State v. Valle

• Decision Date: 12 November 1901
• Citation: 65 S.W. 232,164 Mo. 539
• Parties: STATE v. VALLE.
• Court: Missouri Supreme Court

65 S.W. 232

164 Mo. 539

STATE v. VALLE.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

HOMICIDE — ASSAULT TO KILL — JOINT ASSAILANTS — EVIDENCE — INSTRUCTIONS.

Accused and a companion boarded a street car, and when they alighted therefrom accused used insulting language to the conductor, and when on the car steps struck at him, during which time his companion was standing near. The conductor struck at accused, and went inside the car to get away from the two men, when he was shot. Accused stated that the conductor knocked him off the car, and he had nothing more to do with the difficulty. The evidence was conflicting as to whether accused or his companion did the shooting. Held sufficient to warrant an instruction that all persons are equally guilty who act together with a common intent in committing a crime, and that if accused, either alone or acting together with another, with a common intent feloniously assaulted the conductor with intent to kill, he was guilty of assault with intent to kill.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Thomas Valle was convicted of assault with intent to kill, and he appeals. Affirmed.

C. Orrick Bishop, for appellant. E. C. Crow, Atty. Gen., and Perry S. Rader, for the State.

BURGESS, J.

Under an indictment charging defendant and one Lem Brown, jointly, with assaulting and shooting one Edward C. Bell with a pistol with malice aforethought, defendant was convicted, and his punishment fixed at five years' imprisonment in the penitentiary. After unavailing motions for a new trial, defendant appeals.

On the evening of December 31, 1899, Edward C. Bell was the conductor of a Laclede avenue street car running east on Market street from Jefferson avenue to Thirteenth street, in the city of St. Louis; and about 9 o'clock of that evening defendant and another negro boarded the car as it was going east (west of the Union Station). The conductor collected of them their fare, and when he did so they spoke of being let off at Fourteenth street, but the car did not stop there, and they did not get off; but when the car approached Thirteenth street, further on, they arose from their seats and started to get off. Defendant was in advance, and abused the conductor, and in so doing used as vile epithets as ever escaped the lips of man; and when he stepped down on the lower step of the car, and was standing there, he remarked to the conductor, "I got a notion to smash you," and stepped up with his foot on another step, and made a grab at him. The conductor then testified, in this connection: "And the larger one — the black one — was standing right near me, and this one [defendant] made a strike at me, and I dodged back from him, and dodged right against the other one. Then he [defendant] came up on top of the step for me, and struck at me. Then, to make myself room and get away, I struck at him and jerked the door open at the same time, and went on the inside of the car to get help and get away from the two of them. I just struck at his face, just to make myself room to keep him away from me as long as possible, until I could get away, because I was between the two of them. That is the reason I struck, — to simply make myself room and to get away. Then I went in the car, and went to the stove to get a poker. As I stepped down to the stove to see if I could get something to defend myself with, some one hallooed, `Look out!' (I never knew who it was), and I raised up, and just as I got straight in the air I saw this one [defendant] step in about one step inside the door, — about equal with the front seat, I should judge, — and had a gun kind of up in front of him. Then he took it down, like. Then he pointed it right at me, deliberately, and fired, and I fell. By the time I had got on my feet, he had disappeared. He hit me just an inch and a half from the top button of my vest to the left. The bullet lodged about two inches from where my arm leaves my body." The witness testified that he saw nothing of the other man at the time, and, after a futile attempt to find the men, was taken to the hospital, where some hours afterwards the defendant was brought to his bedside by some officers, and he identified him as the man who shot him. On cross-examination he said: "Brown, coindictee, never spoke a word, that I remember off. I know that the defendant was knocked off the car, — knocked out of my reach. Didn't see his hat knocked off. Know he came back bareheaded. The car was standing still when I knocked him off. I struck him to get away, and went in the car. I saw him coming towards the car again with his hat off. He was about six feet from the car when I saw him coming, bareheaded. At the time the other man was standing between me and the rail at the platform. That was the last place I saw him, and, to my knowledge, have never seen him since." James F. Milligan, after testifying that he was a passenger on the car, saw no difficulty, but said: "All I seen, along between Thirteenth and Fourteenth somewhere, the car stopped, and he pulled a revolver out and shot. I never seen any fuss at all. They were both in the car. This man, Valle, was standing right in front of the door, and Bell [the conductor] was at my back somewhere. The seat I was sitting in was facing the rear end of the car. After he fired the shot he got off the car. The defendant fired the shot. Didn't see anything occur on the platform. There wasn't any disturbance in that car, or any loud talk that I heard, and I certainly would have heard it if there was. The first thing that attracted my attention was when the car stopped, the door opened, and he [defendant] stepped in. The car was at a standstill. There was only one man there at the time of the shooting. Defendant had on a dark suit of clothes and an overcoat, and I am positive he had on a black stiff hat. The man who stood there in the door and fired had on a black stiff hat. Next saw the defendant at the police station an hour or two after the shooting. He had a couple of pieces of court plaster over his nose." Anna McDonald was a passenger on the car, sitting near the front. "When we got to about Fourteenth street, some one said something about stopping at Fourteenth street, and the conductor answered in a mild way that he didn't know they wanted to get off there, and then this party (whoever was doing the talking) said, `That's the way with all you conductors,' using a curse word. The car did not stop at Fourteenth street. To my knowledge, it didn't stop there. Didn't see the men go out of the car, but everything was quiet after that. It couldn't be over a minute when the shot was fired. Think the car was moving at the time. The conductor was stooping down, when some one called out, `Look out!' and just then the shot was fired. Saw no one in the aisle but the conductor. Don't know who fired the shot. Can't say whether it was fired inside the car, or from the outside." S. A. Bruton was also a passenger. Sat with his back to the door, three or four seats from the door. Was facing (the prior witness) Milligan. Heard no altercation or loud talk of any kind before the shot was fired. This witness said that there were only three women, — one who sat beside him, the witness Anna McDonald, and a colored woman, — and that there was not a child on the car. C. A. Lewis testified that on the night and at the time of the shooting, about 10 minutes to 9, he was in the pawnshop of one Gallant, at Targee and Market (about two blocks from the car), when appellant came in and bought a cap from Gallant, and told Gallant "not to let anybody know that he had been there. He said, `In case anybody comes here to tell 'em you haven't seen me.' I heard the shot, and it was 8 or 10 minutes after the shot that defendant was in there. He made no explanation at all. He had a cut about here [indicating]. It was very small. The blood was coming out of it. He said he was in a hurry, — to give him a cap quick. He had two other colored men with him. After he got the cap, he walked out again." On cross-examination he stated that Mr. Gallant was then present in the circuit attorney's office. Gallant knew the men who were with the defendant, "because they have been coming in his house all the time. The defendant had nothing on his head at the time. Made no remark about his hat, and gave no reason why he wanted a cap." Officer Keeley arrested appellant at 1418 Chestnut street, on the second floor, about three blocks from the scene of the shooting, after 12 o'clock, midnight. "Saw a hat at Murrell's (between Thirteenth and Fourteenth, on Market) with initials, `T. V.' on outside. Valle was sleeping on the floor. Noticed defendant's face. Across the nose it seemed somebody had struck him, because it was swelled and bleeding, — about the bridge of the nose. He made a statement that he had had some trouble on a street car, and the conductor knocked him off the car; that he didn't want to get into any trouble, and ran away. Said the hat was his. Took him to the hospital. Bell was in bed, and, when we brought him up to Bell, Bell at first didn't recognize him. He says, `No; I don't think he is the man.' So he says, `Take him back a little. I can't see very well.' So we took him back, and after we walked him back three or four feet, why he says, `Yes; he is the man.' In the meantime...