This appeal is from a judgment in the Circuit Court of Randolph County upon conviction of defendant of arson in the second degree, under Section 3288, Revised Statutes 1919.
The evidence for the State showed that the defendant was in the real estate business in Moberly, and lived there; that he owned a double-store building, fixtures, and stock in Clark. a small town on the C. A. *Page 396 and Wabash railroads, in the southeast part of Randolph County. He carried twelve thousand dollars insurance on the property with the Queen Insurance Company of New York. On March 28, 1920, the store building and stock were consumed by fire, which, it is alleged by the State, defendant caused for the purpose of defrauding the insurance company.
The case for the State was made out chiefly on the testimony of one George M. Hines, a young man eighteen years old, who resided in Moberly. Hines testified that the defendant engaged him to go to Clark and set fire to the store, for which he agreed to give Hines fifty dollars. Defendant told Hines that he had an old stock of goods that he could not get rid of and he wanted to get the insurance. He visited the store in Clark about once a week.
In the afternoon of March 27th, Hines went by Wabash train from Moberly to Clark; he had borrowed a suit case, in which he carried an old suit of clothes to wear back. Under the defendant's directions he represented himself to be a salesman for the Cudahy Packing Company. When he arrived at the store the defendant concealed him on the second floor, brought him food, a revolver, a pair of shoes, some cigars, a flashlight and an Ingersoll watch, and instructed him to wait until the next morning at two o'clock, and then to pour kerosene over the floor of the store and set fire to it. Three two-gallon cans of kerosene were on the upstairs balcony for his use. The defendant then left Clark on the night train at ten o'clock for Moberly. Hines waited until 2:30 a.m., March 28th, then carried out his instructions, by pouring kerosene over the floor and applying matches to it. He passed out of the back door and through the fields to the C. A. tracks and arrived at Moberly about 6:30 that morning. He went to the defendant's office and received from the defendant twenty dollars; later he received thirty dollars. The defendant collected $11,500 insurance from the Queen Insurance Company. *Page 397
The State offered evidence to show the value of the buildings was from twenty-five hundred to four thousand dollars, and that the stock did not exceed three thousand dollars in value. The stock had been traded and brought from another place, and had been traded once or twice before that; a good deal of it had been sold.
A week or so before the fire the defendant sold some brooms at less than cost. He also had some jewelry, but no trace of it could be found after the fire. On the day before the fire the defendant bought a fifty-gallon barrel of coal oil, which was delivered at his store.
Hines's roommate testified that Hines was not in his room on the night of the fire, and was not seen by him until the next day. One Lloyd Hopson testified that late in the afternoon of the day before the fire he was with Hines in Moberly, and Hines at that time told him of his purpose and arrangement with Shields to burn the store for fifty dollars.
It was further shown that the defendant had been trying to sell his stock.
In defense the defendant offered evidence to show that his store and goods were worth the amount of insurance, or more. He denied any arrangement with Hines. Testimony was offered to show that the reputation of George Hines for truth and veracity was bad, and that the reputation of Lloyd Hopson also was bad. Hines on the stand admitted that he was paroled from a sentence in the penitentiary for grand larceny. Hopson was shown to be under arrest at the time of the trial.
After the verdict the defendant filed a motion for new trial, appending an affidavit of George Hines, sworn to on the thirtieth day of April, 1921, in which Hines swore that he testified falsely at the trial, and that he didn't burn the store of Shields at Clark on the 28th day of March, and that Shields did not pay him fifty dollars for burning the store; that he testified as he did in order to protect Lloyd Hopson. Also attached to the motion for new trial was the affidavit of George W. *Page 398 Brown, who testified that he saw George Hines on the 29th day of April, 1921, in the depot at Moberly; that Hines said to him that the testified falsely at the trial and did it to save Lloyd Hopson; that he didn't burn the building at all. Before the motion for new trial was passed upon, the State procured a counter affidavit from George Hines in which he said he told the truth at the trial, and that his affidavit which he had furnished the defendant to file with his motion was not true; that it was urged on him by a promise that the defendant would pay him and get him free in a short time, and that defendant would see that Hopson would not get anything. The court overruled the motion.
I. Before the trial began the defendant filed his motion requesting the court to require the defendant to elect upon which count of the information he would go to trial. The grounds of the motion were, (1), that the two counts therein were inconsistent and evidence which would tend to prove one ofInformation: said counts would disprove the other; (2), thatPrincipal in the first count defendant is charged as anand Accessory. accessory, while in the second count he is charged with the commission of a felony, as principal.
The information filed by Redick O'Bryan, Prosecuting Attorney of Randolph County, states:
"That on the 28th day of March, 1920, George M. Hines did unlawfully, wilfully, maliciously and feloniously, set fire to and burn a double-store building and the contents thereof, the property of Lonnie B. Shields, with intent then and there to defraud . . . the Queen Insurance Company of America, the insurer of said double-store building, . . . which said double-store building, etc., were then and there insured unto the said Lonnie B. Shields against loss and damage by fire in the sum of twelve thousand dollars by the Queen Insurance Company of America, . . . and the said Redick O'Bryan further charges and informs the court that the *Page 399 defendant Lonnie B. Shields, before the setting fire to, and burning the said double store and contents, on the 27th day of March, 1920, did unlawfully . . . and feloniously . . . procure, hire and command said George M. Hines to commit said felony and to set fire to, etc., . . . with intent then and there and thereby to defraud . . . the Queen Insurance Company of America, the insurer of said property."
Second Count: "For a second count the said prosecuting attorney . . . informs the court that the defendant Lonnie B. Shields and one George M. Hines on the 28th day of March, 1920, at the said county of Randolph, did then and there, unlawfully . . . feloniously set fire to, burn and consume, . . . with intent then and there and thereby to defraud, damage and prejudice the Queen Insurance Company of America, the insurer of said building and the contents thereof."
The first count charges the defendant with burning the property by hiring George M. Hines to do the deed and that George M. Hines did the deed. The second count charges that the defendant and George M. Hines committed the offense.
It is claimed that the first count charges defendant as accessory, while the second count charges him as principal.
Section 3687, Revised Statutes 1919, provides that every person who shall be principal in the commission of a felony, or who shall be accessory to any murder or other felony before the fact, shall upon conviction be adjudged guilty of the same offense in the same degree and be charged, tried, convicted and punished in the same manner as the principal in the first degree.
An accessory before the fact may be "charged" in the same manner as a principal in the first degree. It has been held that this statute abolishes the difference between the accessories before the fact and the principal. An indictment for a felony in such case may either allege the matter according to the facts, or charge both *Page 400 the principal and the accessory as principals in the first degree. That is what is done in this case. One count charges the defendant according to the facts, and the other charges him with his co-conspirator as principal. [State v. Schuchmann, 133 Mo. l.c. 125; State v. Anderson, 89 Mo. l.c. 333; State v. Edgen, 181 Mo. l.c. 590; State v. Fredericks and Reed, 85 Mo. 145, l.c. 151; State v. Carroll, 288 Mo. 392, 232 S.W. l.c. 701.]
Under these authorities the purpose of the statute is to fix the guilt where it belongs. What one does by another he does himself. In this case the information charges that the defendant committed the crime through his instrument George M. Hines, and the other count charges that the two did it. Defendant thereby was fully apprised of the facts which he is called upon to meet in the trial. The two methods of alleging the offense are simply in the alternative, and each refers exactly to the same act. The motion to elect, therefore, was properly overruled.
II. Appellant in his brief here makes some points against the information not mentioned in the motion to elect, one of which may be noticed, to the effect that the information is bad because it does not charge that the act was done withFelonious felonious intent. The crime charged is statutory. AnIntent. indictment charging a statutory offense is sufficient where the language of the statute is followed, if the statute sets forth all of the constituent elements of the offense. [State v. Perrigin, 258 Mo. l.c. 236; State v. Bersch, 276 Mo. l.c. 412; State v. Moten, 276 Mo. 357; State v. Hunter,171 Mo. 439; 1 R.C.L. p. 151.]
The information charges that the defendant did wilfully, unlawfully, maliciously and feloniously incite, move and procure the said George M. Hines . . . with intent then and there and thereby to defraud, damage and prejudice the Queen Insurance Company, the insurer. It is the language of the statute. An instruction *Page 401 need not use the word "feloniously" or "felonious" in requiring a finding by the jury of the criminal intent, where the facts to be found would necessarily constitute a felony. [State v. T.B. Smith, 250 Mo. l.c. 371; State v. Hillebrand, 285 Mo. 290, 225 S.W. l.c. 1007.] Likewise it is not necessary to allege that an act was done feloniously where the acts alleged necessarily constituted a felony. [State v. McWilliams, 267 Mo. l.c. 449.] The crime here declared by the statute to be a felony is setting fire to a certain property mentioned "with intent to defraud" etc. The intent to defraud the insurer is the felonious intent necessary to characterize the crime.
It is also assigned as error that the court overruled defendant's plea in abatement to the second count, which plea was presented on the ground that defendant was not given a preliminary hearing. It was not necessary that the information should show on its face a preliminary hearing wasPreliminary granted. It was necessary for the defendant toHearing. present proof in support of his plea. No such proof is shown by the record. [Ex parte Buckley,215 Mo. 93; Sec. 3848, R.S. 1919.]
III. In support of his motion for new trial appellant offered the affidavit of two jurors for the purpose of showing that one juror, namely Dowdy, had qualified by swearing falsely when he was impaneled, and had made statements in theImpeachment deliberations of the jury which showed his prejudiceof Verdict. against the defendant.
The affidavits of jurors may be received for the purpose of sustaining a verdict which on its face is irregular. [Hays v. Hogan, 273 Mo. 26.] But the rule is uniform that a jury may not impeach its own verdict; the testimony of jurors will not be received for the purpose of impeaching it. [Green v. Terminal Railroad Assn., 211 Mo. 18, l.c. 30; Devoy v. Transit Co., 192 Mo. l.c. 218; Lauff v. Kennard Carpet Co., 195 S.W. l.c. 59; *Page 402 State v. Burks, 132 Mo. l.c. 368-9; Leahy v. Tesson, 108 Mo. App. l.c. 373; Pratte v. Coffman, 33 Mo. l.c. 78.] It was entirely proper for the court to overrule that objection to the verdict.
IV. Defendant introduced a witness who was asked to state if he had made an estimate of what it would cost to rebuild the buildings burned. This evidence was excluded, and error is assigned to the ruling. In some cases it hasCost to Rebuild been held that where a question of value isBurnt Store. under consideration the cost of the article may be shown for the purpose of throwing light on the market value. [Conner v. Railroad, 181 Mo. l.c. 419; Orchard Co. v. Railroad, 173 Mo. App. l.c. 456-7; Matthews v. Railroad,142 Mo. 666.] However, the witness in this case was allowed to state that he was acquainted with the reasonable market value of real estate in Clark, and that the reasonable market value of the two buildings mentioned was nine thousand dollars. He was asked upon what he based that valuation. He answered that he knew what it would cost to rebuild them. So, the defendant got before the jury the very fact that he was attempting to prove, and there was no error.
V. The appellant assigns error to the admission of the testimony of Lloyd Hopson who swore that late in the afternoon of March 27th, the day before the fire, he had a talk with George M. Hines, and Hines then told him about his arrangement with defendant to burn the store, and that he intendedStatements of to carry out the arrangement that night. The ruleConspirator. is that where a conspiracy to do an unlawful act is shown by the evidence, a statement made by one of the parties to the conspiracy during the time of its existence and bearing upon its object and purpose, whether stated in the presence of other conspirators or not, is admissible as evidence against all. [State v. Darling, 199 Mo. *Page 403 l.c. 201; State v. Fields, 234 Mo. l.c. 623; State v. Bersch, 276 Mo. l.c. 414; State v. Bobbitt, 228 Mo. l.c. 266; State v. Roberts, 201 Mo. l.c. 727-728.] The evidence was admissible.
VI. Error is assigned to the cross-examination of the defendant. It is claimed that such cross-examination was improper, as not relating to matters touched upon in his direct examination. No particular part of his evidence is pointed out by appellant to which this objection relates. HeCross-Examination was asked in chief whether he ever saw Georgeof Defendant. Hines in the buildings on the Saturday before the fire, and whether he ever walked on Reed Street with Hines at any time in his life, and if he at any time in his life met George Hines at his own office in Moberly, or atany other place, or if he ever paid George Hines any money, to all of which he answered in the negative. After careful examination of the cross-examination we find that many questions were asked of the witness touching his meeting and conferring with George Hines, for all of which a sufficient basis was presented in the direct examination. We find no error in that respect.
VII. In regard to the testimony of an accomplice the court instructed the jury that such testimony should be considered by the jury with great caution, "unless it is corroborated by other evidence as to matters material to the issues." Appellant claims this is an error, because it in effect directs theTestimony of jury that it is not necessary for the jury toAccomplice. consider such evidence with caution if it is corroborated. The appellant is not in position to urge this objection because he offered an instruction to the effect that the testimony of George M. Hines (the alleged conspirator) was admissible. "Yet his evidence, uncorroborated by some person or persons not implicated in the crime as to matters material to the issues . . . ought to be *Page 404 received with great caution by the jury." We see no difference in effect between the two instructions; if that given by the court was objectionable for the reason stated, the one requested by the defendant was objectionable for the same reason. [State v. Bobbitt, 215 Mo. l.c. 41-42, and cases cited.]
VIII. The court gave the following instruction numbered two:
"The court instructs the jury that if you believe from the other evidence that a conspiracy or agreement to set fire to or burn the buildings mentioned in the evidence existed between the witness George M. Hines, and the defendant, at and prior to the time of the alleged conversation of the witness Hines with the witness Lloyd Hopson, testified to by the said witness, Lloyd Hopson, then you may consider the evidence of such conversation along with the other evidence in the case, but on the other hand, if you believe that no such conspiracy or agreement existed at the time of the alleged conversation, then you should wholly disregard the evidence of such conversation in arriving at a verdict."
It will be remembered that Lloyd Hopson was the youth who had a bad record and who testified to statements made to him by George M. Hines the evening before the fire as to the latter's purpose and agreement with the defendant. This instruction is clearly a comment upon the evidence. It singles out the testimony of Lloyd Hopson and places undue emphasis upon it. In effect it tells the jury to believe Hopson if Shields had an arrangement with Hines. Such an instruction has frequently been condemned by this court. [Burton v. Holman, 288 Mo. 70, 231 S.W. 630, l.c. 634; Andrew v. Linebaugh, 260 Mo. l.c. 663; State v. Adkins, 284 Mo. l.c. 687-688; Littig v. Heating Co., 237 S.W. l.c. 785.]
The court likewise gave a general instruction covering all the facts and authorizing a verdict of guilty. The defendant offered the converse of this instruction *Page 405 which included a statement of the presumption of innocence. It would have been fair to the defendant to allow that instruction; he was entitled to a converse of instructions given for the plaintiff.
The defendant also offered and the court refused an instruction upon motive, which it would have been entirely proper for the court to give, for there was evidence tending to show the defendant would have no material gain by reason of the fire. While there was sufficient evidence to show motive, it nevertheless was a controverted issue and the instruction asked by the defendant should have been given.
For the reasons mentioned the judgment is reversed and the cause remanded. Railey, C., concurs; Reeves, C., absent.