State v. Foley

Decision Date27 June 1882
Citation12 Mo.App. 431
PartiesSTATE OF MISSOURI, Respondent, v. CON. FOLEY, Appellant.
CourtMissouri Court of Appeals

1. It is improper conduct on the part of the prosecuting attorney to tell the jury in his argument, that the prisoner is a desperado, when the latter's character has not been put in issue.

2. The giving of an instruction which the jury might understand as taking from their consideration one element of the prisoner's defence, is ground for a reversal of the judgment.

3. The question whether one charged with an assault with intent to kill is guilty of a felonious intent in committing the act charged, must be determined by the facts as perceived by him.

4. One who has good reason to, and does, believe that he is lawfully resisting a felonious assault is not guilty of an assault with intent to kill.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Reversed and remanded.

FRANK D. TURNER and THOMAS D. HARVEY, for the appellant: Improper language used by the prosecuting attorney in his argument is ground for a reversal.-- The State v Hopper, 71 Mo. 429; The State v Mahley, 68 Mo. 319; The State v. Lee 66 Mo. 167; The State v. Reed, 71 Mo. 200; The State v. Reilly, 4 Mo.App. 395. The attempted arrest and the killing of Coffey were not justifiable; for he had the right to resist an illegal arrest, and the arrest was illegal, unless the officer had lawful authority to make it, and executed that authority in a proper manner, and Coffey was apprised of that authority. Unless these three things concur to legalize the arrest, the killing of the officer will be but manslaughter at the most.--Rev. Stats., sect. 1826; 1 Bishop's Cr. Law (6th ed.), sect. 868, and cases cited; 2 Bishop's Cr. Law (6th ed.), sect. 699; 1 Whart. Cr. Law (8th ed.), sect. 419; The State v. Roberts, 14 Mo. 144; The State v. Green, 66 Mo. 646. " 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 Whart. Cr. Law (8th ed.), sect. 419; The State v. Roberts, 14 Mo. 144; The State v. Green, 66 Mo. 646; Yates v. The People, 32 N.Y. 509; Logan v. The Commonwealth, 38 Pa.St. 265; Johnson v. The State, 26 Tex. 117; Rafferty v. The People, 69 Ill. 111.

OPINION

LEWIS P. J.

The defendant was convicted and sentenced to the penitentiary for eight years, under an indictment for assault with intent to kill, on purpose and of malice aforethought, as the crime is defined in Revised Statutes, section 1262.

It appears from the record, that police officers Henley and Burke were ordered by the St. Louis chief of police to find and arrest one Coffey, on a charge of highway robbery; that at about midnight, the officers, dressed in citizens' clothes and exhibiting none of the insignia of their office, entered a drinking-saloon where Coffey and the defendant were, and seized upon Coffey to arrest him. Coffey resisted and drew a pistol, but was so held that he could not use it. In the struggle he called to the defendant who stood eight or ten feet off, to shoot his assailants. The defendant drew his pistol and snapped it at Officer Henley, and again cocking it, fired, but missed the officer. Henley then shot at the defendant, who escaped through a back door, turned, and fired back through the door. About a dozen shots were fired. Coffey was killed, presumably by pistolshots from one or both of the officers.

The error first complained of is, that the circuit attorney, against the defendant's objections, and without hindrance or rebuke from the court, was permitted to use the following language in his closing address to the jury:--

" And that is the character of the man, and that is the character of the place they were going into,--actually taking their lives in their hands,--and there is no man on this jury, who would have more bravely faced what those two men faced. I just ask you, however lion-hearted you may be, to put yourselves in their places--walking in there, into a saloon, in that part of the city, in the dead of night, face to face with two of the most terrible desperadoes of the city, to arrest one of them for highway robbery."

There is no difference, in principle or in effect, between the closing remark in the above quotation and the language of the prosecuting attorney which was strongly reprehended by the supreme court in The State v. Lee (66 Mo 165). It cannot be more prejudicial to a defendant, in the estimation of his triers, to say that he has not a good character, and therefore does not attempt to prove one, than to say that he is one of the most terrible desperadoes in the city. The character of the defendant in this case had not been put in issue by him, and it would not have been competent for the state to prove that he bore the character of a desperado. It is no more permissible for a prosecuting attorney to state as true what the law excludes from the hearing of the jury in the way of testimony, than for him to misstate the evidence and to declare as true the very reverse of what the testimony proves. Whatever prejudice may attach to the character of desperado, and...

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