State v. Anderson
| Decision Date | 05 June 1925 |
| Docket Number | 26141 |
| Citation | 274 S.W. 19 |
| Parties | STATE v. ANDERSON |
| Court | Missouri Supreme Court |
Robert W. Otto, Atty. Gen., and W. L. Vandeventer, Asst. Atty. Gen for the State.
Statement.
On November 10, 1923, there was filed in the circuit court aforesaid a verified information charging defendants Jimmy Anderson and John C. Evans with a felonious assault, etc. Said information reads as follows:
'Now comes James H. Anderson, assistant prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Jimmy Anderson and John C. Evans, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 24th day of September, 1923, at the county of Jackson, state of Missouri, in and upon one J. A. Probst feloniously, willfully, on purpose, and of his malice aforethought did make an assault; and that said Jimmy Anderson and John C. Evans, with a certain deadly weapon, to wit, pistol, fists, and feet, likely to produce death or great bodily harm, then and there feloniously, willfully, on purpose, and of his malice aforethought did assault, beat bruise, and wound the said J. A. Probst, then and there giving to the said J. A. Probst in and upon the head and body of him, the said J. A. Probst, with the deadly weapon, to wit, the pistol, fists, and feet, aforesaid, did wound with the felonious intent then and there him, the said J. A. Probst, feloniously, willfully, on purpose, and of his malice aforethought to kill and murder, against the peace and dignity of the state.
'James H. Anderson,
'Asst. Prosecuting Attorney.'
Defendants entered a plea of not guilty, and, on November 27, 1923, a severance was granted. Appellant's trial was commenced before a jury on January 2, 1924, and on the latter date the following verdict was returned:
'We, the jury, find the defendant, Jimmy Anderson, guilty of assault with intent to kill, as charged in the information, and assess his punishment at imprisonment in the Missouri state penitentiary five (5) years.
'H. Alcorn, Foreman.'
Timely motions for a new trial and in arrest of judgment were filed and overruled. Allocution was allowed, judgment was rendered, and defendant duly sentenced in conformity to the terms of said verdict. He was granted an appeal from said judgment to this court.
The evidence on the part of the state tends to prove that on the morning of September 24, 1923, about 4:30 o'clock, just before daylight, James A. Probst, a city police officer in uniform, was in the vicinity of Cambridge and Roberts streets, and saw two automobiles coming east on Roberts street. They went around the corner, turned north on Cambridge, went one block north, and stopped in the middle of the street. They were there side by side a few minutes, then drove on. Probst went west on Washington Park boulevard to the alley, and then south in the alley to another alley, which connected with Ewing street. While Probst was standing near the alley on Ewing street, between Washington and Roberts streets, a car drove up and stopped near him. While he was questioning the man in this first car, another car drove up and stopped behind the first car. Three men were in the second car. Probst was within three feet of the car, and could plainly see the defendant. The street light was back of the officer, so that defendant was in full view. When Probst told the defendant to get out of the car he did so, but, as his feet hit the street, he (defendant) pulled a gun from his coat and pointed it at Probst. An altercation ensued, and defendant's pistol was discharged, the bullet hitting the belt buckle of the officer. The latter also discharged his revolver and hit defendant, but did not seriously wound him. Shortly afterwards some one hit the officer over the head with a black jack. This blow knocked the officer to the ground, but he continued to scuffle with defendant. A minute later, the officer was struck by an object which he thought to be a revolver, but he knew defendant did not strike him. This blow rendered the officer unconscious, and he was unable to resist longer. Defendant got up and said to his companion: 'Come on; I am shot.' The other car was standing still where they left it before the altercation. Probst got up and went to St. Luke's hospital, where he discovered that he had a gunshot wound in his hand. Probst identified a flashlight he had on the night of the alleged offense. He also identified the gun which he had on that occasion, but said it had no piece broken out at that time. He identified the piece shown as a part of the handle to his gun. Officer Probst positively identified the defendant as the person with whom he had the difficulty on the morning of September 24, 1923. A part of a belt buckle and a piece of Probst's gun were found the next morning and identified by the officer as belonging to him.
A. J. Bergman, a city detective, arrested the defendant in September, 1923. Two other detectives were with him. The arrest was made at the Altamont Hotel in a room downstairs. There were three men in the room when the officers went there. Evans was one of the men in the room, and a man called 'Gold Tooth Kelly.' The latter admitted he was an escaped convict. When the officers went to above room where they arrested defendant, they were not admitted for a minute or two, and, while standing there, they heard a window go up in that room. When they entered the room, with the aid of a flashlight, they saw a Colts revolver lying in the areaway immediately below the window. The detectives searched the room, and found a revolver in a suitcase, in which defendant and Evans both had clothes. The gun under the window was recovered by the officers, and a piece was broken out of the handle of same. Defendant was taken to the hospital, and Probst identified defendant and Evans.
Other substantial evidence was offered by the state tending to prove the guilt of defendant.
Defendant's evidence tended to show that he had a gunshot wound in his breast and shoulder two or three days before Officer Probst was shot on the morning of September 24, 1923; that the room in the hotel from which the pistol was thrown from the window, as claimed by the state's evidence, was not correct, as all the windows of room 6 were then nailed with screens across the same. The defendant testified, in his own behalf, that he was born in Springfield, Mo., was 21 years of age, and came to Kansas City, Mo., in May, 1923; that he did not shoot Officer Probst on or about September 24, 1923; that he was not in the vicinity where said assault occurred; that he had a bullet hole in his breast and shoulder, caused by a gun in Kansas City...
To continue reading
Request your trial