Opinion
November 24, 1928.
1. APPEAL: Errors Reviewable: Motion for New Trial. In a criminal case tried after the Act of 1925 (Sec. 4079, Laws 1925, p. 198) became effective, only such specific grounds or causes for a new trial can be considered on appeal as were set forth in detail and with particularity, in separate and numbered paragraphs, in the motion for a new trial, except such errors as appear in the record proper, which are always open for review.
2. GUILT: Witness: Accomplice: Under Sentence: Uncorroborated. An accomplice, even though convicted and under sentence, is a competent witness, and a defendant, charged with a felony, can be convicted on the uncorroborated testimony of an accomplice.
3. ____: Motive. Motive is not an essential element of a crime necessary to be shown by the State. If defendant actually instigated and participated in the commission of the crime, he is guilty, notwithstanding no motive is shown.
4. ____: Arson: Uncorroborated Testimony of Accomplice. The defendant, charged with arson, was shown to have been a man of good character and high standing. A flour mill and a store in a small town burned in the night time. Defendant owned and operated a garage close by the mill. No enmity existed between him and the owners of the mill or the owner of the store. No motive on the part of defendant was shown. A witness testified that he was employed by defendant to burn the mill and store, and was paid fifty dollars for burning them. This witness was indicted for the crime, pleaded guilty and was sentenced to imprisonment in the penitentiary, and his testimony was uncorroborated. He testified that he destroyed the letters written him by defendant and soliciting him to commit the crime. His story of defendant's connection with the fires is anomalous and improbable, yet, in failing to ascribe a motion to defendant or to disclose a fact that was directly impeached, his lack of ingenuity and the artlessness of his story stamp it as not impossible of belief. Held, that the trial court properly submitted the question of defendant's guilt to the jury.
5. EVIDENCE: Membership in Ku Klux Klan: Conclusion: False Issue. Defendant was being tried for arson in burning a flour mill. A witness for the State was the owner of a store destroyed in the same fire. H testified that there were two factions in the village, the Klan faction and the anti-Klan faction, and that defendant belonged to the Ku Klux Klan, and he did not, and that at the time of the fire they had not been friendly, and the cause of the strained relationship between them was defendant's membership of the Klan and his opposition to it. He stated that the only way he knew that defendant was a Klansman was by his acts, and that he never conversed with defendant about these matters or about the faction to which either belonged. Held, that the statement that defendant belonged to the Klan, not being based on any fact known to the witness, was a conclusion, and even though the witness had known the fact to be true, his testimony in that regard raised a false issue, without further proof that defendant, by reason of his membership in the Klan, bore enmity to the injured witness, so as to show motive, and its admission was prejudicial and reversible error.
6. ____: ____: Motive. A wide latitude is generally allowable in the development of evidence to show motive, but the evidence adduced must be competent and relevant, and its admissibility is governed by its connection with other facts and circumstances; and where no facts or circumstances connecting defendant with the Ku Klux Klan appear, to permit a witness to testify that defendant, charged with arson, was a member of the Klan at the time of the fire, is prejudicial error.
Corpus Juris-Cyc. References: Arson, 5 C.J., Section 53, p. 572, n. 16; Section 73, p. 583, n. 60. Criminal Law, 16 C.J., Section 43, p. 78, n. 12; Section 1048, p. 547, n. 28; Section 1411, p. 690, n. 93; Section 1532, p. 747, n. 47; 17 C.J., Section 3349, p. 87, n. 44.
Appeal from Dent Circuit Court. — Hon. W.E. Barton, Judge.
REVERSED AND REMANDED.
Earl E. Roberts, Homer Rinehart, James Booth and Virginia Booth for appellant.
(1) Where the defendant denies guilt and where, as here, the evidence when all considered shows the untruthfulness of the testimony of the principal witness, this court must reverse the judgment and discharge the defendant, even though such witness did testify directly to the guilt of defendant. State v. Brown, 209 Mo. 413. (2) The testimony of witness Bremer as to defendant's connection with the Ku Klux Klan was a pure conclusion and the court erred in refusing the motion to strike it from the record. State v. Dengel, 248 S.W. 603; State v. Hewitt, 259 S.W. 773; State v. Pate, 274 Mo. 649; State v. Koslickie, 241 Mo. 301; State v. Schlichter, 263 Mo. 561; State v. Evans, 267 Mo. 163; State v. Miller, 44 Mo. App. 159; State v. Gates, 130 Mo. 971; State v. Foley, 144 Mo. 600. (3) Evidence of defendant's alignment with the Klan was not admissible and, being admitted, was reversible error. 16 C.J. 546, secs. 1042, 1043; (4) The verdict and judgment is not supported by any substantial evidence, but is against the great weight of all the credible evidence in the case, is wrong and ought to be reversed and the defendant discharged.
North T. Gentry, Attorney-General, and J.D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The verdict of the jury is not against the evidence. The evidence is sufficiently substantial to support the verdict. Where such is the case this court will not interfere. It is not the province of this court to weigh the evidence or pass on the credibility of the witnesses; that is the peculiar duty of the jury, and where it has done so and the record contains substantial evidence, this court is unauthorized to interfere with the verdict. State v. Myer, 259 Mo. 319; State v. McCaffery, 225 Mo. 617; State v. Bobbitt, 228 Mo. 252; State v. Santino. 186 S.W. (Mo.) 976; State v. Bersch, 276 Mo. 397; State v. Story, 274 S.W. (Mo.) 54; State v. Crump, 274 S.W. (Mo.) 62; State v. Shelton, 284 S.W. (Mo.) 433; State v. Kinnamon, 285 S.W. (Mo.) 62; State v. Dworkin, 271 S.W. (Mo.) 477; State v. Witham, 281 S.W. (Mo.) 32; State v. Jackson, 267 S.W. (Mo.) 855; State v. Henson, 234 S.W. 832; State v. Sheline, 225 S.W. 673. (2) The testimony of witness Bremer as to defendant's connection with the Ku Klux Klan was competent and admissible for the purpose of showing motive. Evidence of ill-feeling and unfriendly relations between defendant and the witness engendered by the Ku Klux Klan factions was admissible. 16 C.J. sec. 1048; State v. Adkins, 222 S.W. 435. (3) The court properly overruled defendant's objection to the witness's testimony that the defendant was aligned with the Klan faction. The testimony was given as statements of fact and is not subject to the objection of conclusions. State v. Davis, 225 S.W. (Mo.) 709; State v. Evans, 267 Mo. 184; State v. Wertz, 191 Mo. 569; Reardon v. Railroad, 215 Mo. 137; Partello v. Railroad, 217 Mo. 656; State v. Kozlickie, 241 Mo. 301; State v. Buchler, 103 Mo. 207. Assuming that the statement of the witness was a conclusion, defendant was not harmed, inasmuch as guilt was shown by direct and positive evidence. Motive is not an essential element of the crime and need not be shown in a successful conviction. State v. Santino, supra.
The grand jury for Crawford County on February 20, 1926, returned an indictment against defendant in two counts. The first count charged him with arson, and the second count with aiding and abetting one Mitchell to commit arson. The charge related to a flour-mill building at Bourbon, Crawford County, owned by John and George Merkel. The jury returned a verdict finding defendant guilty and assessing his punishment at imprisonment in the penitentiary for a term of three years, defendant appealing from the sentence and judgment entered thereon.
The facts adduced upon the part of the State warrant the finding that at Bourbon, Crawford County, John and George Merkel. brothers owned a certain building in which they operated a flour mill. About twenty-eight feet east of the flour mill George Merkel resided in a six-room house. About thirty-eight feet east of said house defendant owned a garage building in which he operated an automobile-repair shop, and also slept. Between three-thirty and four-thirty A.M. on October 18, 1924, the flour-mill building of Merkel brothers was observed on fire. Two or three other buildings were also on fire at about the same time, either having been set on fire or having caught from the burning buildings. The people of the town and neighborhood gathered, attempting to quench the fires, but being unable to do so, the buildings burned to the ground and were "a tee-total loss," as a witness put it.
Defendant was not accused of the crime until more than a year had elapsed. He was indicted upon information given by one Henry L. Mitchell to the prosecuting attorney. It seems that a detective discovered evidence pointing to Mitchell's connection with the burning of the mill building. The testimony of Mitchell develops that, previous to setting the buildings on fire, defendant wrote him a letter saying that he wished to see him and would go to St. Louis, where Mitchell was then living, for that purpose. Upon hearing from Mitchell, defendant afterward went to St. Louis on two or three occasions, seeing Mitchell and importuning him to fire the buildings. Defendant promised to pay him fifty dollars. Mitchell, previous to the fire, promised defendant a time or two to set them on fire on a certain day, but failed to keep his promise. On the morning of October 18, 1924, about two-thirty A.M., without previous notice to defendant that he was then coming, Mitchell appeared across the street from defendant's garage, throwing rocks, probably about the size of an egg, at the door to awaken defendant. Defendant, on awaking, crossed the street and conversed with Mitchell. Mitchell stated he did not go to Bourbon for the purpose of setting fire to the buildings, but to see his father. On talking to defendant, however, he was persuaded, defendant giving him a pistol, pliers and a quantity of whiskey, some of which he drank. Thereupon around three-thirty A.M. or a little later, Mitchell set fire to the flour-mill building and the store building of one Bremer. In order that the buildings might burn more quickly, he saturated them with oil that he found where he said defendant had placed it in a cache for that purpose. After the fire, defendant met Mitchell by prearrangement in St. Louis, paying him the fifty dollars promised for setting fire to the buildings. Such other facts as are pertinent, if any, will appear in the opinion.
I. Inasmuch as the trial occurred after the passage of the Act of 1925, relating to motions for a new trial (Sec. 4079, p. 198, Laws 1925), prescribing that the motion shall set Grounds forth in detail and with particularity in separate Reviewable. numbered paragraphs the specific grounds or causes therefor, the questions to be discussed are limited to the sufficiency of the evidence and the admission of specific evidence. [State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862.] However, errors appearing in the record proper are always open to review, but as none appear in this record, we dismiss it from further consideration.
II. Defendant challenges the sufficiency of the evidence thus: "Where the defendant denies guilt and where, as here, the evidence when all considered shows the untruthfulness of the testimony of the principal witness, this court must reverse the judgment and discharge the defendant, even though Sufficiency of such witness did testify directly to the guilt of Evidence. defendant." In support of his contention, defendant cites State v. Brown, 209 Mo. 413, 107 S.W. 1068.
The only direct evidence connecting defendant with the setting on fire of the flour-mill building was that of the witness Mitchell, who, after arrest, confessed the arson by setting fire to the building and, we assume, implicated defendant. Thereafter Mitchell was indicted and, at the time of his testimony against defendant, was serving a three-year sentence in the penitentiary.
Mitchell, according to his testimony, was hired by defendant for the purpose indicated. Although at common law, defendant, under these circumstances, was denominated an accessory before the fact or in the second degree, under our statute he became responsible as though a principal in the first degree and chargeable as such. [R.S. 1919, sec. 3687.] Mitchell and defendant, if Mitchell is to be believed, were accomplices. Mitchell, having pleaded guilty or been convicted and sentenced, even though an accomplice, became a competent witness. [State v. Roderman, 297 Mo. 143, 248 S.W. 964.] And we have held that one charged with a crime can be convicted on the uncorroborated testimony of an accomplice. [State v. Glon, 253 S.W. 364.]
Defendant bases his contention that we ought to discharge him on the following facts and inferences: That defendant was shown a man of good character and high standing. Mitchell was shown a man of bad character and unworthy of belief. That no enmity existed between defendant and John and George Merkel, the owners of the flour mill, or between defendant and witness Bremer, the owner of the store whose buildings were burned. That no motive on the part of defendant was shown. That Mitchell said he destroyed the letters written him by defendant. That defendant's garage was about a hundred feet distant from the flour mill, resulting that a fire would endanger it. Conceding that we are unable from the testimony to perceive motive on defendant's part, yet motive is not an essential element of a crime necessary to be shown by the State. [State v. Santino, 186 S.W. 976.] If defendant actually instigated and participated in the commission of the crime, he is guilty, notwithstanding a want of motive. Moreover, we are not wholly persuaded that occasion exists to unequivocally declare that the evidence of Mitchell is so utterly unbelievable that we must cast it aside. A reading of Mitchell's testimony promotes the conclusion that his tale as to defendant's connection with the fires is anomalous and improbable, yet, in failing to ascribe a motive to defendant or to disclose a fact that was directly impeached, the witness' lack of ingenuity and the artlessness of his story stamp it not impossible of belief. We think the court nisi properly submitted the case to the jury on the facts developed by the State.
III. Defendant complains that the court erred in admitting evidence as to defendant's connection with the Ku Klux Klan. According to witness Bremer, defendant, about three days before the fire, purchased of Bremer eight pieces of Connection With steel strips. On cross-examination by defendant, Ku Klux Klan. the witness first stated that he and defendant were on friendly terms. The witness then stated that those terms and this relationship did not exactly continue to the time of the fire. He stated that there had been no falling out, but they were not as friendly as they had been before. He could not tell what the trouble was, for he had done him no harm, nor had defendant done witness any wrong. Three weeks after the fire, defendant voluntarily sought witness, paying him an account owing. At the time they were both friendly. On redirect examination by the State, witness was asked if they had been friendly at the time of the fire and witness answered, "No." He then gave as a reason that they had not been on good terms since that Klan business started in Bourbon. Witness stated that he was not a Klansman and was opposed to the Klan. Defendant objected because it was irrelevant and immaterial whether witness was a Klansman or opposed to the Klan. The witness was permitted to state that two factions existed at Bourbon, the Klan and anti-Klan factions; that he was an anti-Klansman and defendant a Klansman, and that was the cause of the apparent strained relationship between them. The court overruled several objections of defendant to the effect that such evidence was irrelevant and immaterial, called for a conclusion and the opinion of the witness and permitted the witness to state a conclusion without stating facts. On redirect examination, the witness stated that the only way he knew defendant was a Klansman was by his acts, and that he never conversed with defendant about these matters or about the faction either belonged to. Defendant then requested the court to strike out the testimony on the subjects on the ground that it was an opinion and conclusion of the witness and not based on any fact.
We think that the statement by the witness that defendant belonged to the Klan was a conclusion, and the supposition and opinion of the witness. So far as the evidence established, the witness had no fact upon which to base the statement. Even though he had known the fact to be true, the evidence in that regard raised a false issue without further proof that defendant, by reason of membership in the Klan, bore enmity to the injured, so as to show motive.
A wide latitude is generally allowed in the development of evidence to show motive. The evidence, however, adduced in that regard must be competent and relevant. Its admissibility is governed by its connection with other facts and circumstances. Here no facts or circumstances connecting defendant with the Klan appeared. The testimony of the witness as to defendant's connection with the Klan amounted to nothing more than his belief or opinion. The testimony involved the mental state of defendant toward the witness, which was not based upon an apparent fact, but rather on what the witness conceived and figuratively felt, instead of what he perceived or knew, resulting that his conclusion was substantially aided by his reasoning faculty. This was not evidence that was based on the result of one of the five senses so as to render it admissible. That it was prejudicial we entertain no doubt.
The judgment is reversed and the cause remanded.
This cause coming into Court en Banc from Division Two, the foregoing divisional opinion by DAVIS, C., is adopted as the decision of the court. White, C.J., and Ragland, Atwood, Blair and Gantt, JJ., concur; Walker, J., dissents; Gentry, J., not sitting.