From the Circuit Court of Jasper County; Criminal Appeal; Judge Herbert C. Casteel.
Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.
The opinion of the court was delivered by: Greene
Defendant, Earl Williams, was convicted of second degree arson § 569.050, RSMo 1978, and sentenced to five years' imprisonment.
The state's theory was that Williams, facing a loss of income and an increase in his monthly home mortgage payment, burned the home of Williams and his wife to collect the fire insurance on the property. There was considerable evidence that the fire was "set" and that gasoline had been used by the arsonist to start and spread the fire. Defendant's theory was that the fire was caused by a natural gas explosion resulting from a faulty furnace. The jury rejected the defendant's contention of accidental burning. There was sufficient circumstantial evidence to support the conviction.
Defendant's first contention on appeal is that the trial court erred in refusing to let witness John Junior Williams give his opinion as to the point of origin of the fire. The witness, uncle of the defendant, had been a member of the Joplin, Missouri fire department for 20 years, and also owned a construction company. While he had considerable experience fighting house fires, he had no training in arson investigation or detection. He had studied what firemen called "the red books." When asked if these books contained information on arson investigation, he replied, "Well, not a great deal, but it tells you what to kind of look for and stuff on this sort. It don't exactly pinpoint arson. . . ."
The trial court permitted the witness to give his opinion that the house was poorly constructed and that the electrical wiring was "shoddy", based on his experience as a home builder, but refused to let him give an opinion as to where the fire originated, without further qualification as an arson detection specialist.
Generally speaking, the admission or rejection of expert testimony is discretionary with the trial Judge [State v. Purnell, 621 S.W.2d 277, 281 (Mo. 1981)], and absent a clear-cut abuse of that discretion, the trial Judge's ruling on the matter is rarely disturbed on appeal. We find no such abuse of discretion under the facts related here. Experience fighting fires does not, of and by itself, qualify one as an expert in arson detection. The point relied on is denied.
Defendant's final claim on appeal is that the trial court erred by giving instruction MAI-CR2d 1.10 *fn1 (the "hammer" instruction) under the facts of this case. The events leading up to the giving of the instruction are as follows. After hearing all of the evidence and being instructed by the trial court, the jury retired to deliberate at 2:42 p.m. At 5:10 p.m., the jury sent the trial Judge a note that read, "Hung jury. Terry Hall." The jury was returned into court and the following statements were made:
"The Court: Mr. Hall, have you been elected the foreman of the jury?
The Court: I don't want you to tell me how they stand. I don't want to know how many stand for acquittal and how many stand for a verdict of guilty, but can you tell me numerically how it is; six-six or /--?
Mr. Hall: Numerically, eleven-one.
The Court: Eleven-one. Do you feel that further deliberations would in any way help resolve the conflict?
Mr. Hall: Really, I don't think so. The person that voted by themselves was pretty--seemed to be pretty firm in their ...