State v. Stuart and Vollmer
| Decision Date | 30 January 1906 |
| Parties | STATE OF MISSOURI, Respondent, v. STUART and VOLLMER, Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
AFFIRMED.
Judgment affirmed.
Bond & Bond and Robert L. Shackelford for appellants.
(1) The verdict and judgment convicting appellant Volimer of common assault and battery in the manner charged in the indictment is not supported by any evidence whatever sufficient to warrant a conviction of crime, and as to this appellant at least the judgment ought to be reversed, because there is no evidence sufficient to sustain it. State v. King, 174 Mo. 647. (2) Where the verdict of a jury in a criminal case evidently results, not from calmly weighing the evidence, but from prejudice or ill will against the defendants, the verdict and judgment will be reversed on appeal, and a new trial granted. State v. Prendible, 165 Mo. 329; State v. Hough, 161 Mo. 459; State v. Packwood, 26 Mo. 340; State v. Brosius, 39 Mo. 534; State v. Mansfield, 41 Mo. 470; State v. Dauhert, 42 Mo. 238; State v. Marshall, 47 Mo. 378; State v. Burgdorf, 53 Mo. 65; State v Jager, 66 Mo. 173; State v. Carter, 93 Mo. 242; State v. Primm, 98 Mo. 368. (3) Where upon the whole record it appears that there is not sufficient evidence to support a conviction for a crime, the verdict and judgment will be set aside on appeal, and the defendants discharged. Garrett v. Greenwell, 92 Mo. 120; State v Mahan, 138 Mo. 112; State v. Greenipain, 70 Mo.App. 468.
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 forty or fifty 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 forty or fifty 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 twenty-five or six 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 not strike Trent; that no shot was fired until after the men rolled into the ditch; that Stuart came out of the fight dirty and bloody, with his clothing torn; that Vollmer had nothing in his hands and all that he did was to pull Trent off of Stuart; that Stuart tried to get away from Trent...
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