State v. Flynn

94 S.W. 543, 119 Mo. App. 712, 1906 Mo. App. LEXIS 274

• Court: Missouri Court of Appeals
• Decided: June 5, 1906
• Status: Published

Opinion

GOODE, J.

(after stating the.facts). — We have given an elaborate statement of the facts of this case because, though it is a conviction for a misdemeanor, the alleged misconduct of the defendant was one which vitally concerns the welfare of the community and the rights of its citizens. The indictment rests on this section of the statutes:

“Every officer or person holding any trust or appointment, who shall he convicted of any willful misconduct or misdemeanor in office, or neglect to preform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.” [R. S. 1899, sec. 2105.]

Beyond question the evidence tended to sustain the allegations of the indictment. That qualified voters who were waiting in line at the polling place to cast their ballots were interfered with and obstructed in that duty, driven out of line and others put in their places, and they subjected to violent and well-nigh felonious assaults, is a conclusion fairly to be drawn from the testimony. So is the conclusion that the defendant stood by and witnessed those outrages without arresting the perpetrators, interfering for the protection of the wronged citizens, attempting to keep the public peace or in any way asserting his authority as a police officer. We are not to be understood as passing on the merits of the case and deciding that the defendant’s guilt was established. There was strong testimony in his favor, going to show ho did his entire duty and was not delinquent in any respect. What we say is that the jury’s verdict of guilty is supported by abundant evidence. It goes without saying that if a police officer charged with the duty of keeping the peace and protecting citizens while exercising the right of suffrage, permits rioters to assault peaceable men and drive them from the pools, he is guilty of culpable neglect of duty, unless he is powerless to prevent the crimes. The statutes in regard to primary elections in cities of 300,000 inhabitants and over, create'certain misdemeanors in connection with primary elections. Among other things it is provided that any person who in any manner interferes ■ with- the officers holding any primary election or conducting the canvass of votes cast thereat, or with voters lawfully exercising or seeking to exercise their right of voting at such primary elections “shall be deemed guilty of a misdemeanor (Session Acts 1901, section 25, subdivision 3, p. 1644; approved March 13 1901). 'The men who pulled voters out of line at the polling place in the Twenty-eighth ward, assaulted them and put others in their places, flagrantly violated the above statute. Noav if those offenses Avere committed in sight of the defendant, while he was there as a police officer, it was certainly his duty to interfere Avhen called on for protection by quiet citizens. We have other statutes providing that it shall be the duty of police boards to preserve the public peace, prevent crime, arrest offenders and preserve order at every public election, and at all public meetings and places. To enable the boards to discharge these duties they are empowered to employ a roll of permanent police officers. [Secs. 6212, 6213, R. S. 1899.] It is provided, too, by the statutes, that every police officer in the city of St. Louis is a State officer. [Sec. 6232, R. S. 1899.] In view of the above legislation there can be no doubt, we think, that it was the duty of the defendant to arrest persons who obstructed the voting at the polling place in question by assaulting the voters. According to the Avitnesses for the State, the offenses were committed in defendant’s view; and, if so, he could have arrested the offenders without warrants. [State v. Grant, 76 Mo. 236; State v. Hancock, 73 Mr. App. 19.] From ancient times the law has been that sheriffs, constables and other police officers have authority to prevent riots, keep the peace and arrest persons who raise riots and affrays, and are punishable on indictment for willfully refusing to do so. [2 Wharton, Criminal Law (10 Ed.), sec. 282; Rex v. Pinney, 5 C. P. 254; Rex v. Kennett, Id., 282; Reg v. Neale, 9 C. & P. 431.] To tlie first of those cases is appended a note which goes extensively into the question under advisement. The conditions depicted by the witnesses for the State in the present case, shoAV that a band of rioters were engaged in law-breaking at the polling place in the TAventy-eighth ward for the purpose of intimidating voters and preventing a fair election, with the ultimate design of having a majority returned at that poll for delegates who were preferred by the rioters. Various assaults and outrages were perpetrated to accomplish this unlaAvful end, the witnesses say, in defendant’s sight and observed with such indifference on his part, and such threatening responses to those who appealed to him for protection, as strongly incline to prove he was in sympathy with and conniving at the offenses. In the cases last cited it was ruled, in effect, that a police officer of whatever grade, AA'ho does not, in emergencies such as were presented to the defendant, exercise reasonable authority, firmness, courage and activity to suppress law-breakers, is himself guilty of an offense. No doubt a police officer is granted a discretion about making an arrest or otherwise using his authority; but this discretion will not exonerate him from criminal responsibility for omitting to arrest rioters who commit crimes before his very eyes; especially when his assistance is invoked by peaceable citizens Avho are the victims of the outrages. There was no room for a finding that defendant abstained from interference because, in his judgment, the public welfare would be better subserved by that course, if the jury foun'd the offenses were committed in defendant’s sight and he had the power to prevent them but refused to do so. An officer is not to be blamed for failing to do more than reasonably conld be expected of hm. His activity to keep the peace in a given instance must be in proportion to his ability, the circumstances considered, to deal with the disturbers. The defendant’s rights in all these regards were recognized and guarded in the instructions. The jury was advised that if the alleged assaults on voters occurred, but not in his immediate view, or if they occurred in his immediate view and presence but he did not have the power, authority and means at his hands to prevent them, the jury should find him not guilty. In truth no point was made about the defendant’s authority to arrest offenders and prevent their interference with voters, or that he refused to do so because he lacked power, or because, in his discretion, he deemed it wise to overlook the unlaAvful occurrences. The defense Avas that he saw no offenses committed of the sort described by the State’s witnesses, but only some trifling altercations among the Aroters themselves, which he interfered with as far as was necessary. There was a clear conflict between the witnesses regarding the facts, and the jury had to Aveigh the evidence to determine what the truth was.

It is contended that, granting defendant refused to make arrests, or to prevent unlaAvful interference with voters, when he could and ought to have done so, there was no allegation or proof that his conduct was corrupt. No evidence Avas introduced to prove it was in the sense that it Avas induced by bribes or hope of gain; but, in our opinion, the evidence for the State justified the conclusr ion that his conduct was corrupt in the sense that, from some unworthy reason, he willfully refused to perform a plain duty which called urgently for performance. But the vital question in this connection is whether it was necessary for the indictment to aver that he acted corruptly and the instructions to require a finding that he did. We hold that such an allegation and finding were not essential and think the authorities support us. Cases are cited construing the statute on which the present indictment is founded, which held indictments bad for lack of an averment that the breaches of official duty charged were committed corruptly. [State v. Gardner, 2 Mo. 23; State v. Newkirk, 49 Mo. 85; State v. Hein, 50 Mo. 362; State v. Pinger, 57 Mo. 243; State v. Kite, 81 Mo. 97; State v. Grassle, 74 Mo. App. 313.] Each of those prosecutions was for misconduct in the performance of official duty of a judicial character and where the very essence of the offense was a corrupt motive; as there was a discretion lodged in the official and opinions might differ about the propriety of the alleged wrongful act unless it was corruptly done. Those cases have all been reviewed judicially and the scope of the doctrine they announce defined. [State v. Ragsdale, 59 Mo. App. 590.] The rule that a corrupt motive must be alleged and proved, applies where the misconduct related to judicial or qu^sijudicial duty. In cases where the rule was applied, the reasoning of the opinions and the authorities cited, show it pertains only to acts which, in the nature of things, would not be criminal unless they were inspired by a corrupt intent; and this was the view adopted in State v. Ragsdale. That case was a prosecution of the mayor of a city for oppression in office and was founded on the same statute involved in this prosecution. The information accused the mayor of having acted corruptly; but the trial court refused to charge the jury that they must find he corruptly, knowingly and willfully, was guilty of oppression in office. The court struck the word “corruptly” out of the instructions. At common law indictments of judicial officers for misconduct in the performance of duty were always required to charge they acted corruptly. The ancient and modern precedents, and the forms of criminal pleadings given by approved text-writers, conform to that rule. On the other hand indictments for official misconduct in the performance of executive and ministerial duties usually do not contain an averment that the misfeasance was corrupt; and many convictions have been sustained without an averment or proof of that kind, though the point was distinctly made that it was necessary. [Rex v. Holland, 5 D. & E. 607, 623; Rex v. Saintsbury, 4 D. & E. 451, 457; Rex v. Pinney 5 C. & P. 254; People v. Norton, 7 Parb. 477, 479; State v. Bixon, 2 Swan 57; People v. Brooks, 1 Denio 457; State v. Hatch, 116 N. C. 1003.] The-underlying principie of the distinction appears to be that when the official act complained of is of doubtful legality, and the official enjoyed a discretion in the performance of his duties, he cannot be convicted of acting wrongly unless he acted corruptly. But when the illegally of the act is palpable, then willful and intentional delinquency on the part of an official, whether it be a non-feasance or a mis-feasance, is indictable even though his motive was not corrupt in the sense that he sought personal profit. We have already indicated sufficiently that affairs at the polling place in the Twenty-eighth ward at the time in question obviously-demanded action by the defendant in the interest of the public peace and the rights of citizens. If he Avitnessed repeated infractions of the law of the kind in proof and had the force at hand to cope with the malefactors, he laid himself open to punishment by refusing to do anything.

The indictment is said to be duplicitous in that it charges several distinct offenses. It charges only one offense and that is that certain named citizens were unlawfully obstructed while waiting to vote and the defendant stood by and saw this done without going to their assistance. It is true the indictment details the manner in Avliich the voters were molested, namely; by being pushed out of line and assafilted; but the offense charged is that defendant permitted the voters to be interfered with and obstructed.

It is further said that no proof Avas introduced that the Democratic party cast 10,000 votes at the election in November, 1902, prior to the primary election in question, and hence it was not shown that said party had any right to hold a primary election. ■ The statute classes as political parties which are entitled to hold elections under the Primary Election Law in cities having 300,000 inhabitants or more, those political organizations which cast 10,000 votes for Governor or Supreme Judge at the last election. This court can take judicial notice that the Democratic party cast more than 10,000 votes in Missouri at the election in 1902. [In re Denny, 51 L. K. A. (Ind.) 722.]

The foregoing observations give the conclusions reached by this court regarding the legal propositions in the present case. The opinion was prepared prior to the decision by the Supreme Court of the case of State v. Boyd, --Mo.-. That case was an indictment against defendant Boyd, who was a member of the St. Louis police force, for misconduct in office, to-wit; the willful and knowing neglect of an official duty. The Supreme Court in a carefully considered opinion, expressly decided that such an indictment was fatally defective if it did not contain an averment, not only that the violation of an official duty was knowingly and willfuly committed, but also that it was corruptly committed. According to that determination by the court of last resort in this State, the indictment in the present case is fatally defective and, therefore, we reverse the judgment.

All concur.