Summary
In State v. Rudman, (Mo.) 37 S.W. (2) 409, the defendant asked an instruction to the effect that though Rudman had opportunity and motive to set the fire and burn the building mentioned in the indictment, that of itself would not justify a verdict of guilty, unless in fact the jury should find that Rudman did set the fire.
Summary of this case from State v. WengerOpinion
March 25, 1931.
1. ARSON: Sufficient Evidence: Setting Fire. Evidence tending to show that defendant lessee had an opportunity and the means for setting the fire; that he had the motive; that no one else had access to the building except the lessor and his wife, who had no motive in setting the fire; the unusual presence and unusual operations of defendant about the store after business hours in the evening the fire occurred; his presence there at such time with a stranger; his carrying away bundles of unknown contents; explosions, followed by fire, within a few minutes after his departure from the store; the apparent use of gasoline in causing the fire, and the absence of any assignable cause for it except human agency, is sufficient to support a verdict finding defendant guilty of arson in the second degree.
2. ____: Second Degree: Dwelling House. A storehouse, the first floor and basement used by defendant as a store in the retail sale of goods and the second story used and occupied by the owner and his wife as a residence, may be classed as a dwelling house, and if defendant set it afire in the first floor, and basement he is guilty of arson in the first degree; but the State may waive its right to charge him with arson in the first degree, and charge him with arson in the second degree in that he set fire to a storehouse adjoining a dwelling house inhabited and occupied by said owner and his wife, and if under such charge he is convicted of arson in the second degree he cannot complain that he was not charged and convicted of arson in the first degree.
3. ____: Failure of Proof: Charge and Conviction of Lesser Offense. A defendant is not harmed because he is charged with and found guilty of second-degree arson, although the proof shows him guilty of first-degree arson. In such case there is not a failure of proof. The statute (Sec. 3692, R.S. 1919) permits the jury to find defendant guilty of a lesser offense than that charged, and the State may waive the higher offense and charge him with the lesser offense; and by another statute (Sec. 3908, R.S. 1919) it is expressly declared that no indictment shall be deemed invalid and no judgment in any manner affected "because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted."
4. ____: Instructions: Opportunity: Setting Fire: Suspicious Circumstances: Comment on Evidence. An instruction telling the jury that, though defendant had opportunity to set the fire and burn the building, that of itself will not justify a verdict of guilty, unless in fact they find that he did set the fire, and another telling them that, although they may believe there were suspicious circumstances pointing to guilt, this will not justify them in finding him guilty, unless they find very strong and convincing testimony beyond reasonable doubt that he did set fire to the building, have usually been condemned as comments upon the evidence, and their refusal is not error.
5. ____: Instruction: Cautionary. It is not error in an arson case to refuse an instruction admonishing the jury that their verdict must be unanimous, and that "no juror should yield his deliberate conscientious conviction as to the guilt or innocence of the defendant, either at the instance of a majority of the jury for the sake of unanimity, or to prevent a mistrial." The giving of such cautionary instructions is usually discretionary with the court. They are merely admonitory, addressed to the jury by the judge, and are no necessary part of the law of the case.
Appeal from Circuit Court of City of St. Louis. — Hon. Wilson A. Taylor, Judge.
AFFIRMED.
Abbott, Fauntleroy, Cullen Edwards for appellant.
(1) "The aforesaid building," which the defendant is charged with having set fire to, is, by the indictment, alleged to be "adjoined to an inhabited dwelling house then and there occupied by said William Gruenekemeier." Clearly the "aforesaid building," which said defendant is charged with having set fire to, was a different building than that which was "occupied by one William F. Gruenekemeier and wife." (2) The indictment charges arson in the second degree. It does not charge arson in the first degree, nor does the indictment set up facts which would make it arson in the first degree. Arson in the first degree is defined by Sec. 3282, R.S. 1919. Arson in the second degree is defined by Sec. 3284, R.S. 1919. The building which burned was a two-story brick building, the ground floor of which was a shoe store, which was occupied by defendant, and the upstairs, second story part of the building, was occupied by the Gruenekemeiers. This, under the decisions, makes that building one building, and the "fact that the lower part was devoted to the shoe business, and only the upper portion was occupied as a dwelling house," did not make it two buildings. State v. Jones, 171 Mo. 405; Commonwealth v. Lee, 18 N.E. 586. (3) The evidence shows that the building, the lower floor of which was burned, was a part of the same building where the Gruenekemeiers lived and was not, therefore, a "building" which "adjoined an inhabited dwelling house then and there occupied by said" Gruenekemeier and wife, and, therefore, at the close of all the evidence in the case, the instruction should have been given, which defendant requested, wherein the defendant asked the court to instruct the jury to find the defendant not guilty for the reason that the evidence was not sufficient to support the allegations of the indictment, and for the reason that the building which the evidence showed was on fire was not a separate building such as is described in the indictment and was not a building which adjoined the building which was inhabited by the said Gruenekemeiers, but was the same building. (4) The fact that the defendant had a motive and the opportunity to commit the crime of arson, with which he was charged, is not sufficient testimony upon which to find a verdict of guilty. State v. Ruckman, 253 Mo. 499. (5) The defendant had the right to have the jury instructed specifically upon the point that motive and opportunity on the part of Rudman was not, alone, sufficient to convict. State v. Ruckman, 253 Mo. 487; Commonwealth v. Johnson, 276 S.W. 125. (6) The court erred in not giving Instruction No. 2 asked for by defendant, which in effect, told the jury that, even though they might believe from the evidence that there were suspicious circumstances connecting defendant with the burning of the building, yet they could not find him guilty unless they found from the testimony, beyond a reasonable doubt, that he did, in fact, cause the fire in question. State v. Ruckman, 253 Mo. 487; Commonwealth v. Johnson, 276 S.W. 125; Campbell v. Railway Co., 175 Mo. 165; State v. Picnick, 90 P. 646. (7) The court committed error in refusing to give Instruction No. 4 asked by defendant, which was to the effect that, if any of the jurors were not convinced, beyond reasonable doubt, as to the guilt of the defendant, then they should not give way in their opinion by way of compromise. People v. Dole, 122 Cal. 486, 55 P. 581; Cassen v. State, 75 Ind. 146. (8) There is not sufficient evidence to prove defendant guilty of arson. The evidence throws suspicion upon Mr. and Mrs. Gruenekemeier much more than it does upon defendant. It is inconceivable, under the evidence, that defendant would have made preparations and set fire to this building at the hour when it occurred, and, practically, in the presence of Mr. and Mrs. Gruenekemeier. State v. Ruckman, 253 Mo. 487; State v. Picnick, 90 P. 646.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) The evidence, while circumstantial, was amply sufficient to take the case to the jury. This court will not disturb the judgment of the lower court where the evidence supporting the jury's verdict is substantial. State v. Myer, 259 Mo. 318; State v. Jackson, 267 S.W. (Mo. Sup.) 856; State v. Dworkin, 271 S.W. (Mo. Sup.) 478. (2) The fact that the second floor of the building which was used as a dwelling house and was not in a separate and distinct building from the one set on fire does not alter or change the crime to arson in the first degree. Defendant's theory seems to be that because the dwelling house was a part of the building set on fire it did not adjoin the building set on fire within the meaning of the statute, Section 3284. The second floor was used as a dwelling house. It, of course, adjoined the first floor of the building which was set on fire. Sec. 3283, R.S. 1919; State v. Huffman, 136 Mo. 64. There was no variance between the proof and the information. State v. Jones, 171 Mo. 405. The fact that a part of the building was being used as a dwelling by Mr. and Mrs. Gruenekemeier while the rest of it was used as a shoe store could not in any wise, as a matter of law, deprive the part used as a dwelling house of its character as a dwelling house under the statute. (3) The trial court quite properly refused to give each and every instruction requested by the appellant. For the most part, these instructions were comments on the evidence, abstract statements of the law embodying and mixing abstract theories of criminal and civil law together. In each instance of requested instruction, all matters therein contained, even enough incorrectly stated but if at all applicable to the law of the case, were correctly covered and given in the court's instructions. It is unnecessary in a criminal case to give a requested instruction where the substance of it is correctly embodied in an instruction given by the court.
The defendant was charged by information in the Circuit Court of the City of St. Louis with arson in the second degree, in that, April 25, 1928, he set fire to a certain storehouse at 4414 Natural Bridge Avenue in St. Louis, a building adjoining a dwelling house inhabited and occupied by one William Gruenekemeier and his wife Victoria Gruenekemeier. On a trial, October 29, 1929, defendant was found guilty as charged, his punishment assessed at three year's imprisonment in the penitentiary, and he appealed from the judgment following.
The Gruenekemeiers lived in the second story of a two-story building at 4414 Natural Bridge Road on the south side of the street, fronting north. The first floor and the fixtures they had leased to the defendant, who conducted a retail shoe business there. Under the lease the defendant used a part of the basement. About 7:30 o'clock in the evening of April 25, 1928, Mrs. Gruenekemeier, upstairs, heard peculiar noises coming from below as if something were being throwing against the clothes chute which extended from the second story down to the basement. A stairway led from the second story to the first. She went down stairs, found the shade of one window down and another up a little way. Looking through she saw a man she did not recognize standing in the store tying up bundles and throwing them against the clothes chute. She went back upstairs and informed her husband. Then she placed her ear to the speaking tube which extended from the kitchen down to the lower floor and she heard a conversation between the defendant and Julius Hyken, a boy who worked for defendant in the store. She heard Mr. Rudman say: "You can take a bigger box." And the other man who was here said: "The shoes in this box we can take them out and wrap them up." Further she heard one of the men say, "I have a case of rubbers in the back there." Then someone said, "Bring them here."
A part of this conversation was in German. A little later Mr. Gruenekemeier went down to the first floor to investigate matters, and found only Rudman who was in the back of the store. Rudman came forward and "he was all sweated up and excited." Gruenekemeier asked him where his clerk was. Rudman answered that it was his clerk's day off. The stores in the neighborhood generally closed at 6:30. Gruenekemeier thought it was unusual that Rudman was in the store at that time of night. They had some conversation about the rent. Gruenekemeier then went out with Rudman and they walked to the corner and came back. Rudman went into the store and Gruenekemeier took position across the street. As Gruenekemeier came out of the store he saw two cartons near the door tied together. When he came back from down the street he got behind a telegraph pole and watched. It was then about twenty minutes to nine. Mr. and Mrs. Gruenekemeier testified that soon they saw a stout man and the defendant come out of the store and go to the defendant's automobile. The other man took a large parcel of bluish white paper from the machine and then they walked west down the street. Defendant got in his machine and went east. Mr. Gruenekemeier came across the street and went upstairs. About a quarter of nine all the lights went out, and about five minutes after the defendant drove away and after Gruenekemeier went upstairs he and his wife heard four loud explosions in the lower part of the building, which made vibrations throughout the house. All the windows on the first floor were blown out; flame and smoke immediately commenced coming upstairs in the rear of the building. The Gruenekemeiers then turned in a fire alarm.
William Rohlfing, captain of the fire engine, and other firemen testified that there were two distinct fires not connected with each other; one in the basement, and one on the first floor. From the smell and other appearances they judged the fires had been started by gasoline. There was a gasoline odor and there was an oily feel of things in the basement. The State presented evidence tending to show goods in the store were insured in several policies totalling eight thousand dollars; that the sound value of the stock of goods was about $2500, and the loss of the stock $980. The fire chief, Rohlfing, testified that in every ten to fifteen boxes he would find a box with a pair of shoes in it and the others all had tissue paper in them. The defendant offered evidence to show that the insurance also covered the fixtures belonging to Gruenekemeier, worth about two thousand dollars; the lease provided that the fixtures should all the time be insured by defendant for five hundred dollars. The defendant testified that the goods in the store were worth nine thousand dollars. Other witnesses were introduced by the defendant to show the value of the goods was approximately as much as they were insured for. Defendant also brought out that it was customary in shoe stores, when a pair of shoes is sold, to retain the empty box in the shelf to make a good appearance. The boy Julius Hyken testified that he was not in the store at the time; that it was his day off. The defendant denied that he had anything to do with setting the fire, and offered evidence to show that he was a man of some property.
I. Defendant filed a demurrer to the evidence at the close of the State's case, also at the close of all the evidence, and makes the point that the evidence was insufficient to make a submissible case. The evidence as briefly stated above shows that the defendant had an opportunity and the means for setting the fire, and that he had the motive. The evidence fails Sufficient to show that anyone else had access to the building Evidence. except the defendant and the Gruenekemeiers who had no motive in setting the fire. And if the jury believed the Gruenekemeiers the evidence also shows the unusual presence and unusual operations of the defendant about the store at a time in the evening after business hours, his presence with a stranger, his carrying away bundles of unknown contents, the explosions followed by the fire within a few minutes after his departure from the store, the apparent use of gasoline in causing the fire, and the absence of any assignable cause for it except human agency. The evidence was sufficient from which the jury could reasonably find that the defendant set fire to the store.
II. The principal point made by the defendant is that the evidence fails to show arson in the second Dwelling House: degree. Section 3282, Revised Statutes 1919, Arson: Second defines arson in the first degree, so far as it Degree. affects the facts here, as where a person willfully sets fire to any dwelling house in which there shall be at the time some human being. Section 3283 defines a dwelling house as follows:
"Every house, prison, jail or other edifice, which shall have been usually occupied by persons lodging therein, shall be deemed a dwelling house of any person having charge thereof or so lodging therein: but no warehouse, barn, shed or other outhouse shall be deemed a dwelling house, or part of a dwelling house, within the meaning of this or the last section, unless the same be joined to or immediately connected with and is part of a dwelling house."
Section 3284 defines arson in the second degree as follows:
"Every person who shall willfully set fire to or burn any shop, warehouse, office, storehouse or other building not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, so that such dwelling house shall be endangered by such firing, shall, upon conviction be adjudged guilty of arson in the second degree."
The point made by appellant is that he was charged with arson in the second degree, setting fire to a building "adjoining to" or within the curtilage of an inhabited dwelling-house. It is argued that the first floor and the basement where the fire was set was not a building "adjoining to" a dwelling house but part of the same building in which the Gruenekemeiers lived. It was one building and not two buildings. And in order to be arson in the second degree there must be two buildings, the building which was set on fire and the adjoining dwelling to which fire is not set.
Appellant cites State v. Jones, 171 Mo. 401, where the defendant was charged with arson in the first degree. He set fire to a building which was occupied on the second floor as a dwelling house, and the lower floor was used as a drug store. The court held that the building was a dwelling house and the conviction of arson in the first degree was affirmed. No doubt, on that ruling, the entire building here was a dwelling house within the meaning of the arson statutes.
See also 19 Corpus Juris, 843, 844 et seq. The footnote citations furnish numerous instances of "dwelling houses" practically all of which applied here would compel the designation of the building at 4414 Natural Bridge Avenue as a dwelling house, and compel the conclusion that if the defendant set it on fire, as the evidence tends to show, he was guilty of arson in the first degree.
III. In State v. Jones, 106 Mo. 302, l.c. 310, 311, cited approvingly in State v. Jones, 171 Mo. 401, supra, the defendant was charged with arson in the third degree and was Failure convicted on that charge. The court held that it was of Proof. no cause for reversal that the evidence showed or tended to show the defendant guilty of a higher degree of offense than that of which he was convicted, and said:
"He (defendant) cannot complain, if the State waives the right to proceed for the graver offense, provided always it includes the one with which he is charged, and he is fully informed of the charge of which the State seeks to convict him."
If the defendant had been charged with arson in the first degree, of which the evidence showed him guilty, he could not complain because Section 3692, Revised Statutes 1919, permits a jury to find one guilty of the lesser offense than that charged. Yet, because he is charged with a lesser offense and found guilty of a lesser offense, although the proof showed he was guilty of the greater offense, he claims there is failure of proof; that the crime charged is not the one proved. It is hard to see how he could be harmed by that. But the difficulty is met by the Statute of Jeofails. The court in the Jones case cited Section 4115, Revised Statutes 1889, which is verbatim the same in the part quoted as the Statute of Jeofails, Section 3908, Revised Statutes 1919, which provides:
"No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceeding thereon be stayed, arrested or in any manner affected . . . because the evidence shows or tends to show him (defendant) to be guilty of a higher degree of the offense than that of which he is convicted."
Thus it does not matter whether the defendant was charged with a higher degree of the offense or with the degree of which he was found guilty, nor that the evidence showed him guilty of the higher one.
Appellant in effect argues that the offense proved was a different offense from that charged. This court recently has had under consideration "related offenses." [State v. Hancock, 320 Mo. l.c. 331.] There the defendant was charged with the transportation of moonshine and found guilty of possessing moonshine. It was held the proof did not sustain the charge because the two offenses were different. They were different acts. Possession is one act and transportation is a different act. That illustrates the distinction. In this case there was one act. The charge in the information was that the defendant set fire to and burned a certain building and storehouse situated at 4414 Natural Bridge Avenue, and that the building adjoined an inhabited dwelling. The defendant could not mistake the offense of which he was charged. It was the same identical act and the same identical building as it would have been if there had been a dwelling house adjoining it. The offense was setting fire to the store. That it "adjoined" a dwelling house is a conclusion of the pleader from the facts in evidence. In an offense of different degrees, the degrees are distinguished not by a difference in the particular act performed, but by the conditions under which it occurs or the circumstances surrounding it.
The act of which the defendant was found guilty was exactly the same as if the dwelling had been beside the store to which he set fire instead of above it. He has no right to complain because he was convicted of the lesser offense and received a lighter punishment than he deserved.
IV. Appellant assigns error to the refusal of certain instructions asked by him. Instruction number one said in effect that though Rudman had opportunity and motive to set the fire and burn the building mentioned in the indictment that of itself would not justify a verdict of guilty unless in fact the jury should find that Nathan Rudman did set it afire. Instruction number two said that although the jury might believe there were suspicious circumstances pointing to guilt, yet this Comment on would not justify the jury in finding the defendant Evidence. guilty unless they should find very strong and convincing testimony beyond reasonable doubt that the defendant did set fire to the building. Instructions of this character have usually been condemned by this court as comments upon the evidence. [State v. Rosenheim, 303 Mo. l.c. 570; State v. Pate, 268 Mo. l.c. 443; State v. Glenn, 262 S.W. l.c. 1032-33; Burton v. Holman, 288 Mo. l.c. 82.] Appellants cite cases such as State v. Ruckman, 253 Mo. 487, where it was held that evidence of motive was admissible, but that such evidence alone was not sufficient to make out a prima-facie case. That ruling does not mean that the jury should be instructed in a manner emphasizing the effect of such evidence.
Appellant further assigns error to refusal of instruction number four asked by him. It admonished the jury that their verdict must be unanimous: "No juror should yield Cautionary his deliberate conscientious conviction as to the Instruction. guilt or innocence of the defendant, either at the instance of a majority of the jury for the sake of unanimity, or to prevent a mistrial," etc. Cautionary instructions of that kind are usually discretionary with the court. It is merely admonitory, addressed to the jury by the judge, nothing more, and is no necessary part of "all the law of the case." It is in the discretion of the judge. The jury was fully instructed on all phases of the law affecting the case.
The judgment is affirmed. All concur.