The State v. Thompson

• Decision Date: 18 March 1922
• Parties: THE STATE v. WILLIAM THOMPSON, Appellant
• Court: Missouri Supreme Court

238 S.W. 786

293 Mo. 116

THE STATE v. WILLIAM THOMPSON, Appellant

Supreme Court of Missouri, Second Division

March 18, 1922

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Reversed.

E. E Hairgrove for appellant.

(1) The indictment in this case was for the violation of Sec. 3262 R. S. 1919. (a) There was no attempt made by the State on the trial to prove other than an assault with intent to kill by shooting. (b) It is not sufficient that the defendant had knowledge of the assault having been made at the time, or that he acquiesced in the assault. Flourney v State, 25 Tex.App. 24; Stabler v. Commonwealth, 40 Am. Rep. 653. (c) If there were no overt acts, there consequently could have been no assault. 16 C. J. 113-114. (d) If the defendant did not have the ability to commit the crime, or did not assault the officers, there was no crime committed. 16 C. J. 116-17. (2) The evidence fails to show that the defendant made an assault upon the officers named in the indictment, in fact the evidence clearly and conclusively shows that the defendant at the time of the alleged shooting was engaged in his occupation as a common carrier, driving a Ford touring car; that he had lost his left arm long prior to the date of the alleged crime and that it required his remaining arm to steer the car; that he did not have a revolver or other fire-arm; that it required his entire attention to drive the car, as it was a wet dizzly night. (3) The defendant did not shoot the revolver that was found in the car, as he testified (and he was not contradicted) that he had never seen the revolver and did not know that any of his passengers had one. There was no evidence whatever that Thompson was acting in concert with parties he had contracted to transport. State v. Baird, 271 Mo. 9; State v. Harris, 209 Mo. 423; State v. Mulhall, 199 Mo. 202; State v. Anderson, 168 Mo. 412; State v. Kodat, 158 Mo. 125; State v. Moses, 139 Mo. 217; State v. Dooley, 121 Mo. 591. (4) The State utterly failed to prove any motive on the part of the defendant for shooting, or wishing any one else to shoot the officers. State v. Saunders, 106 Mo. 188; State v. Forsythe, 89 Mo. 667.

Jesse W. Barrett, Attorney-General, J. Henry Caruthers, Special Assistant Attorney-General, R. W. Otto, Assistant Attorney-General, for respondent.

There is substantial evidence of appellant's guilt and same was properly submitted to the jury. The court, after hearing and observing the witnesses, approved the verdict, and this court will decline to interfere. State v. Bond, 191 Mo. 564; State v. Cook, 207 S.W. 832; State v. Rumfelt, 228 Mo. 456.

OPINION

HIGBEE, J.

The defendant and Edwin O'Neil and Charles R. Golden, alias Murphy, were charged by indictment with having, on September 4, 1920, feloniously assaulted Frank Nissen, George McNalley, Fred B. Ford and Patrick J. Donovan, policemen of Kansas City, with intent to kill. Thompson was tried separately, found guilty and sentenced to two years' imprisonment in the penitentiary, from which he appealed.

Thompson who had lost his left arm, owned a Ford car and kept a jitney stand at 15th and Charlotte Streets. O'Neil and Golden, with two women, at about three a. m. of September 4, 1920, engaged him to take them to some place between 37th and 38th Streets on Indiana Avenue. It was a dark, rainy night. Nissen, McNalley and Ford testified that about 3:30 that morning they saw a car coming from the north on Indiana Avenue between 37th and 38th Streets, which appeared to be zigzagging across the street, "apparently looking for street numbers." The officers were in a Ford touring car equipped with a siren. They turned off their lights and waited until this suspicious car came up. They called to the driver to stop; that they were officers. Instead of stopping the driver drove rapidly away. The officers pursued the fleeing car at about thirty miles an hour, blowing the siren continuously. Officer McNalley recognized the defendant, who was driving the car. During the chase and when the officers' car was from twenty to seventy-five or one hundred feet in the rear, three shots, coming from the left side of defendant's car, were fired. The officers saw the flashes, but no one saw who fired the shots. The first shot pierced the windshield in front of Ford, who was driving the officers' car. The other shots struck the top of the car. As soon as the first flash was seen, the officers fired repeatedly at the defendant's car. One shot punctured the left rear tire and the car stopped at the curb. The officers ordered the defendants out, searched them and found a revolver in the front seat of defendant's car, which contained three cartridges and three empty shells. Defendant said they were out getting fresh air; that the car was his and that he used it for livery...