The State v. Tooker

• Decision Date: 16 May 1905
• Citation: 87 S.W. 487,188 Mo. 438
• Parties: THE STATE v. TOOKER, Appellant
• Court: Missouri Supreme Court

87 S.W. 487

188 Mo. 438

THE STATE v. TOOKER, Appellant

Supreme Court of Missouri, Second Division

May 16, 1905

Appeal from Christian Circuit Court. -- Hon. Asbury Burkhead, Judge.

Affirmed.

S. E Bronson and G. A. Watson for appellant.

The evidence abundantly shows that the prosecuting witness was drunk and disorderly and, when drunk, dangerous and quarrelsome; that Tooker, the defendant, was in charge of the station, and bound to protect the public from insult and annoyance. Under this evidence the instruction marked "refused" should have been given, or at least its substance in some form.

Herbert S. Hadley, Attorney-General, Rush C. Lake, Assistant Attorney-General, and G. Purd Hays for the State.

(1) By reason of the failure of the defendant to except to the overruling of the motion to quash the information, on account of the insufficiency of the verification, that question is not now before this court for review. State v Henderson, 109 Mo. 292; State v. Fraker, 137 Mo. 258; State v. Campbell, 141 Mo. 597; State v. Brown, 181 Mo. 192. (2) The instruction marked "given," and complained of by defendant, is the law, and has been so held by this court for a number of years. State v. Shoultz, 25 Mo. 152.

FOX, J Gantt, J., concurs; Burgess, P. J., absent.

OPINION

FOX, J.

The information in this case was filed on January 13, 1904, in the circuit court of Christian county, Missouri, by the prosecuting attorney, charging the defendant, L. M. Tooker, with feloniously assaulting, with intent to kill, one Frank Farris, in Billings, said county and State, upon the 24th day of December, 1903. The information was verified by the prosecuting witness, Frank Farris, and it charged the defendant with striking said Farris with a stove poker.

The defendant was arrested and filed a motion to quash the information, which motion was by the court overruled, and the defendant was arraigned and pleaded not guilty and was placed upon trial.

The information, omitting caption, was as follows:

"G. Purd Hays, prosecuting attorney within and for the county of Christian, in the State of Missouri, informs the court under his official oath and upon his best information and belief that L. M. Tooker, on or about the 24th day of December, 1903, at the said county of Christian, in the State of Missouri, in and upon the body of one Frank Farris, then and there being, feloniously, on purpose and of his malice aforethought, did make an assault, and did then and there feloniously, on purpose and of his malice aforethought, strike, beat and wound him, the said Frank Farris, in and upon the body, with a certain rod of iron, to-wit, a stove poker, which said stove poker was then and there of the weight of four pounds and of the length of three feet, and which said stove poker was then and there a dangerous and deadly weapon, likely to produce death and great bodily harm, which said stove poker the said L. M. Tooker then and there had and held in his hands, with intent then and there him, the said Frank Farris, on purpose and of his malice aforethought, feloniously to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.

"G. Purd Hays,

"Prosecuting Attorney.

"Frank Farris makes oath and says that the facts stated in the foregoing information are true according to his best knowledge, information and belief.

"Frank Farris.

"Subscribed and sworn to before me this 13th day of January, A. D. 1904.

(L. S.)

"Jno. F. Aven,

"Circuit Clerk."

The evidence developed at the trial of this case substantially shows the following state of facts:

The night of the difficulty, the 24th day of December, 1903, the defendant was the agent of the St. Louis & San Francisco Railroad Company at Billings in Christian county, Missouri, and in charge of the company's station at that point; on that day the prosecuting witness, Frank Farris, went to Billings to meet his sister who was coming from St. Louis. Farris went to the waiting room of the depot and was standing near the door; the defendant asked him to close the door and failing to get any response from him reached through the ticket window and swung the door on its hinges and it struck Farris; the prosecuting witness then turned around and slammed the door shut in rather a violent manner with a remark to the defendant, "Now your door is shut." The prosecuting witness testified that after this occurrence the defendant got an iron poker and came after him and that he backed off out to the railroad by the depot and after he got out there the defendant hit him with the iron poker on the head, which rendered him unconscious for about twenty-eight hours. The testimony disclosed by the record shows that the defendant, after the violent slamming of the door, ordered the prosecuting witness to get out of the depot, and that, in obedience to such order, Farris, the prosecuting witness, did leave the depot room and went out onto the platform and it was out there that the assault charged was made upon him. The testimony is somewhat conflicting as to how far outside of the door on the platform Farris was standing, but all of the evidence indicates that he had left the inside of the door and had gone onto the platform at least some distance when he was struck by the defendant with the iron poker. The testimony rather clearly indicates that after the prosecuting witness started to leave the depot room in accordance with the request of the defendant, the defendant followed him out onto the platform with the poker in his hand, and it was there that the assault was made by the defendant upon him. There is some testimony tending to show that Farris was picked up, after he was assaulted, about one hundred or one hundred and fifty yards from the depot, and that he could be traced by the trail of blood made along where he walked. The physicians who attended him stated that they found a wound on the left side of the head, just above the temple bone, and that it was about forty-eight hours from the time they got his wounds dressed and got him off home before he seemed to recognize or talk about anything. The prosecuting witness at the time of the difficulty was somewhat under the influence of intoxicating liquor.

The defendant introduced testimony showing his good reputation as a peaceable, quiet citizen. The defendant testified in his own behalf and gave substantially the following account of the difficulty: "Well, after train No. 4, that is, the east-bound train, passed, I went in and I passed a party there at the waiting-room door, and I went around the end of the partition and went into my office and came back to the ticket window, which is located two and a half or three feet from the corner of this waiting-room, and the door was standing open there and there were two or three people in the waiting-room, and this man that proves to be Frank Farris stood in the door near where the door hinges, and I asked him to step out of the door, and I reached through to shut the door, and I asked him the second time, and he moved slightly to one side and I supposed the door would clear him, and I merely reached through and gave the door a sling. It would not have knocked a baby down if it had struck him; but the door struck him along on the side and he whirled and grabbed the door with both hands and slammed it, and as the previous witness stated it shook the building, and it also shook it so hard that it broke a lamp, and when the panes cracked it knocked the cracked glass down on the platform. The jar was so great I turned around and said to him: 'If you had got out of the door as I asked you to do, that would not have been necessary,' and he said: 'Have you got some kick coming?' I said: 'Yes sir; you get out and go away from here,' and he made some remark and I started out of my office into the waiting-room to see that he did go away. I had other passengers there and I supposed I was put there to look after my company's interest, and I went out to see that he went away; and he stepped out between this door and bay-window, which is not exceeding six feet, possibly less. I stepped there and told him to get away, and he said it was a public place and he had a right there. I said: 'I don't want you around here.' With that he drew his hand from his pocket and he had something metal in his hand. I supposed it was a gun. I said: 'Put up that gun,' and I told him the second time to put up that gun, and I told him the third time. I said: 'If you don't put up that gun I am going to hit you,' and with that he rolled the instrument and the metal flashed in my eye, and I took no further chances. There is the sum and substance of the story." The defendant while on the stand in answer to the question, "Why did you strike him?" answered: "Because I thought he was either going to use a gun on me or something else; I knew he was fixed for action."

At the close of the evidence ...