State v. Wigger

• Decision Date: 22 May 1906
• Parties: STATE v. WIGGER.
• Court: Missouri Supreme Court

93 S.W. 390

196 Mo. 90

STATE v. WIGGER.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. CRIMINAL LAW — DELAY IN TRIAL—DISCHARGE OF DEFENDANT.

Under Rev. St. 1899, § 2642, providing that if any person indicted, shall not be brought to trial before the end of the third term of court which shall be held after the indictment found, he shall be entitled to be discharged so far as relates to that offense unless the delay happened on his application or is occasioned by the want of time to try the cause at the third term, where the original information was nolled and a new one filed, the time which elapsed under the original indictment must be excluded in determining the prisoner's right to discharge.

2. SAME—EVIDENCE—ACCOMPLICES.

In a prosecution for arson, testimony of a witness that defendant had given him a sum of money for setting a building on fire, and was present when he did it, was sufficient to support a conviction, though uncorroborated.

3. WITNESSES—IMPEACHMENT — CRIMINAL OFFENSE.

In a criminal prosecution, it was not proper to permit the prosecuting attorney to ask witnesses whether they had not been charged with crime and whether information or indictments had not been entered against them.

4. CRIMINAL LAW—REMARKS OF COUNSEL.

In a criminal prosecution, remarks by the prosecuting attorney as to a confession by an accomplice of the defendant in the attorney's office, which had not been referred to in the evidence, was erroneous, though the accomplice had testified as to his participation in the act with which defendant was charged.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

George F. Wigger was convicted of arson in the third degree, and appeals. Reversed.

W. S. Anthony and Jasper N. Burks, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

On the 31st day of May, 1904, the prosecuting attorney of St. Francois county filed an information charging the defendant with the crime of arson in the third degree for the burning of a saloon, the property of Z. B. Jennings, on the 20th of January, 1903. A change of venue was taken from the regular judge of said circuit, and Hon. E. M. Dearing, judge of the Twenty-First judicial circuit, was called as special judge to try the case. The defendant was duly arraigned, entered his plea of not guilty, was tried and convicted, and his punishment assessed at a term of five years in the penitentiary. From the sentence imposed he has appealed to this court.

1. The first question arising on this appeal is the propriety of the ruling of the circuit court in denying the defendant's motion for his discharge on the ground that the state had failed to bring him to a trial at the end of the third term of the court after the information was filed. On the hearing of this motion, it appeared that another information charging the defendant with this same offense had been filed in the same court on the 30th day of July, 1903; that the defendant was admitted to bail on said first information, and at the August term, 1903, of said court said cause was continued on the application of the state, and was again continued on the application of the state at the November term, 1093, of said court. At the May term, 1904, the prosecuting attorney entered a nolle prosequi to said first information, and on the same day filed another information charging the defendant with the same offense, the latter being the information in this cause upon which the defendant was tried and convicted. The record does not show on whose application the case was continued on the new information further than that the defendant entered into a new recognizance for his appearance at the August term, 1904, of said court. At the August term, 1904, the case was continued on the application of the state until the 29th of August, 1904, and on the last-named date it was again continued for want of time to try the same until the next term of court. At the November term of said court, 1904, the defendant filed his motion for discharge which was as already said, overruled by the court, and exceptions properly saved. The contention of the defendant is that the two informations should be treated as one and that the entering of the nolle and the filing of the new information did not affect the right of the defendant to his discharge; that in contemplation of law, it was one and the same case, and the defendant was entitled to his discharge under sections 2642, 2643, 2644, Rev. St. 1899. Section 2642, Rev. St. 1899, provides that: "If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term." This section and its kindred sections have been in force in this state for a great number of years. It came before this court for construction as early as Robinson v. State, 12 Mo. 595, 596, and it is held in that case that the term at which the indictment is found is not to be included in the estimate of the terms at which the defendant is entitled to be tried. State v. Haines, 160 Mo. 556, 61 S. W. 621. In Fanning v. State, 14 Mo. 387, the point was made as now is made, by the defendant in that case, but it was held by this court that when the first indictment was nol. pros'd, it was no longer in force, and the new indictment alone and the time it was pending was to be considered. It is therefore clear under the decisions of this court in the construction of sections 2641, 2642, 2643, that terms of court which lapse under a prior indictment must be excluded. For this reason, the court properly overruled the motion for the discharge of the defendant.

2. It is earnestly insisted by counsel for the defendant, that the evidence was insufficient to sustain a judgment of conviction, and that the court erred in refusing to direct the jury to acquit the defendant. Without incumbering this opinion with a detailed statement of all the testimony, it must suffice for the purpose of this objection to state that the evidence on behalf of the state tended to prove the following facts: In the month of January, 1903, Z. B. Jennings was living at a small place called Esther, in St. Francois county, and was there engaged in the saloon business. The defendant, George F. Wigger, and his son, were running a saloon at the same place, about 300 or 400 yards to the north of the Jennings place of business. On the morning of the 20th of January, 1903, between 3 and 4 o'clock, Jennings' saloon and its contents were destroyed by fire. Incendiarism was suspected, and a reward of $500 was offered by Jennings for information as to the guilty party. It was shown in evidence that the defendant had refused to sign Jennings' saloon petition, and that there was some ill feeling on the part of the defendant toward Jennings before the saloon was burned. Clarence Wigger, a nephew of the defendant, about 23 years of age, was living with the defendant at the time of the burning of the saloon. He appeared as a witness against the defendant at the trial, and testified that the defendant offered him $50 if he would burn Jennings' saloon; that he agreed to do it, and that defendant got the oil and rags for that purpose; that they together, on the night of the 20th of January, 1903, went to the Jennings' saloon, and that while defendant stood guard he, Clarence Wigger, set fire to the saloon. Sam Wigger, a distant relative of the defendant, testified that the defendant offered him $100 to burn Jennings' saloon about three or four months before the same was burned. Cy Lore, a witness for the state, testified that prior to the burning of the saloon, the defendant had offered him all the whisky he could drink if he would burn Jennings out. The defendant was a witness in his own behalf, and denied ever having made an offer to Clarence Wigger, Sam Wigger, or anybody else as an inducement to burn Jennings' saloon, and further denied generally his guilt of the crime charged. The defendant further testified that in the summer of 1903, Clarence Wigger, having been arrested on a charge of robbery, and having escaped from the officers, came to the defendant's place at night and requested defendant to go on his bond. That upon defendant's refusal, Clarence Wigger then asked the defendant for $100 to leave the country; that defendant refused to give him the money. There was evidence for the defendant tending to prove that after the burning of Jennings' saloon, and in the same year, one Alex Robinett wanted Jennings to pay him part of the reward money in advance to work up the evidence in the arson case, but Jennings refused to pay in advance, and Robinett then referred Jennings to Sam Doss. That thereafter Doss brought Clarence Wigger to the office of the prosecuting attorney of St. Francois county, and that Clarence Wigger then confessed to the burning of the Jennings' saloon, and also confessed to his guilt of several robberies committed the same year after the burning of the Jennings' property, and that thereupon Sam Doss received part of the reward offered by Jennings. It was shown that Clarence was jointly indicted with Robinett in Washington county for the crime of robbery, and that Clarence Wigger, Robinett, Doss, and Freeman were then under indictment in Bollinger county on the charge of robbery. That at the time of the trial of the defendant, Clarence Wigger was then out on bail on the charge in the last-mentioned indictment, and that the prosecuting attorney of said St. Francois county was surety on his bond. There was evidence tending to prove that the defendant was worth from $20,000 to $25,000, and at the time of the trial there were pending against...