prejudice the insurer. In public prosecutions for crime to which an insurance company is no party, where its existence is simply introduced collaterally as having suffered injury in consequence of the crime charged, there it suffices that the prosecutor show the organization de facto of, and an acting as such by, the insurance company and corporation. And it has been ruled that the mere procurement of a policy by the prisoner from the company, makes out a prima facie case against him on that point. U. S. v. Amedy, 11 Wheat. 392; People v. Hughes, 29 Cal. 257. It is the felonious intent to defraud the insurer, which is the salient characteristic of the crime here charged; the validity or...