State v. Coleman

69 L.R.A. 381, 84 S.W. 978, 186 Mo. 151, 1905 Mo. LEXIS 306

• Court: Supreme Court of Missouri
• Decided: February 2, 1905
• Status: Published

Opinions

BURGESS, J.

— At the September term, 1903, of the circuit court of Chariton county the defendant was convicted of murder in the second degree, and his punishment fixed at twenty years’ imprisonment in the penitentiary, under an information filed in the circuit court of said county by the prosecuting attorney of said county charging him with having shot to death with a. pistol at said county on the eighth day of August, 1903, one Rufus Cox, against the peace and dignity of the State. Defendant appeals.

The facts, briefly stated, are, that at the time of the homicide the defendant was marshal of the town of Dalton in said county. Deceased lived in the county, and on the day he was killed had gone to Dalton, taking some fish with him for sale, and was vending them upon the sidewalk of the town, in violation of a resolution of the board of aldermen of the town which the-marshal understood had theretofore been adopted.

When Cox arrived in town he established himself upon the sidewalk and began selling his fish. The defendant, as marshal, advised Cox that an ordinance had been passed prohibiting the use of the paveipent for such purposes and requested him to move his fish to some other place. It seems that the deceased at first-demurred; but finally reluctantly removed his fish at the request of the defendant to the inside of a store, and remained in the store until late in the afternoon, when he again placed his fish upon the sidewalk. The defendant again remonstrated with him against using the sidewalk for the purpose, and attempted to get him to remove his fish. This the- deceased declined to' do, whereupon the defendant attempted to arrest him and lead him away, in pursuance of which defendant laid his hands upon the deceased upon three different occasions and on each occasion the deceased freed himself from the grasp of defendant.

The testimony on behalf of the State tends to show that the deceased did little more than decline to accompany the defendant, and that, because of his declination, and without other provocation, the defendant drew his pistol from his pocket and shot him to death.

The evidence shows that the defendant fired four shots, from the effects of which the deceased immediately died. The evidence on behalf of the defendant tends to show that after he had tried to place the deceased in his custody, the deceased put his hand in his pocket, and that thereupon the mortal shot was fired.

The defendant states on direct examination that he shot deceased in order to protect himself from bodily harm.; hut his cross-examination shows that he shot the deceased because the deceased failed to remove his hand from his pocket when defendant requested him to do so. His own testimony does not suggest that he was in imminent danger of attack, or that he had any cause to believe that he was in imminent danger. His whole testimony goes to show that he murdered the deceased because the deceased would not remove his hand from his pocket.

There are a number of assignments of error which we do not think of sufficient importance to demand our attention,- for in no event could the judgment he reversed because of tbe rulings of tbe court below upon them, so that we will direct our attention to such matters as seem to require more serious consideration.

The first of these is in relation to the testimony of one James Winkler, a witness for the State, who testified over the objections of defendant to threats made by defendant a year or eighteen months before the trial that he was going to shoot Rufus Cox, having prepared himself with a shotgun for the purpose, and was lying in wait for him, but that the witness discovered defendant and dissuaded from his purpose. The contention is that the threats were too remote to be competent and especially so since there was no evidence of any threats or bad blood on the part of the defendant since that time. But it is well settled that in trials for murder threats made by the defendant towards the deceased are competent, and the nearness or remoteness of the time when made to the date of the homicide do not affect their competency as evidence. [State v. Adams, 76 Mo. l. c. 357; State v. Grant, 79 Mo. l. c. 137; State v. McNally, 87 Mo. l. c. 650; State v. Glahn, 97 Mo. l. c. 689.]

Defendant complains of the action of the court in permitting the attorney for the State to read to the court, in the presence of the jury, the verdict of the coroner’s jury. It was not read in evidence, but the attorney for the State asked witness Davenport whether he as a member of the coroner’s jury returned a certain verdict. The question was objected to and the objection sustained. No objection was made to the action of the prosecuting attorney in propounding the question. Under such circumstances it should not be assumed that the jury could have inferred that the witness returned such a verdict as the attorney for the State suggested, nor could the jury have inferred that the witness returned any verdict as a member of the coroner’s jury. While statements of attorneys in the presence of a trial jury, and questions they propound, are not evidence, they should not he permitted to make statements or ask questions from which the jury could infer that the matter about which such statements may he made, or questions asked, is in fact true. But we do not think any such inference could have been drawn by the jury in this instance. Had the witness answered that he did return such a verdict there would be more merit in the contention. ■ There is no question but that the verdict of the coroner’s jury was inadmissible for any purpose, and when the prosecuting attorney asked the witness if he returned the verdict, to-wit: “Upon formal inquiry concerning the facts and careful examination of the body, we find the deceased came to his death by a wound from a pistol fired from the hands of Jasper Coleman, of Dalton, Missouri, and from evidence we find that the killing of Rufus Cox by Jasper Coleman was unjustified,” objection was made by defendant, and was promptly sustained by the court. The killing is admitted, but attempted to be justified upon the ground of self-defense, so that if defendant was in any way prejudiced by propounding the question to the witness with respect to the verdict, and reading the verdict in the presence of the jury, it was by the use of the words that the killing “was unjustified,” at the conclusion of the verdict, but we do not think the verdict should be set aside on that ground. And as there was no exception taken to the action of the prosecuting attorney in propounding the question, we do not think he was guilty of such impropriety as would justify this court in interfering with the verdict upon that ground, especially as the trial court refused to set aside the verdict on that ground. [Hollenbeck v. Railroad, 141 Mo. 97.]

It is said for defendant that the evidence was insufficient, under all the facts in the case, to convict the defendant of any offense with which he is charged in the information.

That the defendant was an officer of the law, and that the deceased knew him to be such, is clear. It is equally clear under the facts of this case that it was the duty of defendant as such officer to arrest the deceased, and to use sufficient force to accomplish the arrest and bring the deceased within his control, but if he used more force than was reasonably necessary for that purpose and killed Cox, he was guilty of a criminal offense, its grade depending upon the facts and circumstances in evidence. [State v. Dierberger, 96 Mo. 666; State v. Rose, 142 Mo. 418; State v. Lane, 158 Mo. 572.] There was, we think, an abundance of evidence to take the case to the jury upon this feature of the case.

It is also claimed by defendant that the court erred in giving instruction numbered four, because of the want of testimony upon which to base it. It reads as follows:

“4. Court instructs the jury that if verbal statements of the defendant have been proven in the case, you may take them into consideration, with all the other facts and circumstances proved. What the proof may show you, if anything, that the defendant has said against himself, the law presumes to be true, because said against himself, but anything you may believe from the evidence the defendant said in .his own. behalf you are not obliged to believe, but you may treat the same as true or false, when considered with a view to all the other facts and circumstances in the case. ’ ’

Conceding that there was no evidence upon which to base the instruction, we are not inclined to think the judgment should be reversed upon that ground. Certainly this could not be done unless the error was prejudicial to defendant, and, while the presumption is that an error made against a defendant when on trial for crime is prejudicial, this presumption may be overcome by the facts and circumstances in evidence if sufficient, and we can but conclude from the facts disclosed by the record that the error was not prejudicial. In fact, we are unable'to see in what way defendant was prejudiced, and we are of the opinion that he was not; hence the error was not prejudicial. 1

Instruction numbered eight, given on the part of the State, is also complained of. This instruction reads as follows:

< < recor¿s ordinances, and as well also the verbal testimony of Mayor Seigle, have been admitted in evidence before the jury as tending to prove defendant’s good faith in attempting to arrest deceased, but the jury are instructed that under the said ordinances and records the selling of fish or an obstruction of the sidewalk did not constitute an offense thereunder and does not justify or excuse the defendant for shooting deceased.”

This instruction seems to us to be misleading, in that while it tells the jury that the records, ordinances and the verbal testimony of Mayor Seigle are admitted in evidence as tending to prove defendant’s good faith in attempting to arrest deceased, it proceeds to say, “but . . . under said ordinances and records the selling of fish or the obstruction of the sidewalk did not constitute an offense thereunder, and does not j%istify or excuse the defendant for shooting deceased;” and so couples the absence of excuse for shooting deceased with the preceding part of the instruction as to neutralize the question of good faith on the part of defendant in his efforts to make the arrest. In a word, want of excuse, as here used, seems to be inconsistent with good faith.

It is insisted by defendant that instruction numbered nine, given on the part of the State, is erroneous, in that it omits the question of reasonable doubt, but this question is covered by one general instruction given upon the part of the State, by which the jury were told that before they could convict the defendant they must find him guilty as charged beyond a reasonable doubt. This was all that was necessary. It is not essential that it should be repeated in any other instruction.

It seems that the court struck out that part of instruction numbered eleven, asked by defendant, which told the jury that defendant had the right to take the life of the deceased in the event of the failure of deceased to submit to arrest, and then gave it, and in so doing, defendant insists, committed error. If the attempt to arrest deceased had been for felony committed by him, defendant’s contention would be correct, but where the attempt to arrest is for a misdemeanor, or breach of the peace, “it is not lawful to kill the party accused if he fly from the arrest, though he can not be otherwise overtaken, and though there be a warrant to apprehend him. . . . But, as in case of felony, so here, if the officer meet with resistance and kill the offender in the struggle,' he will be justified.” [1 East, Pleas of the Crown, 302.]

“"When, as a general proposition, one refuses to submit to an arrest after he had been touched by the officer, or endeavors to break away after the arrest is affected, he may lawfully be killed, provided this extreme measure is necessary.” [2 Bishop’s Crim. Law, sec. 647.]

In the case of State v. Dierberger, 96 Mo. l. c. 674, it was said:

“These authors, ancient and modern, lay down the law in substantially the same terms. They show that the protection which an officer is entitled to receive is a different thing from self-defense. The officer, when making an arrest, may, of course, defend himself, as may any other person who is assaulted; but the law does not stop here. The officer must of necessity be the aggressor; his mission is not accomplished when he wards off the assault; he must press forward and accomplish his object; he is not bound to put off the arrest until a more favorable time. Because of these duties devolved upon him, the law throws around him a special protection. As we said in the recent case of State v. Puller, ante, p. 165, his duty is to overcome all resistance and bring the party to be arrested under physical restraint, and the means he must use must be coextensive with the duty.” [State v. Rose, 142 Mo. 418.]

But in the case at bar the deceased was not guilty of either a felony or misdemeanor, nor even of the violation of the town ordinances, and the court in effect so declared. But defendant had the right to arrest for the violation of a town ordinance committed in his presence, had such been the case. Deceased had been selling or offering for sale fish on the sidewalk, to defendant’s personal knowledge and in his presence, whereupon he reported the fact to the chairman of the town board, who advised him that it would be necessary to go and kindly ask Mr. Cox to take his fish off of the sidewalk, and, if he refused to do so, it would be his duty to remove the fish from the sidewalk himself, and in case he became loud or noisy or swearing, he should arrest him for disturbing the peace of the town, and in attempting to comply with the direction of the chairman of the board, the homicide occurred, as before stated. It thus seems that defendant had good reason to believe that he had the authority to arrest deceased, and if, when making such arrest, he was acting in good faith, and deceased resisted, he had the right to apply force to accomplish it, and if it became necessary to kill him to save his own life or person from great bodily harm, he had a right to do so. [State v. McNally, 87 Mo. 644.]

As was in effect said in State v. Dierberger, supra, the defendant had a “right in his effort to make the arrest, to use all force that was necessary to overcome all resistance, even to the taking of life, and if he used no more force than was reasonably necessary to then and there accomplish the arrest, then he should he acquitted.” But although defendant may have-believed he had authority to arrest the deceased, yet if in so doing he used more force than was reasonably necessary to accomplish the arrest and shot and killed the deceased in malice and with premeditation because he did not remove his hand from his pocket, when commanded tó do so by defendant, defendant was guilty of murder in the second degree, unless acting in self-defense. But if defendant used more force than was reasonably necessary in making the arrest, he was guilty of manslaughter in the fourth degree. [State v. Rose, supra.]

But no instruction was asked on manslaughter in the fourth degree, nor was the court’s attention called to its failure to instruct upon the law of the case, hence there was no error in its failure to do so. [State v. Cantlin, 118 Mo. 100; State v. Waters, 156 Mo. 132; State v. Furgerson, 162 Mo. 668.]

Defendant insists that the court erred in refusing to give the first, second, third and fourth instructions asked by him. These instructions are all predicated on the theory that the deceased was violating an ordinance of the town when defendant attempted to arrest him, when in fact there was no ordinance prohibiting the sale of fish on the streets of said town, and, were therefore, properly refused.

Another contention is, that the information is bad in that it only charges manslaughter in the fourth degree, if in fact it charges any offense at all.

The objection to the information is that it does not conclude, “and so the said L. N. Dempsey, prosecuting attorney within and for Chariton county, Missouri, as aforesaid, ‘upon Ms oath’ says that he, the said Jasper Coleman, him, the said Rufus Cox, in the manner and form, and by the means aforesaid,’ etc., but omits the words, “upon his oath says,” etc. Indictments for murder concluding substantially the same way have frequently been held bad by this court. [State v. Meyers, 99 Mo. 107; State v. Stacy, 103 Mo. 11; State v. Furgerson, 152 Mo. 92.]

At common law all indictments for murder were prosecuted by indictment and concluded as follows: “And so the jurors aforesaid upon their oath do say that the said A. B. him the said E. F. in manner and form aforesaid, feloniously, willfully, and of his own malice aforethought did hill and murder.” [1 Wharton’s Precedents of Indictments and Pleas, 114; 5 Chitty, Crim. Law, 738; Kelley’s Crim. Law and Prac., 309.] In State v. Meyers, supra, Sherwood, J., in speaking for the court, said: “All the authorities show the proper conclusion of an indictment for murder marks the feature of that offense which distinguishes it from manslaughter. Without such conclusion, the previous words charged but the latter offense. [2 Bish. Crim. Proc., secs. 536, 548, 550; 3 Chitty’s Crim. Law, 737; Ib. 243.] Hence the importance of the conclusion in the count for murder. That conclusion, in. order to be valid, charges murder as the result of the previously made allegations.” Without such conclusion, the offense charged would be but manslaughter.

In 2 Hawkins’ Pleas of the Crown, pp. 369 and 370, it is said: “Having already in the chapter of indictments incidentally shown the principal points relating to this matter, I shall only take notice in this place, that, seeing an information differs from an indictment in little more than this, that the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it, whatsoever certainty is requisite in an indictment, the same at least is necessary also in an infortion and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital. ’ ’

In State v. Kelm, 79 Mo. 515, it is said that an information differs principally from an indictment in this, that an indictment is an accusation found hy the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it — citing Bacon’s Abr., pp. 167-170, 172; 2 Hawk. P. C., ch. 26, sec. 4. Therefore, being of the same dignity, and for the same purpose, they must in cases of murder be governed in their material allegations by the same law. Therefore, the information is invalid, and being so, the question may be properly raised for the first time in this court, and while it cannot be amended in this court, it may be amended as to matter of form or substance at any time by leave of court before trial. [Sec. 2481, R. S. 1899.] Our conclusion is that an information for murder should conclude, “And so the prosecuting attorney aforesaid upon his oath does say that the said ——— him, the said---, in manner and form, feloniously, deliberately, premeditatedly and of his malice aforethought, did kill and murder.”

Depositing of the affidavit of Robert Cox with the clerk of the circuit court of the county was sufficient filing within the meaning of section 2477, Revised Statutes 1899. But even if it were not, the failure of the clerk to endorse upon it “filed,” and the date thereof, was at most an irregularity which could have been amended at any time before or during trial, and can not be raised for the first time in this court.

For these intimations the judgment is reversed and the cause remanded.

Brace, C. J., Fox and Lamm, JJ., concur; Valliant,J., concurs except as to the State’s fourth instruction which he thinks is erroneous; Gantt, J., concurs in all that is said except as to the form of the information, from which he dissents; Marshall, J., absent.