State v. Foley
| Decision Date | 19 November 1895 |
| Citation | 32 S.W. 973,130 Mo. 482 |
| Parties | The State v. Foley, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. J. F. Green, Special Judge.
Reversed and remanded.
R. F Walker, attorney general, and C. O. Bishop for the state.
(1) The trial court did not err in its rulings on the evidence. (2) The instructions fully declared the law of the case and were in all respects appropriate and correct. State v Grant, 79 Mo. 113; State v. Hayes, 89 Mo. 262.
At the January term, 1894, of the St. Louis criminal court defendant was convicted of assault to kill, with malice aforethought, one Thomas Keeshan by shooting at him with a pistol. His punishment was fixed at five years' imprisonment in the state penitentiary. In due time defendant filed his motion for a new trial, which was overruled. From the judgment and sentence, he appealed.
About half past 1 o'clock on the night of January 4, 1894, while Thomas Keeshan, a police officer in the city of St. Louis, was walking his beat, he observed two men at the crossing of Broadway and Washington avenue in said city near what is known as the Parisian Cloak Company's store. Keeshan at once went across Broadway and caught hold of one of them, a man by the name of Cutler. The other one, the defendant, at the same time started eastwardly, along Washington avenue. Keeshan fired a shot from a revolver over defendant's head, at the same time calling upon him to halt, whereupon Cutler called on defendant to return, otherwise the officer might shoot him, when defendant turned and came back to where Cutler and Keeshan were. Keeshan then started to the police station with them walking between them, having a hand on each of them, but on reaching an alley between Fourth and Fifth streets, defendant forcibly broke away from Keeshan, ran into the alley southward toward Morgan street, turned and fired twice with a pistol at Keeshan, who fired twice in return, he in the meantime holding on to Cutler. Defendant disappeared out of sight of Keeshan. Shortly after he disappeared in the alley a private watchman walking near Washington avenue on Fourth street saw defendant come from Morgan street and run diagonally across Fourth street southwardly toward Lucas avenue. The watchman drew his pistol and halted him. At a signal given by the watchman, police officer Hayeman, came up and took defendant into custody, searching him at the time, but finding no weapon about him. Nor was a pistol of any kind found in the alley where defendant disappeared.
Just before Keeshan first arrested defendant and Cutler he had been informed that two men suiting their description had assaulted a man on Pine street with intent to rob him and he thought from the description that had been given him of them that Cutler and defendant were the same persons.
Cutler testified in behalf of defendant as follows: That about 12:30 A. M., January 4, 1894, he met Foley on the corner of Broadway and Lucas avenue, where they drank together in a saloon, and then walked together south to Washington avenue, "to take a car;" there they encountered officer Keeshan, who said, "what are you fellows doing here?" to which Cutler replied that he was "waiting for his car;" that the officer then felt outside the clothes of both of them as if to see whether they were armed, and then ordered them to leave the corner; that they crossed Washington avenue to the south side, and walked east to Fourth, the officer going in the same direction, on the north side opposite. On reaching Fourth street, they stopped, "waiting for a car;" when the officer crossed over to them and said, and thereupon took hold of Cutler, saying he was going to take him to the station, and ordered Foley to precede him, which the latter did, after some protest. They all walked north to Franklin avenue, and when they reached that corner, Foley "broke into a run," and as he did so, the officer fired at him; but Foley got into the alley and disappeared, going south toward Morgan. When the officer reached the mouth of the alley, he fired three shots, "presumably to attract the attention of the officers," who came, and the search was made, until Foley was brought back, when both of them were taken to the station and searched, and no weapon found upon either of them.
Police officer Kearney was called as a witness for the defense, to prove that he was the officer connected with the case of the assault and attempt to rob that night on Twenty-first and Pine streets, and to contradict the prosecuting witness as to the time when the report of such attempted robbery was made to the police stations. On cross-examination he stated without any objection from defendant, that he knew Edward Cutler, and that he saw him that night just after the assault and attempt to rob, and...
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