State v. Tompkins

• Decision Date: 14 April 1958
• Docket Number: No. 2,No. 45889,45889,2
• Citation: 312 S.W.2d 91
• Parties: STATE of Missouri, Respondent, v. J. L. TOMPKINS, Appellant
• Court: Missouri Supreme Court

Page 91

312 S.W.2d 91

STATE of Missouri, Respondent, v. J. L. TOMPKINS, Appellant.

No. 45889.

Supreme Court of Missouri, Division No. 2.

April 14, 1958.

Louis N. Goessy, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.

LEEDY, Judge.

Defendant was convicted of exhibiting a deadly weapon in a rude, angry or threatening manner in the presence of one or more persons, one of the offenses denounced by Sec. 564.610, RSMo 1949 and V.A.M.S., and which is alleged to have been committed in Jackson County. The jury assessed the punishment at a fine of One Hundred Dollars, and after an unavailing motion for a new trial, judgment was rendered and sentence pronounced in accordance with the verdict, and defendant appealed.

The defendant has filed no brief. We look, then, to the motion for a new trial for his allegations of error, and review such of them as are sufficient to comply with the requirements of Rule 27.20, Supreme Court Rules, 42 V.A.M.S., one of which being (by great liberality of construction) his challenge of the sufficiency of the evidence.

The evidence for the state was, in substance, as follows: On the evening of Nov. 11, 1955, Anthony Barber, the prosecuting witness, aged 18, was in his father's brand new Ford automobile parked in the lot at the Crest Food Center, 115th & U. S. Highway 71 in Jackson County, when and where the rear end of the Ford was struck by a car driven by the wife of defendant. Anthony testified Mrs. Tompkins was so heavily intoxicated that she was unable to walk. (Another state's witness also testified to this effect.) The prosecuting witness then inquired if she would like for him to take her home, and she said she would, and would appreciate it very much; 'She said she would be glad to fix my car * * * and settle up any damage that was done to it.' Arriving at the Tompkins home on 114th Street a few blocks from the market, he carried her groceries in and set them on the kitchen table, helped her in the house and 'told Mr. Tompkins what had happened.' Anthony's wife, driving the Ford, had, by his direction, followed and parked in the Tompkins driveway behind the Tompkins car, the latter having been nosed up to the garage door. Defendant and the prosecuting witness went outside to inspect the Ford, defendant taking along a flashlight, but they were unable to see anything that was seriously wrong. The prosecuting witness testified he then stated that if something came up in the daylight that they couldn't then see, that he would like to have his car fixed, to which defendant replied that he didn't think it was hurt at all. Defendant then said, 'Come on in the house, I want to talk to you.' Anthony complied, and followed defendant into the house, closing the door behind him. According to Anthony, defendant went in another room, and he (the witness) heard a gun cocked, and defendant came out with a .22 pump rifle. 'He came out with it and pointed it directed at me and he told me he was going to teach a young smart aleck like me a trick, he was going to teach me to get so smart and cocky. I told him I didn't want any trouble, if he was going to take that attitude I didn't want my car fixed and I would just as soon forget all about it. I asked, 'Do you want me to go?' He said, 'No, you are not going to go, I want to teach you a lession.' I was talking with my hands, he said, 'Try to take the gun away.' He tried to hit me two or three times with the gun, I blocked all the blows with my hands, then I asked him if I couldn't go again. I said, 'I would like to forget all about this, I didn't want any kind of trouble like that.' Mrs. Tompkins told him to let me leave, not to do anything they would be sorry for later. He told her to shut up. I said I would appreciate if he would let me go. I was pretty scared and stiff. He said, 'Just go ahead and go.' So when I left I took an open door and closed it behind me, I run through part of the garage to my car, I yelled to my wife to start the car and get going. She didn't quite understand I was on gravel and didn't stop running. To get to my car I had to run around it and get in on the other side. At that time when I was getting in I heard the shot, then when I was backing out I saw the gentleman shooting at us then as we were backing up.' This witness further stated that when in the kitchen he noticed that 'defendant had been drinking, he was intoxicated.'

The evidence for the defense, which consisted of the testimony of the defendant and his wife, sharply contradicted that of the state. The defendant is a dentist with an office in his home, and for 33 1/2 years he had also been employed at the post office. He is a Navy veteran of World War I with 55 months of service. He testified that when his wife returned from the food market a stranger was following her into the house whom he had never seen, and his wife was hysterical and crying. When she told him that the prosecuting witness claimed that she had hit his car, he (defendant) said, 'Well, we will go out and look at it;' that he picked up a fishing lantern and turned a switch in the garage which turned on the lights in the lamppost at the gate, then he and Anthony went out and examined the car, but he couldn't find a thing where the car had been touched. Whereupon, he (defendant) walked back into the garage, and without having said anything to the prosecuting witness the latter followed him in there and demanded $50 to call it even, which he declined, saying, 'I ain't giving nobody $50. I don't see anything wrong with the car.' Anthony then called him a vile name and threatened to whip him, and struck at him. 'I threw up the lantern like that, he hit the lantern, I backed away from him, got in the kitchen door, he followed me in there. My wife was sitting at the dinette table crying, still crying. I told her, 'This man says you hit his car and he wants $50.' She said, 'Don't you give him $50 because there wasn't any wreck.' He said to the wife, 'You are a damn liar,' and hit her in the mouth. I was standing at the entrance of the kitchen door that goes into the hallway, dining room and went to the linen closet, I thought that was enough, it is about twenty-five feet through there to the linen closet and got my rifle which was in the case. I came back to the kitchen door where I was standing. He was standing over leaning against the sink and I said, 'I think you had better leave and I mean leave.' He says, 'You old son-of-a-bitch, I will hit you in the mouth,' and he lunged at me. Being the practice also in the Navy and the Army I flipped my hand up like that and caught him in the wrist. He struck and went down that way (indicating). He says, 'The hell with you, I will go in my car and get my equalizer that equals what you got.' He goes out the back door, my wife and I followed him. I took the cover off the rifle. We walked out there and stood at the entrance of the garage. He went on the left side of the car, reaches into, comes back out, closed the door and went around to the other side. That is when I was holding the gun up like this and shot up through the overhead door. He backed out and took off.'

The testimony of defendant's wife corroborated his version of the occurrence, and, in addition, she denied that there had been any contract between the two automobiles at the food market. She testified that the prosecuting witness, whom she did not know, jumped in her car and pushed her aside, saying, 'I saw you in the store, you were so drunk, and I am going to drive you home.' She denied, as did the defendant, that either of them were drinking. She also testified that when defendant and the prosecuting witness went out to examine the car, her husband told her to telephone the sheriff's office, which she did, not only once but a second time, but before 'they' arrived from the sheriff's office, Barber had gone.

Under the facts above outlined it is quite evident that it was for the jury to say which version of the occurrence it would believe, and not for the court to rule the question as one of law. The jury chose to believe the state's witnesses, under whose testimony there was substantial evidence to support the charge, and hence defendant's motion for a judgment of acquittal offered at the close of all the evidence was properly denied.

The first two paragraphs of the motion for a new trial seek to raise points concerning instructions, including those actually given as well as the failure of the court to give necessary ones as a part of the law of the case. These paragraphs read as follows:

'1. The court failed to properly instruct the jury as to all...