Opinion
June 11, 1930.
1. ARSON: Necessary Proof: Circumstances. In an arson case it is not sufficient to establish the corpus delicti, to show that the fire occurred: there must be proof of circumstances from which the jury will be authorized to find the further fact that the fire was of incendiary origin; but these facts may be established by circumstantial evidence. And in addition to proof of the corpus delicti, there must be proof tending to show that the accused was the incendiary.
2. ____: Sufficient Evidence: Appellate Rule. In determining whether the evidence is sufficient to support a verdict of guilty the established appellate rule is to accept as true all evidence tending to show defendant's guilt, together with all inferences reasonably to be drawn therefrom: the truthfulness of the testimony and the reasonableness of the inferences being exclusively for the jury.
3. ARSON: Removal of Goods: Insurance: Motive. Evidence that defendant was secretly removing a portion of his stock of goods from his store on the day and shortly before the fire of unknown origin occurred, and that he had recently insured the stock in an amount in excess of its value, tends to show a motive to burn his stock in order to collect the insurance.
4. ____: Second Degree: Variance: Insured Property. The fact that the proof tends to show a violation of the statute (Sec. 3288, R.S. 1919) defining as arson in the third degree the firing of a building insured against loss or damage by fire, with the intent to defraud the insurer, does not establish a variance from an information charging defendant with setting fire to a building adjoining to or within the curtilage of an inhabited dwelling house, under the other statute (Sec. 3284, R.S. 1919) defining such act as arson in the second degree.
5. ____: ____: ____: Adjoining Dwelling House: Separated by Wall. Under an information charging that defendant set fire to a building adjoining to or within the curtilage of an inhabited dwelling house, two buildings occupied by different families, separated only by a wall and having different entrance doors and separate yards, do not constitute a single dwelling house, but the one fired adjoins the other.
6. ____: Remote Evidence: Notice to Vacate. Evidence that a few weeks before the fire in a building entirely under the control of defendant, charged with setting fire to it, and shortly after he had taken out heavy insurance upon his stock of goods and household furniture in the first and second stories, he gave notice to a tenant on the third floor to vacate, is not too remote or immaterial, where it is shown that he did not want her about the building and does not see fit to tell the jury what reasons he had for ordering her out.
7. TRIAL: Cross-Examination of Defendant: Credibility: Motion to Strike Out. The objection that questions asked of defendant by the State related to matters not referred to in his examination in chief having been overruled, and the court having ruled that the testimony offered in contradiction of his answers was not proper rebuttal, he should have moved to strike out the cross-examination, and having failed to do so he cannot complain on appeal.
8. INSTRUCTION: Alibi: Reasonable Doubt. An instruction telling the jury that "if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed you will acquit him," is not erroneous. It does not single out the evidence on alibi and require such evidence alone to raise a reasonable doubt of defendant's guilt, and is not faulty in failing to tell the jury that the defendant must be acquitted if the alibi evidence, in connection with the other proof in the case, raises a reasonable doubt of his guilt.
9. ARSON: Endangering Adjoining Dwelling House: Felonious Intent. In the trial of a defendant charged with having set fire to a house, it is not necessary to prove that he set the fire with the felonious intent of endangering the inhabited adjoining dwelling house. The felonious intent consists in the wilful and intentional act of setting fire to a building; and the endangering of the adjoining dwelling house must be shown, but only as the result of such criminal act.
10. ARGUMENT TO JURY: Objections Sustained: Failure to Except to Reprimand. Where the trial court sustained all of appellant's objections to the argument to the jury by the State's attorney, and on request to reprimand at least mildly complied, and appellant failed to except to the sufficiency of the reprimand, he is in no position on appeal to urge such argument as error.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Abbott, Fauntleroy, Cullen Edwards for appellant.
(1) The case is purely circumstantial. Defendant denies most positively any participation in the act alleged. The theory of the State must be that he actually, himself, set fire to the premises. The State offered one witness — an itinerant yardman whose position in society entitles him to little or no consideration. Opposed to this testimony is the testimony of reputable citizens proving a perfect and complete alibi and the testimony as to this alibi is not contradicted by any person or by any facts or circumstances. The defendant was on most friendly relations with the occupant of the building and could possibly have no motive to cause her loss or injury. The State attempted to prove insurance, but utterly failed to prove that he was over-insured, but on the contrary proved that he was under-insured. Hence there is an utter failure to prove any motive in the case and the testimony taken as a whole does not point conclusively to the guilt of the defendant nor does it exclude every other hypothesis save the guilt of the defendant, and hence defendant was entitled to a discharge at the close of all the evidence. Underhill's Criminal Evidence (3 Ed.) sec. 561, p. 793. (2) The defendant, by the indictment, was charged with arson in the second degree, under Section 3284, which makes it an offense to willfully set fire to or burn any shop, not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house. The variance here is as to the gist of the offense. The offense which the testimony tended to prove was that of arson in the third degree and the proof showed conclusively that the building occupied by Mrs. Brennan and the defendant was one dwelling house. 22 Ency. Pl. Prac. 579; State v. Jones, 171 Mo. 404; Spears v. State, 16 L.R.A. (N.S.) 284, 46 So. 166. (3) The court erred in refusing to give defendant's Instruction B, which advised the jury that there was no evidence in the case tending to show that the personal property in the building in which the fire occurred was insured in excess of its actual or fair cash value and the refusal of said instruction was erroneous because, if the property insured was not less in value than the amount of insurance carried, such testimony was incompetent and not material to any issue in the case and had no tendency to prove that defendant had a motive to commit the crime wherewith he stands charged. Stitz v. State, 4 N.E. 147; People v. Kelly, 42 N.Y.S. 756; People v. Doneburg, 98 N.Y. 438; Lane v. Commonwealth, 121 Ky. (S.W.) 488. (4) The court erred in admitting in evidence the testimony of the witness Brown relating to the fact that defendant requested her to remove from the premises, and stated that he intended to make other arrangements about the occupancy of said premises, and erred in refusing to strike said testimony out on the motion of the defendant, and erred in refusing to give Instruction E withdrawing said testimony from the consideration of the jury, for the reason that said testimony was irrelevant, immaterial and so remote as not to prove or tend to prove any fact in the case, and was prejudicial to the rights of the defendant in that it allowed the jury to draw inferences against the defendant from testimony that had no legal or logical tendency to prove any material fact in the case. United States v. Ross, 92 U.S. 283; Manning v. Insurance Co., 100 U.S. 693; Brauer v. United States, 299 F. 13; Xenia Bank v. Stewart, 114 U.S. 231; Peck v. Heurich, 167 U.S. 624; Vicksburg M.R. Co. v. O'Brien, 119 U.S. 99; Crawford v. United States, 212 U.S. 183; Yaggle v. Allen, 48 N.Y.S. 227. (5) The court erred in permitting the prosecuting attorney to cross-examine the defendant in relation to a statement made to a witness later offered by the State to the tenor and purport that if she (the said witness) would testify for him and testify to the effect that he was not at home on the day of the fire, he would compensate her for it, and further interrogating the defendant and asking him if he did not bring said witness over to his place of business and while there make a proposition to her to the effect that he would pay her well for giving testimony in his behalf at the trial of the case, because said examination was entirely outside of the examination of the defendant in chief, and was a violation of the statutes and a violation of constitutional provisions which provide that a witness cannot be compelled to testify against himself, and a violation of the law which declares that defendant cannot be interrogated about any fact not mentioned by him in his direct examination. State v. Banks, 258 Mo. 493; State v. Vandiver, 149 Mo. 502; State v. Sprey, 174 Mo. 569; State v. Philips, 233 Mo. 299; State v. Santino, 186 S.W. 967.
Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) In arson the corpus delicti is established by showing: (a) The burning of the building, and (b), the agency of the defendant therein. (2) In support of the latter element the following is shown: (a) The presence of the defendant at the scene ten minutes before the fire; (b) the sudden explosion and rapid spread of the fire. Thus the evidence is circumstantial, and the sufficiency thereof to establish the second element of corpus delicti appears to be the important question in the case. (3) The evidence sufficiently establishes the existence of a "dwelling house" separate and apart from that of the defendant, and that they adjoined, thus substantiating the charge laid in the information. Hence there is no variance. Sec. 3284, R.S. 1919. Evidence to show a motive is always admissible. State v. Santino, 186 S.W. 976; State v. Wheaton, 221 S.W. 26; State v. Aitken, 240 Mo. 254. (a) That defendant's property was insured was indicative of a motive to set fire to the premises in question, and such evidence is admissible. People v. Mooney, 132 Cal. 13, 63 P. 1070; State v. Harvey, 130 Iowa 394, 106 N.W. 938; Lane v. Commonwealth, 134 Ky. 519, 121 S.W. 486; Hooker v. State, 98 Md. 145, 1 Ann. Cas. 644. (b) That such evidence might also have supported a charge under Section 3284 cannot render it inadmissible; neither does its admission result in a variance. (4) The amount of insurance carried was not an issue; hence instructions B and C were properly refused even if they were not comments upon the evidence. (5) Instruction D was properly refused, because amply covered by the State's main instruction. (6) To justify reversal because of admission of remoteness testimony, the testimony must have tended to prejudice defendant in the eyes of the jury. The admission of such testimony is largely in the discretion of the court. State v. Fenley, 309 Mo. 520, 275 S.W. 36; State v. Burgess, 193 S.W. 821; State v. Allen, 246 S.W. 946. If, therefore, the admission of such testimony in the first instance was not reversible error, neither was it error to refuse Instruction E. (7) The instruction on alibi has been repeatedly approved by this court. State v. Bonner, 259 Mo. 342; State v. Anglin, 222 S.W. 776; State v. Shelton, 223 Mo. 118; State v. Brown, 247 Mo. 715. (8) Defendant may be cross-examined only on matters referred to in his examination in chief. Sec. 4036, R.S. 1919. But need not be limited to a mere categorical review of such matters. State v. Miller, 156 Mo. 76, 56 S.W. 907. The question was asked if defendant started the fire or knew anything of its origin. This opened a large field for cross-examination concerning his knowledge of its origin, and that knowledge may properly be shown by his conversation with others.
Defendant was charged with and convicted of the crime of arson in the second degree. His punishment was fixed by the jury at imprisonment in the state penitentiary for three years, and he has appealed.
As the sufficiency of the evidence to authorize conviction is strenuously challenged, a rather full statement of facts is required. The evidence was wholly circumstantial. Defendant operated a shoe store and shoe-repair shop on the first floor of a building at the corner of Hodiamont Avenue and Horton Street, in St. Louis, known as 1048 Hodiamont Avenue. With his wife and two children he occupied the second floor of the building as a residence. There was a third floor, but it was not shown to have been occupied at the time of the fire.
The value of defendant's stock of shoes, shoe-repairing machinery and household goods was not shown. Evidence was admitted concerning insurance policies issued to defendant. A policy for $2,000, covering at 1048 Hodiamont Avenue, was issued to defendant on March 5, 1928. Half of the insurance was on the merchandise and half on fixtures. On March 23, 1928, another $1000 policy of insurance was placed on defendant's household furniture. The fire occurred on the night of Sunday, April 29, 1928.
Evidence was offered by the State which tended to show the following additional facts: Two policemen were walking their beat on Hodiamont Avenue quite near defendant's premises at about 10:30 P.M. when an explosion was heard. By the time they could turn and look flames were shooting out of the front of defendant's store. The fire department was summoned immediately and arrived promptly. It was then found that the fire was general on the first floor and stairway and had spread to the second floor. The blaze seems to have been soon extinguished. The fire was burning furiously when first discovered, and the odor of gasoline was quite noticeable. After the fire was extinguished they discovered two glass jars, each of about five gallons' capacity, filled to within about two inches of the top with a brownish or reddish substance which smelled like gasoline. The contents had not yet ignited. Samples from each vessel were preserved. After qualifying as an expert, an assistant city chemist testified that he had analyzed the samples and found them to be gasoline. He further testified that it was possible for the gasoline in the open vessels to escape ignition under certain conditions, although the room containing it was in flames.
Defendant was seen on the morning of the fire putting some bundles in his automobile at his store. A shoe dropped out of one of the bundles. About noon of the same day he was seen putting in his automobile a large cloth-covered bundle, which appeared to be too large to go in easily. Thereupon defendant gave it a push with his foot and the bundle burst and a number of shoes fell out. One witness testified that he saw defendant going away from his store about ten minutes before the fire was discovered. Another witness living across the street saw defendant at his place about four or four-thirty P.M. of the day of the fire.
A Mrs. Brennan lived in the building at 6061 Horton Street adjoining defendant's premises. She and her roomers had retired and were asleep when the fire was discovered. Her premises were filled with smoke and some of the glass in the windows was broken by the heat of the fire. Her first floor furniture and curtains were damaged by smoke. Thus her inhabited dwelling house was endangered by the fire. On cross-examination, Mrs. Brennan said she had not seen defendant about his premises that day. However, she was busily engaged in getting dinner and afterward took a Sunday afternoon nap.
Defendant strenuously denied starting the fire or knowing anything whatever about its occurrence until after it had been extinguished. His evidence tended to show that he and his family left home at about two o'clock P.M. They drove to the home of defendant's brother-in-law and remained there until about five o'clock P.M. They then procured some sandwiches at a delicatessen and drove out to Forest Park, where they visited the Zoo, and then went to Art Hill in the same park, where they ate their lunch. There they met Mr. and Mrs. Jannis, whom they later drove to their home about a block from defendant's store. Defendant and his family did not go home at that time, but attended a Jewish show. From there they drove to the home of Joseph Rosenfield, who lived with his family at his confectionery store at 2955 Olive Street. Defendant and his family remained there until nearly eleven o'clock that night. It took them about twenty minutes more to drive to the garage, about a block away from his home, where defendant kept his automobile. It was after putting the car away that the fact of the occurrence of the fire was first known to defendant.
Defendant and his wife testified that he was not about his store or home from two o'clock P.M. until eleven o'clock that night or a little later. He specifically denied setting the premises on fire or putting bundles of shoes in his automobile at his store or being about the place in the afternoon or shortly before the fire. Defendant and his wife were corroborated concerning their presence at the different places during the times they testified to, except there was no outside corroboration of their attendance at the Jewish show somewhere between 7:30 and nine P.M. Testimony was also offered to show that defendant sustained a good reputation for honesty, integrity and as being a law-abiding citizen. The State did not attempt to rebut defendant's good character testimony.
In an arson case it is not sufficient to establish the corpus delicti to show that a fire occurred. There must be proof of circumstances from which the jury will be authorized to find the further fact that such fire was of incendiary origin. [5 C.J. 570 to Proof. 575, secs. 51 to 56; 2 R.C.L. 513, sec. 17.] In addition to proof of the corpus delicti, there must be proof tending to show that the accused was the incendiary. [2 R.C.L. 513, sec. 17.] Both the incendiary origin of the fire and the guilty agency of the accused may be established by circumstantial evidence. [State v. Ruckman, 253 Mo. 487, 161 S.W. 705; State v. Morney, 196 Mo. 43, 93 S.W. 1117; State v. Myer, 259 Mo. 306, 168 S.W. 717; State v. Sheline (Mo. Sup.), 225 S.W. 673; State v. Jackson (Mo. Sup.), 267 S.W. 855.]
The facts in the above cases are different from those in the case at bar, but said cases are authority for the proposition that both the corpus delicti and defendant's criminal agency may be established by circumstantial evidence. In the case at bar the proof of both of those essential facts rests entirely upon circumstantial evidence. Indeed, both of these important elements are established by the same facts in this case.
In determining whether or not there is sufficient evidence to support the verdict of guilt, it is our well established duty to accept as true all evidence in the record tending to show defendant's guilt, together with all inferences reasonably and properly to be drawn therefrom. The truth of the testimony and the reasonableness of the inferences to be drawn therefrom are exclusively for the jury. Tested by this rule, we are convinced that the circumstances shown and the inferences which may be reasonably drawn therefrom point so strongly to the incendiary origin of the fire and to defendant's guilty agency therein as to justify the verdict of guilty rendered by the jury.
While the value of defendant's stock of shoes, machinery and household furniture does not appear from the evidence, there is evidence which the jury had the right to believe tending to show that defendant was secretly removing a portion of his stock of shoes from his store on the day of and shortly before the fire. This fact, in connection with the recent insuring of his property for $3000, tended to show a motive for defendant to burn his property in order to collect the insurance. Defendant probably did not have a large stock of goods because he did all of his own work in the store, as well as in the shop, and it is unlikely that the stock of merchandise and his fixtures and furniture were of very great value.
The jury had the right to find that defendant was at his store within a few minutes before the discovery of the fire. Of course he had a right to be there; but if he was there his alibi evidence must have been false, and he had absolutely failed, after claiming to have been elsewhere, to account for his presence at the store so near the discovery of the fire.
The fire started in premises occupied and entirely controlled by defendant. It was under full headway when discovered. The odor of gasoline was then plainly noticeable and gasoline was found conveniently placed on the second floor, although it fortunately had not ignited. Defendant denied absolutely that there was gasoline in the jars on the second floor, instead of admitting its presence and seeking to give some reasonable explanation therefor. The inference sought to be brought out on cross-examination of the State's witnesses was that the fluid in the jars might have been water thrown into the bedroom in the effort to extinguish the fire. But there is no reason to believe the city chemist could be mistaken as to its character or that he would testify falsely concerning same. Hence, the jury had the right to find that the fluid in the vessels was gasoline and that defendant was testifying falsely concerning his knowledge of its presence in his bedroom. If the jury found that this material testimony was false, it had the right to view his other testimony in the same light.
No one except defendant was seen about the premises near the time of the fire. No one else is shown to have had access to the premises. The fire occurred at a time of the year when fires from furnaces or other heating appliances are not of common occurrence. The fire occurred eight or nine hours after defendant's testimony tended to show that use was made of any stove in his residence for cooking or any other purpose.
From all the foregoing facts and circumstances we think the jury was authorized to find not only that the fire was of incendiary origin, but that defendant himself was the incendiary. The jury had the right to believe the testimony offered by the State and to refuse to accept is true the testimony offered by defendant tending to show that he was not about the premises at a time when he could have set fire thereto.
Defendant contends that there was a fatal variance between the allegations of the information and the proof. The crime charged in the information was the setting fire to a building, not the subject of arson in the first degree, where the Variance. building fired is adjoining to or within the curtilage of an inhabited dwelling house, whereby such dwelling house shall be endangered, defined by Section 3284, Revised Statutes 1919, as arson in the second degree. Defendant insists that the proof tended to show a violation of Section 3288, Revised Statutes 1919, defining as arson in the third degree the firing of any building, etc., insured against loss or damage by fire with intent to defraud the insurer. It requires no argument to demonstrate that a person might burn an insured building to defraud the insurer and yet violate Section 3284, because the building fired happened to adjoin or be within the curtilage of an inhabited dwelling house which would be endangered thereby. The jury was authorized to find that such was the case here.
Defendant contends that the proof in this case showed conclusively that the building occupied by Mrs. Brennan and the building occupied by defendant in fact constituted a single dwelling house. With this contention we cannot agree. Mrs. Brennan testified that defendant lived "next door" to Adjoining her. There was a wall between the premises. They had House. separate yards. On cross-examination by able counsel, Mrs. Brennan testified as follows: "Q. Now, you live practically in the same building with Mr. Berkowitz? A. Just a wall between us. Q. Just a wall; just like a wall between one room and another? A. Yes."
It is a well known fact that in populous cities residence properties, as well as business houses, are built without an open space between them, and are separated by a party wall or, at most, contiguous walls. That is undoubtedly what Mrs. Brennan meant when she said there was a wall between the houses. It does not appear that there were doors connecting the two premises.
By Instruction 2 the jury was required to find, as alleged in the information, that defendant set fire to a building adjoining an inhabited dwelling house occupied by Mrs. Brennan, which was endangered by the fire. The jury was authorized to and did find such to be the facts, and defendant's contention of variance between the allegation and proof is without merit.
The State called Mrs. Grace Brown, who testified that she had been a tenant of defendant on the third floor of the building occupied by him and his family and that, about six weeks before the fire, defendant gave her notice to move. On being Notice to asked by Mrs. Brown the reason for the notice, Vacate. defendant said he wanted the premises and intended to make different arrangements. The admission of this testimony is urged as error on the ground that it was too remote and was immaterial. Defendant has cited numerous decisions from the Federal court and states other than Missouri setting forth the reasons generally for the exclusion of testimony which is so remote as to have no probative value upon the issue on trial. No fault can be found with the rule contended for, but we do not regard that rule as excluding the testimony here complained of. The testimony tended to show that defendant did not want the tenant about the premises for some reason and he did not see fit to tell the jury what reason he had for ordering her out. So far as the record discloses, he made no other arrangements concerning the use of the third floor prior to the fire. If the notice was given six weeks before the fire, it was soon after defendant had taken out $2,000 of his insurance. We think the testimony of notice to Mrs. Brown and the reasons therefor had some bearing on the question of preparation by defendant. The weight of the testimony was for the jury. We hold that it was admissible under this record.
Complaint is made because the State was permitted to cross-examine defendant concerning matters not referred to in his examination in chief. A witness named Mrs. Augustine was brought into the court room and defendant was asked if Cross-Examination he knew her and, upon admitting his of Defendant. acquaintance and stating that she lived across the street from his place, defendant was asked if he had not inquired of Mrs. Augustine whether the police department or any one else had spoken to her about the fire. Defendant was required to answer and said he did not remember and was then asked if, about three days after that, he did not have Mrs. Augustine come to his home and do some work and if he did not then ask her if she would come to court and be a witness for him and say he was not at his home on the Sunday of the fire and that he would pay her well for such testimony.
Defendant strenuously denied any such conversation. Thereupon, the State called Mrs. Augustine as a witness and sought to show by her the occurrence of such a conversation. The trial court ruled it was not proper rebuttal. The inquiry was competent to affect defendant's credibility as a witness. Had he admitted that he had sought to hire Mrs. Augustine to testify as indicated, it would have shown that defendant was attempting to manufacture evidence. No motion was thereafter made to strike out the cross-examination complained of. The defendant is not in position to complain in this court and the assignment is overruled.
Complaint is made because the court permitted hypothetical questions to be asked of the assistant city chemist which did not embrace the correct facts in evidence. When such objection was made the assistant circuit attorney requested counsel for defendant to designate the inaccuracies and Hypothetical omissions in the hypothetical questions. Counsel Question. attempted to do so, and the questions were reframed. We are unable to agree with counsel for defendant that the question of the inflammability of gasoline was not a proper subject for expert testimony. At most, defendant could not have been prejudiced by the ruling. The expert chemist testified that the fluid in the jars was gasoline and the jury had the right to find that such was its character. There was no countervailing evidence. The undisputed fact then remained that the gasoline in the jars was not ignited, although the jars were open in a room, the contents of which had become quite largely ignited. Any abstract theories as to whether gasoline would or would not ignite under such circumstances would therefore have very little probative value. There is no merit in the assignment.
Complaint is made because the court refused to give defendant's Instruction B, withdrawing from the jury the right to consider that defendant had insurance on his property. While we fail to find any evidence in the record showing the value of Insurance. defendant's furniture, stock and fixtures, we think the jury had the right to consider, on the question of motive, the fact of insurance and the amount thereof in connection with its recent issuance, and the evidence that defendant was secretly removing part of his stock of shoes on the day of the fire. Instruction C was properly refused because there was no evidence upon which to base it.
Defendant assigns as error the giving of Instruction 3, reading as follows:
"The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed (if you find a crime Alibi. was committed) you will acquit the defendant."
The argument is that the instruction singled out the evidence on alibi and required such evidence alone to raise a reasonable doubt of defendant's guilt before he was entitled to an acquittal, when the instruction should have told the jury that the defendant must be acquitted if the evidence as to alibi, in connection with the other proof in the case, raised a reasonable doubt of his presence when the premises were set on fire, if they were.
Defendant cites cases from other states and two Missouri decisions. Our own decisions are ample for our purpose. In State v. Taylor, 118 Mo. 153, 24 S.W. 449, an instruction on alibi in proper form, offered by defendant, was refused, and the State sought to sustain the judgment because that subject had been properly covered in an instruction given by the court. The given instruction required the jury to find that defendant was in some other place, that is, he was required to prove his alibi by a preponderance of the testimony, instead of merely requiring defendant to raise a reasonable doubt of his presence at the scene of the crime. There is nothing in the Taylor case to cast any doubt upon the correctness of Instruction 3, here complained of.
In State v. Crowell, 149 Mo. 391, 50 S.W. 893, the other Missouri case cited by defendant, the trial court referred to the defense of alibi as "a well-worn defense." This was properly held to be an improper disparagement of the defense of alibi; but the case is not authority for defendant's contention here.
The instruction here criticised is in the identical language of alibi instructions specifically approved in State v. Davis, 186 Mo. 533, 85 S.W. 354; State v. Brown, 247 Mo. 715, 153 S.W. 1027, and State v. Bonner, 259 Mo. 342, 168 S.W. 591, and is in substantially the language of an alibi instruction approved in State v. Adair, 160 Mo. 391, 61 S.W. 187. The assignment is without merit.
Complaint is made of the refusal of defendant's Instruction D, as follows:
"The court instructs the jury that under the allegations of the information filed against defendant, the State is bound to prove beyond reasonable doubt not only that the defendant did set fire to and burn a building situated at 1048 Intent to Endanger Hodiamont Avenue, but it must go further and Adjoining Dwelling. prove that the building was so set on fire by defendant, with the felonious intent of endangering the building occupied by the witness Catherine Brennan. If the evidence fails to show beyond reasonable doubt that it was the defendant's intent or state of mind to cause the building occupied by Catherine Brennan to be endangered, then you must acquit the defendant." (Italics ours.)
It is said that the felonious intent on defendant's part of endangering the adjoining inhabited dwelling house is a necessary element of the crime defined by section 3284, Revised Statutes 1919. Defendant cites no cases in support of his contention and we are not impressed with its soundness. A mere reading of the statute appears to refute the contention. The endangering of an adjoining dwelling house must be shown as the result of the willful and intentional act of setting fire to a building, not the subject of arson in the first degree, within the curtilage of or adjoining the inhabited dwelling house endangered. A person may set fire to a building described in Section 3284 from many different motives. Such, for example, as revenge or to collect insurance. If the result of a willful act of setting fire to the described building is to endanger the inhabited dwelling house, the intent to set fire to such building is all that need be found by the jury. Instruction D was therefore properly refused.
Defendant makes complaint of the argument of the assistant prosecuting attorney in several particulars set out in the bill of exceptions and the brief. We have carefully examined the entire record relating to this subject and find that in each and every instance the trial court sustained defendant's Argument objection to the argument now complained of. When to Jury. requested to reprimand counsel, the trial court at least mildly complied and defendant failed to except to the sufficiency of the reprimand. Hence, defendant is not in position here to urge such alleged improper argument as ground for the reversal of the judgment.
We have carefully considered all of the assignments of error made by defendant. We find no reversible error in any of them. The evidence was sufficient to justify the jury in finding the defendant guilty. No complaint is made of the sufficiency of the information, verdict or judgment. Nevertheless we have examined them and find them in every way sufficient.
The judgment is affirmed. All concur.