State v. Hess

BROWN, J.

Defendant was convicted in the circuit court of St. Louis city of the crime of arson in the -third degree, as defined in section 4511, Revised Statutes 190-9, and appeals from a judgment fixing his punishment at imprisonment in jail for one year.

On August 25, 1909, defendant was conducting a drug store at Frieda and G-ravois in St. Louis city. The stock consisted of drugs, stationery, cigars and sundries, all of which, including the house where they were located, were owned by Lucy Hess, the wife of defendant. The stock of drugs, stationery, shelving and fixtures, was at the time of the alleged crime, insured in favor of said Lucy Hess, as follows: $1800 on stock of goods, and $700 on fixtures;.total insurance, $2500.

The indictment is in two counts. In the first, defendant is charged with burning the stock of drugs, stationery, cigars and shelving belonging to his wife; which charge, if true, would under section 4512, Revised Statutes 1909, amount to arson in the fourth degree, and-is punishable by imprisonment for not less than six months. In the second count of the indictment, he is charged with burning the same property with intent to defraud the companies in which the property was insured. This crime is denounced by section 4511, Revised Statutes 1909; as arson in the *154 third degree; and is punishable by imprisonment for not less than twelve months.

At the close of the evidence, the court of its own motion withdrew from the consideration of the jury the first count of the indictment, and the jury convicted defendant on the second count, and fixed his punishment at twelve months in jail.

Defendant, a physician, purchased a drug store in St. Louis several months before the alleged crime was committed, taking title thereto in the name of his wife. It seems that the store was not located to suit the defendant at the time of the purchase; at least, he moved the stock twice, finally establishing it in a wooden building owned by his wife at Frieda and G-ravois, which building served both as a residence and store.

The defendant was at the drug store alone on the night of August 25, 1909. Near midnight, three boys, George Krissler, Albert Krissler and Ben Dawley, aged from eleven to fourteen years, who claimed to have been out to a moving picture show, came to defendant’s store and sat down on the front steps. They testify their attention was attracted by a noise inside the store room, and looking through the glass front, saw the defendant standing there in a night robe, striking matches. Within a few minutes thereafter these boys saw fires burning inside the store, whereupon they sent in a fire alarm; and about eight-minutes after the alarm was sent in, two policemen and several employees of the fire department came on the scene.

While the fires were burning, the defendant came out of a side door of the building, dressed in a night robe and carrying a suit of clothes under his arm. He also’ carried some money and jewelry in a pocket of his night robe. One of the policemen immediately arrested the defendant, and after allowing him to put on his clothes, accompanied him into a bedroom of the *155 burning building, pursuant to a request of defendant, to be allowed to obtain some additional clothing from a closet. The closet was locked, and after a search the key thereto was found on the floor. Upon unlocking the closet door, no clothing was found, but a fire was burning in the closet.

■One witness testified that a few days before the fire defendant said he did not like his location very well for a drug store; had more stock and fixtures than he could carry insurance on, and a fire would cause him great loss. Defendant also asked said witness if it was necessary to have the signature of the president of an insurance company on a policy of insurance; and also inquired about the location of fire alarm boxes.

A policeman who entered the building stated that he found fires burning in four places, two on each side of the storeroom near the floor; that holes had been made in the walls and the fires started with excelsior and small pieces of wood; that some of the shelving had burned and a ledger, which was leaning against one of the fires, was burning. That he saved part of the ledger.

Other witnesses who examined the building after the fire, testified that the fires appeared to have begum near the ceiling and burned downward toward the floor.

Defendant’s wife claimed damages to the stock of drugs and shelving by reason of the fire, and received from the insurance companies $900 on that account.

Defendant denied the crime and testified that the three boys (Krissler brothers and Dawley), who claimed to have seen him striking matches, were unfriendly to him; that they were street loafers, frequently slipping into his store and stealing cigarettes and other small articles; that about eight o’clock the night of the fire, he came into his store through the side door and found these boys in there with their *156 hands full of cigars and candy. He caught them, took the goods away from them, and after opening the front door, kicked them out. They made considerable noise over being kicked out, and defendant threatened to call the police before he could get them to leave. The defendant was strongly corroborated on this point by one Cunningham, who came into the store about the time the boys were being kicked out. He heard one of the boys curse the defendant and threaten to get even with him. The witness Cunningham, and one other witness, testified that they had on different occasions, seen the Krissler boys and Dawlev steal cigarettes and other articles at defendant’s drug store, and run off with them.

Defendant testified that he went to bed at ten-thirty the night of the fire, after barring the front door of'his store and propping the side door from inside. He was awakened by someone heating on the front or side of the house; and found the side door standing open.

The defendant purchased the stock of goods and fixtures which he is charged with burning, for $1800-, Shortly after the purchase, defendant told several persons he had been “done up awfully” by the misrepresentations of the man he bought of. It does not appear whether this remark referred to the lack of trade at that point or to the quality or quantity of the goods bought. An insurance adjuster estimated the value of the stock of drugs at from $1200- to $1500 at the time of the fire. This estimate did not include fixtures.

In applying for his merchant’s license some months before the fire defendant placed the value of his stock at $2000. Defendant testified to numerous additions to the stock of goods and fixtures; that on July 28th (after the insurance was written) he made one purchase of stock amounting to $1500; and that *157 at the lime of the fire, the stock of goods and fixtures were worth $4500:

Henry Schmitt and Phillip Knebel. who on July 9, 1909, placed the insurance on the stock of goods which defendant is charged with burning, testified that' the defendant did not apply to them for the insurance, but that on four or five different occasions they solicited him to insure, before it was written. Mr. Schmitt, who wrote the insurance, after examining defendant’s stock, testified that he had been in the fire insurance business for forty years, and was familiar with the value of drugs and fixtures. Mr. Knebel visited the store after the insurance was written and observed that the stock of drugs had been increased.

John Crouch, assistant sales manager for the Milliken Drug Company, and apparently well informed in the drug business, together with one Cunningham, who also seemed' to be familiar with the drug business, inventoried the stock of drug’s after the fire, and gave it as their opinion that the stock was worth at the time of the fire at least $3000 to $3500. One John Chittenden, engaged in selling drug specialties, visited the store in July before the fire, and estimated that defendant then had a $3000 stock.

Defendant testified that his last purchase of drugs was paid for with money which his wife kept in a safe deposit vault. The house where the store was located was mortgaged for $1200. It was also insured.

Three witnesses possessing some acquaintance with the defendant, testified that his reputation was good as far as they knew; never having heard anything derogatory of his honesty before the alleged crime was committed.

To secure a reversal, defendant makes the following assignments of error:

1. That the action of the trial court in taldng from the jury the first count of the indictment was equivalent to an acquittal on that count; and that as *158 the same offense was charged in the first count as in the second, the acquittal of defendant on the first,, amounts to an acquittal on the second.

2. That the judgment should he reversed without remanding, because the State failed to prove that any of the property described in the indictment was burned.

3. That the circuit court committed reversible error in allowing- the assistant circuit attorney, over his objection, to make improper remarks to the jury.

OPINION

The withdrawal of the first count of the . indictment from the consideration of the jury, while it amounted to an acquittal of the charge contained in that count, did not work an acquittal of the defendant of the charge contained in the second count.

The ease of State v. Headrick, 179' Mo. 300, does not sustain the theory of defendant. In the Headrick case, both counts of the' indictment charged exactly the same offense, to-wit, assault with intent to kill; and it was held that a verdict finding the defendant not guilty under one count and guilty under the other, could not stand. Here, we have a different situation. The charge of burning the goods with intent to defraud the insurance companies was a different accusation from the ordinary charge of arson in burning the same property without intent to defraud.

Defendant’s contention that there was no evidence that, any of the insured personal property was burned, is not borne out by the record. Officer Short, who ' entered the building while the fire was burning, stated that some of the shelving was burned near the window, also a ledger. There was further proof that part of the insured personal property was burned.

The assistant circuit attorney in his argument to the jury, said:

*159 “If you by your verdict set this man free On this mountain of testimony that I have brought here before you for the last week; if you turn this man loose, then I say to you the courts of justice will be sowing the seeds of discord and dissatisfaction with our system of government.

“Mr. Walsh: We object to that as improper.

“The Court: You may proceed.

“Mr. Walsh: We object to the court’s failure to rule.

“The Court: Objection overruled. You may proceed.”

To which ruling of the court the defendant excepted.

“Assistant Circuit Attorney: I say you will be sowing the seeds of discord and dissatisfaction, from which we are bound to reap a harvest of mob law and violence.

“Mr. Walsh: We object to that as absolutely improper.

“The Court: You may proceed. Objection overruled.

“Assistant Circuit Attorney: I owe a duty when I come in here as prosecutor in this court, to not only prosecute men that I believe guilty; but I also owe a duty to men I believe innocent to turn them free; and I am free to say that if in this case I did not believe this man guilty I would not be trying him here today.

‘ ‘ Mr. Walsh: I object to that.

“The Court: Objection overruled.”

To which ruling of the court defendant excepted.

“Assistant Circuit Attorney: I would not have spent a week trying this case if I had believed Mm innocent. Do you believe these boys lied on that very night when they saw these fires ? They went out there and turned in the fire alarm, and then they came back to the fire and then told the police about it; told their *160 story to the police. On the next morning didn’t they come up here in this room on the third floor, and they laid the matter before the warrant officer, and told the story; and they don’t issue warrants up there unless they find out crimes have been committed.

“Mr. Walsh: We object to that, as strictly against the court’s instruction.

“The Court: That is very objectionable.”

Most of the foregoing argument was improper and prejudicial to defendant.

To hold up before a jury the horrors of mob law is not a proper method of securing' verdicts of conviction. Juries should convict on evidence that crimes have been committed; and not through a fear that all law will be set aside and a reign of anarchy substituted. [State v. Jackson, 95 Mo. 623 , l. c. 653.]

The assistant circuit attorney appears to have been angered by the fact that defendant had in some measure impeached the leading witnesses for the State, by evidence that they were thieves; and in his zeal to secure a conviction, appealed to the jury to convict the defendant because he (the prosecutor) believed him guilty, and the party who issued, the warrant believed him guilty. The issue of the warrant was no evidence of the defendant’s guilt; and the personal belief of the prosecutor in defendant’s guilt furnished no grounds for a conviction; because that belief might have been based on matters which were not before the jury in the form of evidence. However, if the prosecutor was personally known to the jurors, as a man in whose judgment and veracity they had confidence, the argument may have had much weight in securing the verdict. [State v. Furgerson, 152 Mo. 92 ; State v. Wigger, 196 Mo. 90 ; State v. Phillips, 233 Mo. 299 .]

We are reluctant to reverse judgments on account of improper remarks of attorneys. When the proof of guilt is dear from the mouths of disinterested *161 and credible witnesses, we seldom reverse judgments for improper arguments, because in such cases a verdict of guilty would likely have been returned, regardless of the improper remarks; but here, the proof is strong that the chief witnesses for the State were angry at defendant because he caught them stealing, and kicked them out of his store. In demanding convictions on such testimony, prosecutors should confine themselves to legitimate arguments.

The judgment in this case must be reversed, because of the improper argument of the prosecutor.

By withdrawing the first count of the indictment after the jury was sworn, the defendant was acquitted of the charge contained in that count, and cannot again be tried for the crime of arson in the fourth degree. [Sec. 23, Art. 2, Constitution of Missouri; State v. Manning, 168 Mo. 418 .]

Upon a retrial, the court should instruct the jury that although they may find that defendant burned the goods, as charged, they must acquit him, unless they believe such burning was done with the intent to defraud the companies in which the property was insured.

The judgment is reversed and the cause remanded.

Ferriss, P. J., and Kennish, J., concur.