164 Mo. 539 | Mo. | 1901
— Under an indictment charging defendant and one Lem Brown jointly with assaulting and shooting one Edward C. Bell with a pistol, with malice aforethought, defendant was convicted, and his punishment fixed at five years’ imprisonment in the penitentiary. After unavailing motion for a new trial defendant appeals.
On the evening of December 31, 1899, Edward O. Bell was the conductor of a Laclede avenue street car running east on Market street from Jefferson avenue to Thirteenth street in the city of St. Louis, and about nine o’clock of that evening defendant and another negro boarded the car as it was going east [west of the Union Station). The conductor collected of them their fare, and when he did so they spoke of being let off at Fourteenth street, but the car did not stop there, and they did not get off, but when the car approached Thirteenth street further on, they arose from their seats and started to get off. Defendant was in advance, and abused the conductor, and in so doing used as vile epithets as ever escaped the lips of man, and when he stepped down on the lower step of the car and was standing there, he remarked to the conductor, “I got a notion to smash you,” and stepped up with his foot on another step, and made a grab at him. The conductor then testified in this connection: “And the larger one, the black one, was standing right near me, and this one (defendant) made a strike at me, and I dodged back from him and dodged right against the other one. Then he (defendant) came -up on top of the step for me and struck at me. Then, to make myself room and get away, I struck at him and jerked the door open at the same- time and went on the inside of the car to get help and get away from the two of them. I just struck at his face, just to make myself room to keep him away from me as long as possible, until I could get away, because I was between the two of them. That is the reason I struck,
On cross-examination he said: ''Brown, co-indictee, never spoke a word, that I remember of. I know that the defendant was knocked off the car, knocked out of my reach. Didn’t see his hat knocked off; know he came back bareheaded. The car was standing still when I knocked him off. I struck him to get away and went in the car. I saw him coming towards the car again with his hat off. He was about six feet from the car when I saw him coming, bareheaded. At the time, the other man was standing between me and the rail at the platform; that was the last place I saw him, and to my knowledge have never seen him since.”
Tames F. Milligan, after testifying that he was a passenger on the car, saw no difficulty, but said: ''All I seen, along between Thirteenth and Fourteenth somewhere, the car stopped and he pulled a revolver out and shot. I never seen any fuss
Anna McDonald was a passenger on the car, sitting near the front. “When we got to about Fourteenth street, someone said something about stopping at Fourteenth street, and the conductor answered in a mild way that he didn’t know they wanted to get off there, and then this party (whoever was doing the talking) said: ‘That’s the way with all you conductors,’ using a curse word. The car did not stop at Fourteenth street; to my knowledge it didn’t stop there. Didn’t see the men go out of the ear, but everything was quiet after that. It couldn’t be over a minute when the shot was fired; think the car was moving at the time. The conductor was stooping down when some oneealled out, ‘Look out!’ and just then the shot was fired. Saw no one in the aisle but the conductor. Don’t know who fired the shot;' can’t say whether it was fired inside the car or from the outside.”
S. A. Bruton was also a passenger; sat with his back to
C. A. Lewis testified that on the night and at the time of the shooting, about ten minutes to 9, he was in the pawnshop of one Gallant at Targee and Market (about two1 blocks from the car) when appellant came in and bought a cap from Gallant and told Gallant “not to let anybody know that he had been there.” He said, “In ease anybody comes here, tell Am you haven’t seen me.” “I heard the shot and it was eight or ten minutes after the shot that defendant was in there. He made no explanation at all. He had a cut about here (indicating) ; it was very small. The blood was coming out of it. He said he was in a hurry, to give him a cap quick. He had two other colored men with him. After he got the cap he walked out again.” On cross-examination he stated that Mr. Gallant was then present in the circuit attorney’s office. Gallant knew the men who were with the defendant, “because they have been coming in his house all the time. The defendant had nothing on his head at the time; made no remark about his hat and gave no reason why he wanted a cap.”
Officer Keeley arrested appellant at 1418 Chestnut street, on the second floor (about three blocks from the scene of the shooting), after 12 o’clock, midnight. “Saw a hat at Murrell’s (between Thirteenth and Fourteenth, on Market) with initials, “T. V.’ on outside. Valle was sleeping on the floor. Noticed defendant’s face — across the nose it seemed somebody had struck him, because it was swelled and bleeding, about the bridge of the nose. He made a statement that he had had some trouble on a street car, and the conductor knocked him off
George Bell, a barber at 1401 Market street, testified that he was coining up Market street, between Thirteenth and Centre; a Laclede avenue car was passing; hearing some unusual loud talk on the car, noticed the car, and during the time there were two or three men standing on the rear platform; there was a blow struck and a man fell from the car; during the time a shot was fired and it seemed as if it was from the inside of the car; it was while this man (defendant) was on the ground that the shot was fired; he was in a kind of a half raised position, getting up, wiping his face with his right hand —a handkerchief in his hands, and during that time a shot was fired; and there was a tall dark fellow sprang from the car, and goes down Centre street in a run; don’t think the man on the ground had any hat on.
Dr. Waldo Briggs testified as to his treatment of defendant for a wound, a lacerated injury over the root of the'nose, seeming to have been by a blunt instrument; shouldn’t think it was made simply by the hand; the injury extended into the bone; would swear positively that it was not done with the fist, but by some blunt instrument, though, it may have been by a ring on the hand. Though not certain as to the date of the treatment, it was shown to have been prior to the eighth day of January (within a week of the shooting) by his subpoena to appear as a witness on the preliminary examination in the court of criminal correction on that date.
Eugene Isabel testified that he was in front of Bridge-water’s saloon, 1309 Market, when the trouble happened; saw the shooting, “when he hit that man and knocked him off the car, and as he did so, he run back into the car by the stove and stooped for some thing; as he rose up he looked as if he was going to come back out again. As he rose to straighten up
Lizzie Jackson testified that she was a passenger on the car, saw the two men get on the car and sit down. Saw the other witnesses there; there were no children on the car; after we passed Thirteenth street noticed them getting up to go out; didn’t hear anything they said at all; heard mumbling on the back of the car, but didn’t -hear what was said because the door was closed; the car was slacking up, it was almost at the switch at the time this occurred; saw the conductor strike at some one and then he walked in, then walked to'the stove and was leaning over the stove and all at once the gentleman- that was with .him (defendant) steps up and pulls the door open with his left hand and shoots. The man that shot was a dark brown man, a little taller than defendant. Saw’ something in conductor’s hand at the time, don’t know what it was; there was something picked up by a gentleman in the car and given to the motorman.
The appellant testified in his own behalf that he and Lem Brown got on the car at Jefferson avenue and Market, and when the conductor collected their fare asked him to let them off at Fourteenth street, he said “all right” and went back; nothing further was said at that time, the car did not stop at Fourteenth street and after it passed he and Brown got up to get
Over the objection and exception of defendant the court instructed the jury as follows:
“1. All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting.
“2. If from the evidence, and under these instructions, you find and believe that at the city of St. Louis and State of Missouri, on December 31, 1899, the defendant, Thomas Valle, either alone or acting together with another one, with
While it seems to be conceded by defendant that the instructions may be good in the abstract, it is claimed that they were unwarranted by the evidence, calculated to mislead and, prejudicial, and without amplification, suggesting to the jury that it made no difference whether the shooting was done by defendant or his co-indictee, they being companions on the car.
While the authorities hold that the mere presence of a person while a felonious assault is being committed by another upon a third person, or a mental approval of what is being done, will not, in the absence of some word or act of approval or encouragement, make such party guilty of a felonious assault, yet if he be present and by words or actions aid or advise or encourage another to commit a felonious assault, with the intent that the words or acts of encouragement should encourage and abet the crime committed, he will be equally guilty ■with the person who actually commits the physical act; “and a party may be charged with doing an act himself and be held liable under such charge, for being present, aiding and assisting another in doing it.” [Willi v. Lucas, 110 Mo. l. c. 222; Canifax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421; Allred v. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo. 313; Cooper v. Johnson, 81 Mo. 483; State v. Orrick, 106 Mo. 111.] And it is not necessary to a conviction that it be proven by direct evidence, that a person advised an act, or aided by any overt act in its commission, but such fact may
With these well-settled principles in view, which are announced in the instructions, were they authorized by the evidence and facts disclosed by the record ? We think they were. The defendant and his companion Brown boarded the car together, and when they alighted therefrom, defendant made use of the most indecent and insulting language to the conductor that he could command, and, while standing on the bottom step of the car said to him, “I got a notion to smash you,” and stepped up on the step and made a grab at him, and struck at him, during which time Brown was standing near him. Then to make himself room and get away the conductor struck at him, jerked the door open at the same time and went on the inside of the car to get help and get away from the two men. He testified that the defendant then followed him into the car, and shot him, while defendant testified that the conductor knocked him off the steps of the car, and that he had nothing to do with the difficulty, had no pistol, and did not do the shooting.
There was evidence tending to show that Brown did the shooting, but defendant provoked the difficulty and the evidence did not show, we think, that he had abandoned it at the time of the shooting; upon the contrary, even if he did not do it himself, he was present and taking part in the difficulty, and a party thereto. In fact, the weight of the evidence was that defendant did the shooting himself.
We are, therefore, of the opinion that the criticism on the instructions is without merit, and that the judgment should be affirmed. It is so ordered.