The State v. Shields

Decision Date22 December 1922
Citation246 S.W. 932,296 Mo. 389
PartiesTHE STATE v. L. B. SHIELDS, Appellant
CourtMissouri Supreme Court

Appeal from Randolph Circuit Court. -- Hon. A. W. Walker, Judge.

Reversed and remanded (Higbee, P. J., and Walker and Blair JJ., concurring in the result only).

Hunter & Chamier and Jerry M. Jeffries for appellant.

(1) The information charges two crimes in each count and is bad for that reason. It is also bad because it does not charge the act was done with felonious intent. State v. Blakey, 184 Mo. 187; State v. Hoffman, 136 Mo. 58. (2) Where a junior has falsified in his voir dire, and it is shown that he was prejudiced against defendant, a new trial ought to be granted. State v. Ross, 29 Mo. 32; State v Taylor, 64 Mo. 358; State v. Gonce, 87 Mo. 627. (3) Admissions of a co-conspirator, like the act of an agent are admissible in evidence only when made while pursuing the object of the conspiracy. The admissions of Hines to the witness Hopson, made out of the presence of defendant, was incompetent and prejudicial evidence. 1 Greenleaf on Evidence (14 Ed.) sec. 113-114; State v. Farrell, 246 Mo. 330; Poe v. Stockton, 39 Mo.App. 558; State v. Daubrt, 42 Mo. 239; State v. Walker, 98 Mo. 95; State v. Little, 228 Mo. 273; State v. Ferrell, 246 Mo. 330; State v. Casto, 231 Mo. 398; State v. Gow, 235 Mo. 307; State v. Bobbitt, 228 Mo. 252. (4) The court erroneously rejected the testimony of the witness Haley, the master builder. The cost of rebuilding was material evidence, and tended to prove that the property was not overinsured. Sires v. Clark, 132 Mo.App. 537; Shepard v. People, 19 N.Y. 545; Curtain Clark Hdw. Co. v. Churchill, 126 Mo.App. 469. (5) The cross examination of defendant was improper -- first, because he was cross examined on matters not touched on in his direct examination, and second, he was asked about immaterial matters, and then other witnesses introduced on the same subject in an attempt to impeach him. State v. Sharp, 233 Mo. 269; State v. Mitchell, 229 Mo. 683; State v. Wilson, 223 Mo. 173; State v. Lovitt, 243 Mo. 510. (6) The value of the property, be it much or little, does not afford any proof of defendant's guilt, with the possible exception that it might tend to show motive or no motive. No instruction on motive was given. Shepard v. People, 19 N.Y. 545. (7) Instruction 2 is grossly bad. The instruction told the jury: First, if they found the accomplice's testimony corroborated they need not consider it with caution -- the caution only applied in the event of there being no corroboration. It did not tell the jury to "receive" the accomplice's testimony with caution. Second, this instruction also assumed there was a conversation between the witness Hines and Hopson. Third, the instruction also called the jury's attention to Hopson's testimony, pointed it out and magnified it. State v. Castor, 93 Mo. 248; State v. Sivill, 105 Mo. 534; State v. Duncan, 64 Mo. 265; State v. Bobbitt, 215 Mo. 10; State v. Rutherford, 152 Mo. 133. (8) The court did not fully define reasonable doubt. It gave the State's instruction, the one usually given for the State, but refused the one offered by defendant. The two together would have properly instructed the jury on that question. The one given alone did not so instruct properly. State v. Clark, 174 Mo. 361; State v. Neizinger, 220 Mo. 49; State v. Owens, 79 Mo. 631; Laws 1895, p. 161. (9) The court erroneously refused Instruction D offered by defendant on the question of motive. All the evidence as to value of the property destroyed was introduced on the question of motive. It could be introduced for no other purpose. By refusing this instruction the jury were uninstructed on one part of the case. State v. Foley, 144 Mo. 600, 620, 622; State v. Evans, 158 Mo. 609. (10) The only testimony against defendant is the evidence of Hines, the so-called accomplice. He was shown to be a felon, immoral, unworthy of belief, dishonorable to his country, impeached himself and was impeached by the other evidence in the case. This evidence will not support a verdict. State v. Moroney, 196 Mo. 43. (11) After the trial the prosecuting witness, Hines, upon whom the State relied solely for conviction, made statements that he had testified falsely, also made affidavit that he had testified falsely in the trial. This affidavit was filed with the motion for new trial, also affidavit as to the statements he had made, all in support of the motion for a new trial. A new trial should be granted for this reason, if for no other. It is true said prosecuting witness made another affidavit, filed by the State as a counter affidavit. In that affidavit Hines admitted the statement, also admitted making the affidavit. The new evidence ought not to be covered with counter affidavits. State v. Moberly, 121 Mo. 604, 614; State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 315; State v. Curtis, 77 Mo. 268; State v. Speritus, 191 Mo. 41.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.

(1) The information is sufficient. Sec. 3288, R.S. 1919; State v. Bersch, 207 S.W. 812; State v. Tucker, 84 Mo. 24. (2) Where there is substantial evidence supporting the verdict of the jury, this court will not interfere. State v. Fields, 234 Mo. 627; State v. Sharp, 233 Mo. 298; State v. Cannon, 232 Mo. 215. Where the evidence is conflicting, it is for the jury to weigh and give such credit or reject the same as they see fit. State v. McKenzie, 177 Mo. 717; State v. Williams, 186 Mo. 135. (3) The question as to whether a juror had prejudged the case is one of fact to be determined by the trial judge on sworn statements. The affidavit offered by appellant was unequivocally denied by Juror Dowdy in his affidavit, and the court committed no error in finding no misconduct was established. State v. Gonce, 87 Mo. 630; State v. Howell, 117 Mo. 342. (4) The failure of the court to give an instruction that defendant is a competent witness in his own behalf, which appellant complains of, would have been error. State v. Finkelstein, 269 Mo. 618; State v. Rose, 271 Mo. 16. (5) Where a conspiracy is established the acts and declarations of one, in the prosecution of the commission of the common plot or undertaking, is the act or declaration of all. A conspiracy to burn appellant's store was shown between him and George Hines, hence appellant's assignment of error has no merit. State v. Walker, 98 Mo. 103; State v. Roberts, 201 Mo. 727. (6) Only one offense was submitted by the two counts in the information, and the court's refusal to require the State to elect was not error, and the verdict was good, although general. State v. Martin, 230 Mo. 20; State v. Noland, 111 Mo. 498; State v. Schmidt, 137 Mo. 270. (7) It rests in the sound discretion of the court whether a new trial should be granted on the ground of perjury. The testimony of Hines, accomplice, was alleged to be false in an affidavit executed by Hines, under promise of securing Hines's release from punishment, and by force and duress, as alleged in a counter affidavit subsequently executed by him. This presented an issue of fact for the trial court, and only in a case of the grossest abuse of this discretion will this court interfere. Hurlbut v. Jenkins, 22 Mo.App. 575; Jaccard v. Davis, 43 Mo. 536; Ridge v. Johnson, 129 Mo. 545. Recanting testimony is exceedingly unreliable and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. State v. Blanchard, 88 Minn. 82; Lucia v. State, 77 Vt. 279. Especially is this true where the recantation involves a confession of perjury. Tally v. State, 18 Ariz. 309; People v. Shilitano, 218 N.Y. 161.

WHITE, C. Railey, C., concurs; Reeves, C., absent. David E. Blair, J., concurs in separate opinion; Walker & Higbee, JJ., concur in result.

OPINION

WHITE, C. --

This appeal is from a judgment in the Circuit Court of Randolph County upon conviction of defendant of arson in the second degree, under Section 3288, Revised Statutes 1919.

The evidence for the State showed that the defendant was in the real estate business in Moberly, and lived there; that he owned a double-store building, fixtures, and stock in Clark, a small town on the C. & A. and Wabash railroads, in the southeast part of Randolph County. He carried twelve thousand dollars insurance on the property with the Queen Insurance Company of New York. On March 28, 1920, the store building and stock were consumed by fire, which, it is alleged by the State, defendant caused for the purpose of defrauding the insurance company.

The case for the State was made out chiefly on the testimony of one George M. Hines, a young man eighteen years old, who resided in Moberly. Hines testified that the defendant engaged him to go to Clark and set fire to the store, for which he agreed to give Hines fifty dollars. Defendant told Hines that he had an old stock of goods that he could not get rid of and he wanted to get the insurance. He visited the store in Clark about once a week.

In the afternoon of March 27th, Hines went by Wabash train from Moberly to Clark; he had borrowed a suit case, in which he carried an old suit of clothes to wear back. Under the defendant's directions he represented himself to be a salesman for the Cudahy Packing Company. When he arrived at the store the defendant concealed him on the second floor brought him food, a revolver, a pair of shoes, some cigars, a flashlight and an Ingersoll watch, and instructed him to wait until the next morning at two o'clock, and then to pour kerosene over the floor of the store and set fire to it. Three two-gallon cans of kerosene were on the upstairs balcony for his use. The defendant then left Clark on...

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