State v. Mills
State v. Mills
Opinion of the Court
Defendant appeals from his conviction for arson and raises two points of alleged trial error which he contends warrant a new trial: 1) that inadmissible hearsay testimony was permitted; 2) that the State’s verdict directing arson instruction was an improper deviation from MAI-CR 7.02. We affirm the judgment.
On November 16, 1973, St. Louis police officers Daniel Cregan and John Clobes responded to a call and found the rear porch of the residence of defendant’s mother in flames. Firemen were quickly able to extinguish the flames. After talking with defendant’s mother, Mrs. Gloverstene Ore, Officers Cregan and Clobes arrested defendant near the scene of the fire. Officer Cregan testified at trial that upon arresting defendant, he gave defendant the appropriate Miranda
Defendant argues that the testimony of the police officers of what Mrs. Ore had related to them about defendant’s involvement with the fire was inadmissible hearsay. The State asserts that Mrs. Ore’s statement to the police that her son had started the fire was produced by the event of the fire and the spontaneous result of the event, thereby falling within the res gestae exception to the hearsay rule.
Defendant’s second claim of error is that the verdict directing instruction did not conform with MAI-CR 7.02. The instruction given read as follows:
“If you find and believe from the evidence beyond a reasonable doubt:
“First, that on November 16, 1973, in the City of St. Louis, State of Missouri, the defendant set fire to the dwelling at 2355 Hickory Street in which human beings were present, and
“Second, that he did so intentionally, then you will find the defendant guilty of arson of an occupied dwelling.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” (emphasis added)
The emphasized portion is not included in MAI-CR 7.02.
Under the current MAI-CR instruction and under § 560.010 RSMo 1969, V.A.M.S., the State is relieved of the burden of proving the presence of humans in an arson of a dwelling house case. Thus, the State undertook the added burden of establishing that humans were present in the dwelling which defendant set afire. In fact, the evidence was clear and uncontro-verted that humans were in the house at the time defendant set fire to it. There was no burden placed on the defendant by the instruction requiring the additional finding, and the added words were merely surplusage. State v. Davis, 482 S.W.2d 486 (Mo. 1972); State v. Hawkins, 418 S. W.2d 921 (Mo. banc 1967). The instruction which added to the State’s burden was, at most, harmless, nonpre judicial error. State v. Cline, 452 S.W.2d 190 (Mo. 1970); State v. Rice, 511 S.W.2d 444 (Mo. 1974). The defendant may not complain of alleged error in his favor. State v. Cox, 508 S.W.2d 716 (Mo.App. 1974).
The judgment is affirmed.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Concurring Opinion
(concurring).
I concur, but reluctantly. Because of the newness of MAI-CR, conceivably attorneys have not become too familiar with the usage of the instructions contained therein. Consequently, and maybe justly so, the majority has excused the state from a literal compliance with MAI-CR 7.02. On the other hand, MAI-CR 7.02 makes no reference to “in which human beings were present” as set forth in paragraph First. Nor is there a reference to “an occupied dwelling” as contained in paragraph Second.
Reference
- Full Case Name
- STATE of Missouri, Plaintiff-Respondent, v. Theodore Roosevelt MILLS, Defendant-Appellant
- Cited By
- 20 cases
- Status
- Published