238 S.W. 786 | Mo. | 1922
The defendant and Edwin O'Neil and Charles R. Golden, alias Murphy, were charged by indictment with having, on September 4, 1920, feloniously assaulted Frank Nissen, George McNalley, Fred B. Ford and Patrick J. Donovan, policemen of Kansas City, with intent to kill. Thompson was tried separately, found guilty and sentenced to two years' imprisonment in the penitentiary, from which he appealed.
Thompson, who had lost his left arm, owned a Ford car and kept a jitney stand at 15th and Charlotte Streets. O'Neil and Golden, with two women, at about three a.m. of September 4, 1920, engaged him to take them to some place between 37th and 38th Streets on Indiana Avenue. It was a dark, rainy night. Nissen, McNalley and Ford testified that about 3:30 that morning they saw a car coming from the north on Indiana Avenue between 37th and 38th Streets, which appeared to be zigzagging across the street, "apparently looking for street numbers." The officers were in a Ford touring car equipped with a siren. They turned off their lights and waited until this suspicious car came up. They called to the driver to stop; that they were officers. Instead of stopping the driver drove rapidly away. The officers pursued the fleeing car at about thirty miles an hour, blowing the siren continuously. Officer McNalley recognized the defendant, *119 who was driving the car. During the chase and when the officers' car was from twenty to seventy-five or one hundred feet in the rear, three shots, coming from the left side of defendant's car, were fired. The officers saw the flashes, but no one saw who fired the shots. The first shot pierced the windshield in front of Ford, who was driving the officers' car. The other shots struck the top of the car. As soon as the first flash was seen, the officers fired repeatedly at the defendant's car. One shot punctured the left rear tire and the car stopped at the curb. The officers ordered the defendants out, searched them and found a revolver in the front seat of defendant's car, which contained three cartridges and three empty shells. Defendant said they were out getting fresh air; that the car was his and that he used it for livery and taxi business.
Defendant testified that he had been driving his car for taxi service for two years; that he owned no gun; that he saw no gun, nor heard one fired from his car that night, and knew of no one intending to shoot; that he did not see the police take a gun out of his car. He saw no one and no one spoke to him until the police car came up behind him and began to shoot into the rear of his car; that he then put on his brakes, ran into the curb and stopped as soon as he could. One tire was down and the street was slick. He knew McNalley. He further testified that he could not drive a Ford car and shoot at the same time. Officer Ford also testified that he didn't think that a man on a slippery night like that was could run a car thirty or thirty-five miles an hour with one hand and with the same hand shoot a revolver to the rear or front.
I. There was no evidence tending to prove that the defendant fired either one of the shots which the officers testified were fired from the defendant's car. In fact, the evidenceFailure for the State is that a one-armed man, driving a Fordof Proof. car on a slippery street at the high rate of speed at which defendant's *120
car was being driven, could not have fired the shots either in front or to the rear. The officers testified they did not see who fired the shots. Nor was there any evidence tending to prove that the defendant participated in the act. Where it is sought to hold one person responsible for the act of another, it ought to be shown that he authorized such act of in some way aided or directed it. [Kelly's Crim. Law, sec. 368.] Usually, a prima-facie case as to such conspiracy must first be made out before the declarations or acts of the co-conspirators are admissible against one another. [State v. Swain,
The most that the evidence tended to prove was that an attempt to escape the pursuing officers was made, but proof of a common design to commit another offense is not proof of a conspiracy to commit the crime with which the defendant was charged. [State v. Kennedy,
The judgment is reversed. All concur.
