State v. Neely

• Decision Date: 14 December 1932
• Docket Number: 32275
• Parties: STATE v. NEELY
• Court: Missouri Supreme Court

56 S.W.2d 64

STATE v. NEELY

No. 32275

Supreme Court of Missouri, Second Division

December 14, 1932

Motion for Rehearing Overruled December 31, 1932.

Earl C Borchers and J. Earl Tetherow, both of St. Joseph, for plaintiff in error.

Stratton Shartel, Atty. Gen., and C. A. Powell, Asst. Atty. Gen., for the State.

OPINION

COOLEY, C.

This case comes here on writ of error sued out by Ruben Neely, the defendant below. For convenience we shall refer to him as the defendant. Defendant Neely and two others, Frank Martin and Claude Martin, were jointly charged by information in the circuit court of Andrew county with the crime of felonious assault alleged to have been committed by them on purpose and of malice aforethought upon one Harry Rash by shooting at and wounding said Rash with intent to kill him.

A severance was granted and this defendant was tried alone. He was convicted and pursuant to the verdict of the jury was sentenced to ten years imprisonment in the penitentiary. Sentence was pronounced November 21, 1930. Defendant asked and was granted an appeal to this court. On November 20 1931, he dismissed his appeal and sued out the writ of error on which the case is now presented here. The chief contention of defendant relates to the sufficiency of the evidence to identify him as Rash's assailant.

Harry Rash operated a restaurant in Savannah, Andrew county, Mo. About 1:30 o'clock a. m., July 7, 1930, he left his restaurant and started home carrying a bundle of clothes, a bottle of milk, a sack of money, and a 25-caliber automatic pistol; the pistol being tucked inside his belt. He lived on a north and south street, called Second street, a block north of its intersection with an east and west street called Pearl street. His route took him east on Pearl street to said intersection, thence north on the west side of Second street. When he had turned at the intersection and gone thirty-five or forty feet northward, he heard a noise and, turning, saw a rather large man, dressed in light colored clothing, standing at the corner of a shed a few feet from the sidewalk on the west side of Second street. Rash was then about a step past the shed and the man was quite near him. That man, without speaking, shot Rash, the bullet striking him in the side of the head and inflicting a serious and dangerous wound. Had it struck an inch or so to either side of the point where it did strike, it would probably have proved fatal. Rash testified that when he looked around and discovered the man the latter was 'standing there' but it was 'not over a second or two' until the shot was fired. He heard but one shot. Other witnesses heard two. He testified that when he was shot he stepped back off the walk, dropped his money sack, threw his milk bottle at his assailant, and stepped or stumbled 'in this water ditch' and fell; that thereupon his assailant rushed upon and grappled with him, but after a short struggle or 'scuffle' 'he broke loose and backed away from me,' stood near the corner of the shed for a few moments, and then Rash lost sight of him. Following the shot and during the scuffle Rash called for help. A few minutes, or perhaps less, after the assault and the cries for help, a small two-seated closed automobile, which had been parked in Second street about a block to the north, turned on its lights and started up, going south past the scene of the assault. A witness, King, near whose house the car had been parked, was aroused by the shots, he said two, and the cries for help. Looking out of his window he saw the car and heard men's voices in it. One man in the car, evidently speaking to another, said: 'Let's get the hell out of here.' The car then started. That was just after witness heard the shots and outcries.

Mr. and Mrs. Frank West lived at the southwest corner of the intersection of Pearl and Second streets, directly south across Pearl street from the shed above mentioned. Pearl street is a narrow street. That night Mrs. West was not feeling well and had gotten out of bed and was sitting by a window on the side of her house next to Pearl street when Rash passed on his way home. She saw and recognized him and saw him turn north. Almost immediately thereafter she heard two shots and the cries for help. She ran out on her front porch, which faces Second street, and saw a man dressed in light colored clothing come south from the direction of the place where other evidence showed the assault occurred, stop a short time at the corner of the shed, then pass within a few feet of her. The car, to the north, then had its lights on and had started south. It threw some light as far south as the street intersection and she saw the man in that light. The car passed her house, went south to the next east and west street, Main street, where it stopped about long enough for a man to enter it and then went east in Main street. The man she had seen had gone south in the direction of the spot where the car thus stopped for a few moments. While it was stopped she saw a man approach it but did not see him get into it, could not see him 'after he got out of the light of the car.'

A short time before the shooting she had seen a car 'going down' Second street and heard it stop about where King saw the parked car which started south immediately after the shooting.

Officers and others reached the scene of the assault shortly after it occurred. Rash's money and bundle were found where he had dropped them in the grass, as was also his pistol which had slipped out of his belt in the scuffle. It had not been discharged. About daybreak on July 7, the sheriff found a Ford Tudor sedan at the end of a blind street two and a half blocks from the point where Mrs. West last saw the car above mentioned, then heading east. The place where it was found could be reached by going east one block from the intersection of Second and Main streets where Mrs. West last saw the car, thence south one block, and thence east half a block. Highway No. 71, leading to St. Joseph, is east of the place where the sheriff found the car. It had evidently collided rather violently with a fence extending across the end of the street and had been abandoned. One fender was bent where it had struck the fence. The headlights were still burning. Both license plates had been bent upward so that the numbers could not be read except by going close to the car and looking directly down at them. In the abandoned car were found an overall jumper, a blackjack, and a 22-caliber pistol which, however, the evidence indicated had not been recently fired.

The sheriff traced the ownership of the car he thus found to the 'You Drive It Company' of St. Joseph. He returned it to that company the next day. It was identified by the manager of the company as their car and as one which the defendant had rented from said company on July 6, about 3:45 p. m. Defendant had not returned it and he never made any report to the owners concerning it. When he procured it from the company he was accompanied by a young man named Martin, but it is not shown whether or not it was one of the Martins jointly charged with him.

Rash testified that at the time and place of the assault it was dark and there were no lights in the vicinity. He at no time heard his assailant's voice. He did not know defendant prior to the time of the assault. He described his assailant as 'a tall fellow and pretty heavy,' and said he was dressed in light colored clothes. He could not identify defendant as the man who had assaulted him.

Mrs. West testified that the defendant 'looks like the man I saw that night,' who had come from the direction of the assault and whose movements she had detailed; that when the car which had been parked north of the scene of the assault turned on its lights and started southward, its lights 'threw quite a light up the street,' by the aid of which she saw the man.

'Q. Would you say he is the man you saw? A. Well, it looks like him. I would not want to insist on it but he just looks like the man I saw.' She had seen defendant the day before the trial, never before that to her knowledge, and had then, she thought, recognized him as the man she had seen on the night in question.

She testified further that he resembled the man she had seen that night in size 'and the way he walks.'

'Q. (cross-examination) Now, you didn't tell your husband then that the man that ran across the street looked to you like this man (the defendant), did you? A. I told him last night, yes, that I thought this is the man that ran across the street. It looks just like him.

'Q. How close...