State v. Stuart

• Decision Date: 30 January 1906
• Citation: 92 S.W. 345,116 Mo. App. 327
• Parties: STATE v. STUART et al.
• Court: Missouri Court of Appeals

92 S.W. 345

116 Mo. App. 327

STATE v. STUART et al.

St. Louis Court of Appeals. Missouri.

January 30, 1906.

1. CRIMINAL LAW—EVIDENCE—DEMURRER.

Where there is any substantial evidence of defendant's guilt, an instruction in the nature of a demurrer to the evidence is properly refused.

2. ASSAULT—EVIDENCE.

In a prosecution for assault, evidence held sufficient to establish that one of the defendants participated in the affray in a manner other than as a peacemaker.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

John Stuart and William Vollmer were convicted of assault, and they appeal. Affirmed.

B. L. Matthews and R. L. Shackelford, for appellants. R. L. Johnston, for the State.

BLAND, P. J.

The grand jury of St. Louis county preferred an indictment against the defendants, charging that at said county, on September 1, 1903, defendants made a felonious assault on William A. Trent, with a deadly weapon, with the felonious intent to kill him, said Trent. Defendants entered a plea of not guilty and were put upon trial, which resulted in a verdict finding them guilty of common assault. Judgment and sentence followed the verdict, from which, after an unsuccessful motion for new trial, defendants appealed. Trent, it appears, had left the county and was not present at the trial.

William Morische, the principal witness for the state, testified: That he owned Morische's Grove, in St. Louis county, located near the grounds of the Delmar Jockey Club, and at the time of the difficulty Trent was his cook. That on September 1, 1903, at about 3 p. m., he and Trent started to the Jockey Club, walking on the track of the Suburban Railway Company. That when they got in back of the paddock of the Jockey Club, Stuart and Vollmer, addressing them, said: "Here comes the sons of bitches now. Don't you follow us." And Trent said: "We ain't following you, and we ain't sons of bitches either." With that Stuart pulled a gun out of his pocket and came towards Trent. Witness stated that he then ran about 40 or 50 feet, dropped his hat and started back for it, and saw Stuart and Trent fighting, and saw something that looked like a gun in the hands of both Stuart and Vollmer, and heard a pistol shot about the time the fight commenced. That Vollmer was 40 or 50 feet away when the fight began, but came up during its progress and took part in it, and when Trent had Stuart down in a ditch, Vollmer took hold of Trent, beating and pulling him off of Stuart. That Vollmer beat Trent with something that looked like a revolver. That Trent was bruised and cut about the face, and was bleeding profusely, and he helped him on a car and took him home. That he did not know who fired the shot, but was certain it was fired before the men rolled into the ditch. Witness also testified that Vollmer mixed in the fight before the parties rolled into the ditch. The physicians who attended Trent said his injuries were flesh wounds, not of a serious nature. George Merida testified, for the state, that he saw the three men fighting and roll into the ditch, but could not tell one from the other; that one of them had a gun in his hands. George Angelin also testified that he heard there was trouble and went to the scene; that when he arrived two of the men were rolling into the ditch, and the other was standing by; that he saw nothing further of the fight until some men pulled Trent out of the ditch, and he then saw that Trent was cut and bruised about the face and was bleeding; that he saw nothing of the fight until the shot was fired.

For the defense, the evidence tends to show that Trent was about 25 or 26 years of age, was a large, strong, muscular man, and that Stuart was weak and sickly; that in the fight Stuart was backing and Trent was following him up and the two finally rolled into a ditch; that Vollmer was some distance away, but came up after Stuart and Trent rolled into the ditch and then pulled Trent off of Stuart, but did...