State v. Martin
| Decision Date | 17 August 1938 |
| Docket Number | 35681 |
| Citation | 119 S.W.2d 298,342 Mo. 1089 |
| Parties | The State v. George Martin, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.
Reversed and remanded.
Randolph & Randolph and Nile L. Vermillion for appellant.
Roy McKittrick, Attorney General, and Frank W Hayes, Assistant Attorney General, for respondent.
This case comes to the writer on reassignment. An opinion was written by Cooley, C., which failed of adoption by the court on a divided vote on a question of law. We have concluded he was right in his conclusions and shall use his statement of the facts.
The appellant, George Martin, and Joe Arvin and Harold Johnson were charged by information in the Circuit Court of Buchanan County with felonious assault with intent to maim Lloyd DeCasnett. A severance was granted and appellant Martin, whom we shall call defendant, was tried alone. He was convicted, sentenced to two years' imprisonment in the penitentiary and has appealed. Among numerous other assignments of error he claims that the evidence did not justify submission of the case to the jury.
The information is based upon Section 4014, Revised Statutes 1929 (Mo. Stat. Ann., p. 2817), making it a felony for any person to shoot at or stab another or "assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person. . . ." It charges an assault by defendant and Joe Arvin and Harold Johnson upon Lloyd DeCasnett "with a certain dangerous and deadly substance likely to produce death or great bodily harm, to-wit: a certain glass bulb, then and there containing sulphuric acid," with intent to maim said DeCasnett.
The State's evidence tends to show the following: the occurrence complained of happened in St. Joseph, Missouri, on the night of June 6, 1936, at apparently between 12 o'clock midnight and 12:30 A. M. of June 7th. DeCasnett, the alleged assaulted person, was in the employ of the Terminal Cab Company of St. Joseph but was not then on duty, as he worked during the day. That night he, with a young woman companion, a Miss Main, visited at the home of a mutual friend. Desiring to go home they called a Terminal Cab Company cab, which came, driven by one Stoneburner, an employee of the cab company. DeCasnett and his woman friend got in the back seat of the cab, DeCasnett on the right side, the driver, Stoneburner, being on the front seat behind the wheel. The night was warm and the windows of the cab were open. While the occupants of the cab were in those respective positions the cab, going northward on Eighth Street, a north and south street, some sixty or so feet north of the intersection of that street with Seneca Street, an east and west street, met a Chevrolet four door sedan car, going south on Eighth Street, in which were three men. The occupants of the cab did not recognize the men in the Chevrolet. According to the testimony of the occupants of the cab something struck the side of the left front door of the cab, (it appears to have been a four door vehicle) about six inches above the lower hinge, when the two vehicles were "just opposite each other" and some eight or ten feet apart, going in opposite directions, at a moderate rate of speed, say fifteen to twenty to twenty-five miles an hour. No one in the cab saw the object, whatever it was, thrown, nor did any other witness see it thrown. It is the State's theory that it was -- must have been -- thrown by one of the three men in the Chevrolet car. It later proved, according to the State's evidence, to have been a glass light bulb filled with sulphuric acid.
Stoneburner turned his cab and attempted to overtake the Chevrolet, but, owing to a governor on his engine which limited his speed, was unable to do so. He, however, got the license number of the Chevrolet, 203-087. Being unable to overtake the Chevrolet he "cut across" to Ninth Street, thinking the Chevrolet might come back south on that street, which he says it did. He there tried to "crash into it" and stop it, but failed. At that point Miss Main observed the license number of the Chevrolet. Stoneburner then went to the police station and reported what had happened.
Very soon thereafter a Chevrolet four door sedan, bearing license number 203-087 was found parked near what is called the Labor Temple in St. Joseph, where defendant and the other two, Arvin and Johnson, frequently sojourned and apparently had headquarters. Defendant and Arvin were arrested there or thereabout that night. Johnson was arrested very soon thereafter. All were questioned by the police. All denied having been on Eighth Street that night or having any knowledge of or participation in the acid throwing incident. It is admitted that the Chevrolet car bearing license number 203-087 belonged to defendant and was in his exclusive possession and driven by him on the night in question and that he, Arvin and Johnson were in said car on Ninth Street that night but all three denied that they were on Eighth Street or nearer than one block to the intersection of Eighth and Seneca.
Evidence on behalf of the State tends to show that spots were found on the windshield of the Chevrolet car and a small piece of glass adhering to the left side of its hood, also one or two burned spots on the upholstery of the rear seat of said car, which, on laboratory tests made by the city chemist, Dr. Baird, indicated, in the opinion of the latter, sulphuric acid. Also, it appears that some of the substance contained in the object thrown against the cab had "seeped through" the crack or "crease" between the back of the door and the body of the cab and had burned the adjacent upholstery. Dr. Baird, thought, from his laboratory tests, that such burns indicated sulphuric acid. No part of the acid bulb nor any of its contents touched DeCasnett nor other occupants of the cab. Marks on the cab and on said upholstery thereof indicated, according to the laboratory tests above referred to, the action of sulphuric acid.
Countering the last above mentioned evidence defendant, corroborated by three other witnesses, testified that a day or so before June 6th he had made a trip to Hannibal, Missouri, in his car, on which trip he had run through a swarm of bees, many of which had struck and been crushed on his car and its windshield. He introduced evidence of an expert chemist to the effect that honey and the juices of bees might produce chemical reactions in laboratory tests similar to those described by Dr. Baird. This expert evidence on both sides occupied much space in the record. It is sufficient for the purpose of this case to say that, in our opinion, the question of whether or not the marks and indications found on the Chevrolet car and on the cab indicated sulphuric acid burns was for the jury.
It was also shown that when defendant's car was taken possession of by officers on the night in question in front of the Labor Temple there were found in the "glove compartment" thereof a revolver and two "black jacks." These were introduced in evidence, over defendant's objections. Defendant, by his testimony, corroborated by other witnesses, explained the presence of those articles in a manner consistent with his innocence.
It is inferable from the evidence that at the time in question there was a good deal of feeling in St. Joseph because of labor organization troubles, and that there had been complaints of acid throwing and perhaps other outrages supposed to have been committed by organizers of or persons interested in the organization and unionization of labor. The evidence indicates that the employees of the Terminal Cab Company did not belong to a labor union; that defendant had been a member of organized labor for some eighteen years and for a number of years had been business agent for a "Plasterers' and Cement Finishers' Union" and the "Builder's Common Laborers' Local 579," and that he had attempted to "organize" the employees of the Terminal Cab Company. The evidence does not indicate that there had been any acrimony in the conversations he had had with the representative of the cab company with whom he had talked, nor that he had had conferences with employees of the cab company, unless the latter conclusion can be inferred from testimony that he had attempted to "organize" the cab company. There is no evidence that defendant or Arvin or Johnson personally knew DeCasnett, or even knew that he worked for the Terminal Cab Company, or that DeCasnett knew any of them, no evidence of ill will between any of those three and DeCasnett, and no evidence that defendant or either of the other two in the Chevrolet car knew or could have known that DeCasnett was in the cab at the time the acid is claimed to have been thrown.
The point upon which the case was decided in the former opinion was this. It will be remembered the State's evidence showed that shortly after midnight someone in the Chevrolet sedan owned and driven by appellant threw an electric light bulb filled with sulphuric acid against the left front door of the Terminal Taxicab about six inches above the lower hinge, as the two...
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