State v. Grant

76 Mo. 236

• Court: Supreme Court of Missouri
• Decided: October 15, 1882
• Status: Published

Opinion

Sherwood, C. J.

The defendant, a negro, was indicted for murder in the first degree, on trial had was convicted of that offense, and comes here alleging numerous errors as reasons for reversal of the judgment of conviction. We have attentively examined those errors and will discuss some of them in detail, and such others as we deem necessary to discuss, we shall do no more than briefly notice in a general way.

I.

And first, as to the authority of the deceased, a policeman, to make the arrest, as upon the existence of that hinges the whole case.

The local laws of 1874, page 327, relating to the City of Kansas, established a board of police to be called “The Police Commissioners for the City of Kansas.” Section 5 of that act defines the duties of, and confers certain powers upon, such board of police; which section as amended by section 3 of the act of 1875, page 193, is as follows:

“The duties of the board of police hereby created shall be as follows: They shall at all times of the day and night, within the boundaries of the City of Kansas, as well on water as on land* preserve the public peace, prevent crimes and arrest offenders, protect the rights of persons and property, * * see that all laws relating to pawnbrokers, intemperance, vagrants, disorderly persons, * * every other kind and manner of disorder and offense against the public health and good order of society, are enforced. They shall also enforce all laws and ordinances passed or which may be hereafter passed by the common council of the City of Kansas, not inconsistent with the provisions of this act, or any other law of this State which may be properly enforceable by a police force. In case they shall have reason to believe that any person within said city intends to commit any breach of the peace, or violation of law and order, beyond, the city limits, or j any person charged with the commission of crime in the ¡ City of Kansas, and against whom criminal process shall have been issued, such person may be arrested upon the same in any part of the State, by the police force created or authorized by this act,” etc., etc. ^

This section, in its first part, as will be observed, makes it obligatory on such board, “ at all times of the day and night within the boundaries of the City of Kansas,” to “ prevent crimes and arrest offenders,” and “ protect the rights of persons and property.” The power of the board to “ arrest offenders,” it will be observed, is not coupled with any conditions with respect to a warrant being first obtained, but the grant of power is a general one, at least so far as concerns the arrest of “ offenders.” From this we may reasonably infer that the legislature intended by that section, to confer upon the board of police similar powers to those conferred by section 4821, (R. S. 1879,) which authorizes certain officers in cities of the second class, “ to arrest, or cause to be arrested, with or without process, all persons,” ete. And this view finds additional support when we consider a subsequent clause of the section under discussion, which authorizes the police force to arrest in any portion of this State persons in the city who intend to violate law beyond the city limits, or who are charged with the commission of crime in said cjty and “ against whom criminal process shall have been issued.” This construction is conformable to a familiar rule, as the legislature, by thus particularly specifying the occasions when the issuance of criminal process is necessary, may be presumed by such affirmative specification to exclude any implication for the necessity of such process except upon the occasions mentioned. Ex parte Snyder, 64 Mo. 58, and cases cited. And section 6 of the act of 1874, not repealed by anything contained in the amendatory act of 1875, gives power to the police commissioners, through the agency of a police force, vicariously to perform the duties which section 8 of the other act imposes. ' From these we may conclude that the power of a member of the police force to “ arrest offenders ” is not confined to any particular class of offenders or any grade of crime, but applies as well to misdemeanors as to felonies; provided always, that the officer who arrests for a past misdemeanor, has the same grounds of reasonable suspicion as would justify him at common law, in arresting for a felony already committed. For it is not to be intended that the legislature designed by that statute to countenance or authorize that a citizen be deprived of his liberty upon the mere whim, caprice or rash assumption of his guilt by an officer. But even at common law, though an officer could not arrest for a past misdemeanor, yet might he arrest, if he did so flagrante delicto. S Greenleaf Ev., § 128, and cases cited.

In the case before us, the testimony showed that the butter was actually stolen from the possession of Adams Express Company, and tended to show that it was in the act of being carried away, at the time of the attempted arrest. The value of the butter was not proven, nor was it material, considering the statutory powers of the officer as aforesaid, and the tendency of the testimony to establish that a larceny, petit it may be, was then being committed, and the further tendency of the testimony to show that the policeman had a reasonable suspicion that a misdemeanor had been committed, or was, in one sense, then in process of accomplishment.

It has been strenuously insisted that the larceny was complete at the time that the defendant and his companion passed by Fleming’s saloon, and in one sense this is true. But it is also true, considering the distance from where the prisoner was observed with the butter, to the point where the larceny of it was committed, from 300 to 500 yards, there was sufficient evidence to go to the jury that the taking of the butter, and its being carried away, was, up to the point where the prisoner was observed, one continuous act. If a person, with larcenous intent, should barely raise an article from the floor, the caption and asportation would be so far complete, as to make the act a criminal one. But could the act as to one of the elements of the larceny, the asportation, be still regarded incomplete—be still regarded a continuing act—so long as the original captión was still unbroken, and the original asportation was yet in progress? We are of opinion that so it should be regarded.

If this be so, then the officer, even at common law, treating the crime as a mere misdemeanor, would have been fully justified in making the arrest. And certainly he was thus justified under the more ample powers conferred by the statutory provisions heretofore quoted.

In this view of the matter the first instruction given by the court of its own motion, was correct. That instruction is evidently framed on the double theory of a crime being then committed, and of the officer having ground to suspect that such was the fact. At the common law, as already seen, if the crime were a past felony, and the officer had a reasonable suspicion that the person he tried to arrest was guilty of the offense, this would justify him; and also he would be justified, if the misdemeanor were then in progress; and also, as already seen, under our construction of the statute, he would be justified if the offense, a misdemeanor, was then being committed, or were only a past misdemeanor and he had a reasonable suspicion as aforesaid. Taking this view of the instruction, it would be good on either of the grounds stated, and if good on either of those grounds, the jury were not misled, nor the defendant prejudiced by it.

It is true that the usual and perhaps better term, “reasonable suspicion ” is not employed in the instruction, but, we think the word “believed” is equivalent thereto, and Was so understood by the jury. One of the ordinary definitions of belief is “partial assurance without positive knowledge or absolute certainty.” “Webster. And by another authority it is defined as “ a persuasion of the truth * of a fact, formed in the way of inference from some other fact.” Burrill Law Diet., title Belief. This would certainly be tantamount to, or even a stronger form of expression than “ reasonable suspicion,” or “probable grounds;” for either may exist, and yet no belief be generated in the mind. And the bases of “ probable grounds ” are very many, e. g., common fame, hue and cry levied, goods found on a person,” etc. 2 Jac. Law Dict., title Constable, p. 41.

But notwithstanding the instruction was good as against the objections already considered, it was faulty in not instructing the jury in respect to the element of the knowledge of the defendant of the official character of the deceased. This element is altogether absent from the instruction, nor is the lack supplied by any other. This point should have been submitted to the jury, as by failing to submit it to them, they may have thought it wholly immaterial whether the defendant was aware that the deceased was a policeman at the time of the attempted arrest. State v. Underwood, 75 Mo. 230. Mr. Wharton says on this subject: “Nor should it be supposed that this exemption from distinctive liability in cases where the officer’s official character is not known, is founded on technical reasoning. Not only .is it essential to the rights of the citizen that he shall be required to submit to arrest only when the official character of the demand is made known to him, but it is essential to the dignity of the State that its servants should be sheltered by these official prerogatives only when they are acting legally, and give notice that they so act.” 1 Crim. Law, §§ 419, 648.

II.

The second instruction given at the instance of the State, though technically incorrect, did no harm, if the official character of the deceased was known by the defendant, as in that event, there was no proof of lawful or any other kind of provocation which could reduce the grade of the crime charged. State v. Talbott, 73 Mo. 347; State v. Ellis, 74 Mo. 207.

III.

The third instruction for the State is not obnoxious to the objection that it assumes the existence of premeditation and deliberation ; it simply declares the law as heretofore asserted by this court, that the deliberation and premeditation necessary to constitute murder in the first degree, may be inferred from all the facts and circumstances of the killing. State v. Talbott, supra, and cases cited,

IY.

Counsel for defendant claim that it was error to submit to the jury the question of murder in the first degree. "We are of a different opinion. The defendant confessed the homicide to Carter, to Lockridge and to Jackson. The bullet in Jones’ body was identical’in shape and size with cartridges found on defendant at the time of his arrest, which occurred on the night of the killing. The officer was clothed in his uniform, had oü his star, and was acting within the limits of his jurisdiction ; from which it may be inferred that defendant was acquainted with his official character. Roscoe Crim. Ev., 760. Besides, defendant’s statement to Carter that “ the policeman tried to get it on to me, but I got on to him first,” tended to show that defendant knew the official character of the officer at the time he fired the fatal shot. The officer was found dead, on his back, on the ground, with his hands stretched out, and his pistol and his club both in his belt; which physical facts strongly tended to negative the statement of the defendant that the policeman had endeavored first to shoot him. Erom these facts and circumstances the jury were well warranted in inferring, as by their verdict it appears they did, that defendant was guilty of the highest grade of homicide; and if there was anything which would lessen the grade of the offense, it belonged to him to prove the matter of extenuation. 8 Greenleaf Ev., § 144; Comm. v. Webster, 5 Cush. 304; Rex v. Greenacre, 8 C. & P. 35 ; but this he wholly failed to do, so that the facts and circumstances attendant on the homicide, and from which, as heretofore stated, the jury might legitimately infer premeditation and deliberation were left wholly unexplained and unextenuated.

The court, out of abundant caution, gave, on its own motion, an instruction on the subject of self-defense, and also one on the subject of manslaughter in the fourth degree. Of these it is unnecessary to say more than that they were very favorable to the defendant.

So far as concerns the other instructions given on the part of the State, and on behalf of the defendant, taken in connection with those already commented on, they presented the law of the case very well to the jury, with the exceptions noted in the first and second paragraphs of this opinion.

V.

There was doubtless error in refusing to allow Dr. Shipley to testify concerning the general moral character of the witness Miller. State v. Miller, 71 Mo. 590, and cases cited. But we can scarcely see how this ruling could have seriously prejudiced the defendant, as he admitted the homicide, and the testimony of Miller went to identify defendant as one of the parties whom the officer tried to arrest. And the residue of Miller’s testimony was almost entirely corroborated by that of the wife of the policeman. However, the error can be corrected when this cause goes back for re-trial.

As to the other errors assigned, it is not necessary to notice them, as they may not occur again.

For the error committed in the first instruction given by the court on its own motion, the judgment will be reversed and the cause remanded.

All concur.