State v. Walker

• Decision Date: 07 December 1937
• Docket Number: No. 5878.,5878.
• Parties: STATE v. WALKER et al.
• Court: Missouri Court of Appeals

110 S.W.2d 780

STATE v. WALKER et al.

No. 5878.

Springfield Court of Appeals. Missouri.

December 7, 1937.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

"Not to be published in State Reports."

Noling Walker and C. S. Coffey were convicted of common assault, and they appeal.

Affirmed.

O. T. Hamlin, of Springfield, for appellants.

John Carr, of Springfield, for the State.

ALLEN, Presiding Judge.

Noling Walker and C. S. Coffey appeal from a conviction of common assault. Walker's punishment was fixed at a fine of $100 and thirty days in jail. Coffey's punishment was a fine of $100.

This case is here on the record as certified by the clerk of the circuit court and the bill of exceptions. Neither the State nor the appellants have filed statements, briefs or arguments, and it is our duty to consider all the errors properly assigned in the motions for a new trial and examine the record for error. Section 3760, R.S.Mo.1929 (Mo.St.Ann. § 3760, p. 3298); State v. Cropper, 327 Mo. 193, 36 S.W.2d 923; State v. Davis, 321 Mo. 598, 12 S.W.2d 426.

The information charging the defendants with common assault was filed on May 7, 1936, during the January, 1936, term of the circuit court of Greene county. On June 9, 1936, and during the May Term, the defendant Walker filed an application for a continuance setting forth that his codefendant, C. S. Coffey, was ill and under the care of a physician and unable to attend court. The application stated that Coffey was a necessary witness and set out what he would testify, if present. Evidence was offered on the motion to the effect that Coffey was being treated by a physician for kidney trouble and that it would be better for him if he did not attend court at that time. The court overruled the motion and set the case for June 12, 1936. The case was tried on the 12th and 13th. Coffey was present on the 12th as a defendant and testified as Walker's application for a continuance stated he would. In Walker's motion for a new trial the overruling of his application for a continuance is assigned as error.

As a defendant in a criminal case he was not entitled to a continuance as a matter of right. The granting or refusing of his application for a continuance was a matter within the discretion of the trial court. The record does not show that Walker was prejudiced by the ruling, or that the court abused its discretion, and there was no error in overruling the application for a continuance. State v. Salts, 263 Mo. 304, 172 S.W. 373.

Both defendants objected that the information was not verified as provided by law, and was therefore invalid. As to form, the information follows and doubtlessly was copied from the statutes. Section 3506, R.S.Mo.1929 (Mo.St.Ann. § 3506, p. 3130). The verification is as follows:

"John F. Carr, assistant prosecuting attorney within and for the County of Greene, and the State of Missouri, makes oath and says that the facts stated in the foregoing information are true according to his best information and belief.

"John F. Carr, assistant prosecuting atty.

"Subscribed and sworn to before me this 7th day of May, A. D. 1936.

                                 "James S. Johnson
                           "Clerk of the Circuit Court."
                

The information was properly signed by the assistant prosecuting attorney. The verification by the clerk of the circuit court is well within the statutory definition of "verified" and "oath." Section 11334, R.S. Mo.1929 (Mo.St.Ann. § 11334, p. 608); section 4480, R.S.Mo.1929 (Mo.St.Ann. § 4480, p. 3072).

By their separate motions for new trial the defendants claimed that the evidence was insufficient to support the charges and the jury's verdict.

The facts are that Will Lohmeyer was the commissioner of public utilities of the city of Springfield and as such a member of the city council. The letting of contracts for the hauling of the city's garbage was before the council, and in connection with this matter Mr. Lohmeyer had said something about a minimum wage clause for garbage haulers. He stated that they were not being paid enough and that a neighbor told him that a garbage hauler once asked her to save any old, stale, or musty cake she might have for him to give to his family. The defendants, Noling Walker and C. S. Coffey, were garbage haulers working under Carl Murray, who then had the contract, and was a bidder for the new contract. Walker is Murray's brother-in-law. They claimed that they became incensed when they read the newspaper account of Lohmeyer's talk before the city council and decided to speak to him about it and ask for an explanation.

On May 7, 1936, about 9 o'clock, Lohmeyer was on his way from his office on the third floor of the courthouse to the council meeting. Walker and Coffey accosted him for the purpose of obtaining an explanation of the "stale cake" remarks. He told them he was late for the council meeting and didn't have time to talk to them until after the meeting. As he walked down the hall, Roger Coger started talking to him. Walker insisted that he talk to them and, as Coger turned aside, the defendant Coffey jerked Lohmeyer's glasses off and Walker immediately hit him in the left eye with his fist. Lohmeyer staggered back against a bannister, and as he got up, or as Walker and Coffey pulled him to his feet, Walker hit him again and he fell, striking his head on the base of a marble column. Lohmeyer thought he was struck three times before he became unconscious.

Coffey claimed that he did not jerk Lohmeyer's glasses off but that they were hanging on one ear after Walker hit him and he gently took them off. Walker admitted hitting him twice, but claimed that Lohmeyer struck at him first but missed him and that he reached for his pocket as if to get a weapon, and that he struck him in self-defense. Lohmeyer had some papers in his right hand. There were other witnesses corroborating both versions of the assault.

The case was submitted to the jury on the theory that Walker assaulted Lohmeyer and that Coffey was present aiding, abetting and encouraging him in the assault. Obviously, the evidence was sufficient to support the charges and the verdict, if believed by the jury.

Complaint was made that the trial court permitted improper cross-examination of the defendants with reference to Lohmeyer's age, and their understanding of the newspaper account of his remarks before the city council about the garbage contract and the wages of the haulers. Without detailing the cross-examination, its range and extent were within the trial court's control and a wide range of cross-examination is permissible to show motive on the part of the defendants and interest on the part of the witnesses. Furthermore, the questions complained of were germane to the issues. State v. Decker, 161 Mo. App. 396, 143 S.W. 544; State v. Emmons, 285 Mo. 54, 225 S.W. 894.

The defendant Walker objected that instructions II and III were contradictory, and therefore incorrectly told the jury what Walker had to believe Lohmeyer intended doing before he could strike him in self-defense. Instruction II hypothesized the facts urged as giving rise to the right of...