The State v. Dworkin

• Citation: 271 S.W. 477,307 Mo. 487
• Decision Date: 09 April 1925
• Docket Number: 26011
• Parties: THE STATE v. SAM DWORKIN, Appellant
• Court: United States State Supreme Court of Missouri

271 S.W. 477

307 Mo. 487

THE STATE v. SAM DWORKIN, Appellant

No. 26011

Supreme Court of Missouri

April 9, 1925

Appeal from Buchanan Circuit Court; Hon. W. H. Utz, Judge.

Affirmed.

Sherman Stigall & Kranitz and Strop & Silverman for appellant.

(1) There was no evidence of guilt sufficient to authorize a submission of the case to the jury. State v Ruckman, 253 Mo. 487; State v. Morney, 196 Mo 43. (2) No direct evidence of the commission of the crime or of defendant's connection therewith was produced, and the evidence was wholly insufficient to support a conviction. In circumstantial evidence proof to sustain a conviction must show first the criminal act, the corpus delicti, second the defendant's guilty agency in its production. The evidence here fails to sustain either requirement named. State v. Crabtree, 170 Mo. 650; State v. Jones, 106 Mo. 312; State v. Dickson, 78 Mo. 477; State v. Bowen, 247 Mo. 584. (3) At most there is merely a strong suspicion that defendant committed the crime charged. Mere suspicion, however grave, or even strong probabilities of guilt, will not sustain a conviction. Cases supra; State v. Scott, 177 Mo. 665; State v. Goodson, 299 Mo. 330; State v. Rutledge, 262 S.W. 726; State v. Ferrell, 248 S.W. 979; State v. Jones, 106 Mo. 302. (4) Where there is no substantial evidence of guilt, or the evidence is so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality, it is the duty of this court to reverse the judgment. State v. Glahn, 97 Mo. 689; State v. Howell, 100 Mo. 659; State v. Goldstein, 225 S.W. 911; State v. Bass, 251 Mo. 126; State v. Casey, 247 S.W. 116; State v. Singleton, 294 Mo. 346, 360. (5) There is no sufficient evidence of insurance against fire upon the property described in the information. No evidence as to the contents of the policies was offered. Nothing more than the name of the company, the amount of the policy, and as to two companies only the class of insurance was shown. (6) Instruction five is erroneous. (a) It does not require the jury to find that the property charged to have been set fire to was insured against fire as required by the statute and as charged in the information. Sec. 3288, R. S. 1919. (b) It authorizes a conviction upon a finding that the property was insured by the Home Fire and Marine Insurance Company and the Detroit Fire and Marine Insurance Company. There is no evidence that these policies were policies of insurance against loss by fire and therefore as to these companies there is no evidence upon which to base the instruction. (c) By the words "and certain other companies mentioned in evidence" contained in the instruction, it authorized a conviction upon a finding that the property was insured by the Stuyvesant Insurance Company of New York, which company was not named in the information as one of the insurers, and therefore as to this company the instruction submits issues not tendered by the information and is broader than the charge. State v. Britt, 278 Mo. 512. (d) It assumes that the goods were the property of defendant and one I. Karpf, as alleged in the information, a fact required to be proved as alleged. Authorities under next point. (7) Instruction six is erroneous and prejudicial. It in effect tells the jury that unless defendant was at another place when the fire was started he should be convicted. It tells the jury that alibi is the only defense instead of one of the defenses. It tells the jury as a fact that the crime was committed although the evidence of the commission of a crime by any one is purely circumstantial. An instruction assuming controverted facts is erroneous. State v. Fox, 276 Mo. 378; State v. Mills, 272 Mo. 526; State v. Johnson, 234 S.W. 794; State v. Norman, 232 S.W. 452; State v. Collins, 237 S.W. 516. (8) Instruction seven is erroneous in that it also assumes that a crime was committed.

Jesse W. Barrett, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent.

(1) The evidence was overwhelming that the crime of arson had been committed by some one. This being true, appellant's complaint that the court's instructions assumed that a crime had been committed must go for naught. This proposition was not controverted. The only question was whether appellant was the perpetrator of the crime, and of this there was substantial, even ample, evidence to take the case to the jury and sustain the verdict. State v. Meyer, 259 Mo. 306, 318. (2) The use of the words, "property of the defendant and one I. Karpf," in Instruction 5, did not make the instruction erroneous for the reason the statute leveled against arson committed for the purpose of defrauding insurers does not require either the specific allegation or proof of ownership. The statute says: "whether the same shall be the property of such person or any other." Sec. 3288, R. S. 1919. (3) There was no error in giving Instruction 6. An identical instruction in all essential respects has received the express approval of this court. State v. Barton, 214 Mo. 316, 322.

White, J. Blair, J., concurs; Walker, P. J., not sitting.

OPINION

WHITE

In the Circuit Court of Buchanan County, on a trial by jury, the appellant was found guilty of arson in the third degree, under Section 3288, Revised Statutes 1919, and his punishment assessed at imprisonment in the penitentiary for two years.

The fire which the appellant is charged to have set occurred July 4, 1923. He was at that time engaged in the furniture business with one I. Karpf, under the name of "Economy Household & Furniture Company;" whether it was a partnership or a corporation the record does not clearly show. The furniture store so conducted was situated at 413-415 South 5th Street, in the city of St. Joseph -- a property owned by one Mrs. Cunningham. To the rear of this store and across the alley was a warehouse also owned by Mrs. Cunningham. In this warehouse the appellant and his partner kept a lot of miscellaneous furniture of doubtful value. The charge in the second count of the information, on which the case went to the jury, was that the defendant set fire to the goods and merchandise in the warehouse with intent to defraud certain named insurance companies who had written fire insurance on the said merchandise.

Since the defendant demurred to the evidence at the close of the plaintiff's case, and again at the close of all the evidence, and here assigns error to the action of the court in overruling said demurrer, it is necessary to set out at some length the facts tending to show the guilt of the defendant.

The fire was discovered between five and six o'clock the morning of July 4, 1923, by a neighbor, Stella Griggs, who lived adjacent to the warehouse. She testified that early in the night before, odors of gasoline were coming from the warehouse so strong she could hardly sleep. Discovering the fire next morning she gave the alarm, and a force from the fire department arrived a few minutes later. They found the fire inside. The warehouse was a brick building; the doors were locked, the windows protected by iron bars and barricaded from the inside by boxes and other obstructions which were packed against them. The firemen effected an entrance by breaking open the door. The fire was burning in a large barrel, partly filled with straw and emitting a smell of kerosene. It had scorched the rafters above the barrel and for some distance to one side; otherwise, no particular damage was done before it was extinguished. The warehouse was two stories. The firemen found nine large bottles, called by some witnesses jars and jugs, each of about five gallons capacity, and about half full of gasoline, placed at intervals down stairs in the warehouse, with a "tail" leading from where the fire was discovered, to the jars. The jars were uncorked, and what is termed a "necktie" of excelsior was tied around the neck of each of the bottles. Excelsior was strewn through the building and over the furniture. The bottles, in the condition in which they were, would be broken when the excelsior necktie should take fire. All of the bottles were found to be intact except two which were cracked. All of them were produced in evidence as exhibits. Photographs of the interior appear in the record, showing a miscellaneous lot of apparently cheap furniture, said by some of the witnesses to be household furniture which had been taken in the sale of new furniture. The straw in the barrel where the fire started was soaked with coal oil. The nearest that the fire had got to any one of the jugs was about eight feet.

It is not disputed that the evidence sufficiently established the corpus delicti. The defendant claims here only that the evidence is insufficient to submit to the jury the question of the defendant's agency in the crime. Some question arises as to when the fire started. It is claimed by the appellant that it was discovered immediately after it was started, otherwise more damage would have been done than appeared. However, it is not an unreasonable inference that some contrivance was used to delay the actual burning after the match was set, and that active combustion was delayed longer than was intended.

The Economy Household & Furniture Company carried $ 7,000 insurance on the property, although only $ 6,000 was carried in three companies mentioned in the information. As stated, the merchandise in the warehouse was mostly old furniture, much of it worthless, and witnesses for the State estimate its value at from $ 250 to $ 600. The appellant and his partner estimated its value at $ 2500 to $ 3,000. The defendant claimed that at the time it was invoiced, at the first of the year, it was worth as much as it was insured for.

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