State v. Renfrow

• Decision Date: 10 October 1892
• Citation: 20 S.W. 299,111 Mo. 589
• Parties: STATE v. RENFROW.
• Court: Missouri Supreme Court

20 S.W. 299

111 Mo. 589

STATE v. RENFROW.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

MURDER — CONSTITUTIONAL LAW — ACT CREATING COURT — COLLATERAL ATTACK — ARRAIGNMENT AFTER CHANGE OF VENUE — KILLING WRONG PERSON BY MISTAKE — TECHNICAL WORDS — DEFINITION — INSTRUCTIONS.

1. Until the constitutionality of an act of the legislature in establishing a criminal court in a certain county is questioned by the state, on the ground of insufficient population in such county, in a direct proceeding for that purpose, it will be presumed the legislature acted on sufficient information, and such act cannot be collaterally attacked in a criminal action on appeal from such court.

2. Rev. St. 1889, § 4167, provides that, after the court has acquired jurisdiction of a case by change of venue, "the same proceedings shall be had in the case in such court in the same manner and in all respects as if the same had originated therein." Held, that defendant in a murder case may be arraigned and called upon to plead in the court to which the venue has been changed on his application, when the same is done before the trial commences.

3. Where defendant, in an attempt to kill a certain person, by mistake accidentally kills another, the homicide thus committed is of the grade and degree that it would have been had the intention of defendant been accomplished.

4. Where technical words are defined in certain instructions, such words need not be again defined in other instructions in which they occur.

5. It is not error to use the word "should" instead of the word "might" in an instruction to the jury that they "should" take into consideration the fact, as affecting the credibility of defendant as a witness, that he is the accused party on trial.

6. Where defendant knew that deceased was a constable, it is not error to instruct the jury that a constable has the right to arrest, without warrant, any person committing or attempting to commit an offense in his presence, and that if they believed that defendant was committing an offense at the time of the killing, in the presence of deceased, then the latter had the right to arrest him without warrant, especially where the officer had verbal orders from a justice of the peace to make the arrest.

7. Where it appears that defendant may have been justified in carrying a revolver, because he had reason to believe some person other than deceased might attempt to take his life, such fact is no excuse for refusing to submit to a lawful arrest by deceased, or for killing him.

8. It appeared that defendant intended to

kill another than deceased at the time of the homicide. Neither the deceased, who was an officer, nor the person whom defendant intended to kill, was in a situation to carry out any design to do defendant any great personal harm, if he had such intent. Held, that it was not error not to instruct the jury that, if defendant shot at such other than deceased under such circumstances as would have been justifiable had he killed him, then he was also excusable in unintentionally killing deceased.

9. Where there is no evidence of manslaughter in any of its grades, it is not error to decline to instruct the jury as to that grade of homicide.

Appeal from criminal court, Greene county; M. OLIVER, Judge.

Indictment of Peter Renfrow for murder. From a judgment of conviction, he appeals. Affirmed.

James Orchard and L. O. Nieder, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted in the circuit court of Texas county for the murder of Charles D. Dorris. On his application a change of venue was awarded to the criminal court of Greene county, in which he was tried, found guilty of murder in the first degree, and sentenced accordingly. From this judgment he appeals to this court. The evidence on the part of the state shows, in substance, that on the 18th day of July, 1888, in the town of Summerville, Texas county, Mo., about 6 o'clock in the afternoon, a difficulty and fight occurred between Billy Renfrow, a brother of defendant, and a man named Hughes. Deceased, who was then constable of the township, with one McCaskell, separated the parties, and was standing with his hand on the arm of Billy Renfrow. A crowd of 15 or 20 persons had collected around these parties, when defendant was observed by P. P. Baskett, justice of the peace of the township, approaching the crowd with a pistol in his hand down by his side. The justice went towards deceased, and called out, "Arrest that fellow with a revolver." Some say he called to deceased to arrest him; others that he called to some one to arrest the man with the pistol. Defendant then put his hand in which he held the pistol under his coat, and started through the crowd, deceased following him. They both passed the crowd, and were about 30 feet apart, when deceased, walking after defendant, beckoned and called to him, saying, "Hold on, Peter; hold on;" at which defendant turned partly around, leveled and fired his pistol, striking deceased in the head, from the effects of which he died in about an hour. Defendant immediately fled, but returned in a few days, and gave himself up. He afterwards escaped from jail, but was recaptured. As defendant undertakes to justify the homicide, the full abstract of his testimony will be given. He testified in substance: "I am the defendant in this case. I was in Summerville in 1888. I was present when Dorris was killed. I was present at the time of the difficulty between Billy Renfrow and John Hughes. I did not see Charles Dorris at first. I saw him take hold of my brother. Tom Allen, Charles Cleveland, John Cleveland, and Cliff Spence are all that I remember being right there. The Cleveland boys were armed. I could not swear positively whether Harvey Burris was or not. I watched him all day. We had a few words in reference to a difficulty we had Sunday week before that. At the time Billy was into the difficulty, Charles Dorris came up and took hold of Billy. That is the first time I drew my pistol. When these parties rushed up there, I pulled the pistol out of my pocket, and dropped it down by my side. Some man said something about some fellow having a revolver. I turned around the crowd. Went around the biggest part of the crowd, and started eastwards, and passed right by Harvey Burris. I heard somebody say, `Arrest that fellow; he has got a revolver.' I thought it was Charles Dorris told Burris to catch him. I saw Burris start towards me. I thought he had something in his left band, and his right hand in his pocket, and I turned around and shot. I shot at Burris. I was told fifteen minutes before that that Burris said he would kill me. I was told about fifteen minutes before that Burris had said right there that he would take my life before the sun went down. Tom Allen was the man that told me that. I did not shoot at Dorris. I did not hear that I had killed Dorris till Friday morning. I thought I shot Burris all the time. I was on the go when I shot. When the pistol fired I was still going. I saw there was a big crowd after me. Friday morning I came in home, and my mother told me I had killed Charles Dorris. My feelings towards Charles Dorris were good. I had no hard feelings towards Charles Dorris in any respect." Cross-examination: "It was Friday morning before I knew Dorris was killed. I left and went to the woods, and never came in till Friday morning. I was at home when Dorris arrested my brother. I knew he was an officer. He was acting as constable at the trial in this case. I knew before the shot was fired. At the time I shot I intended to shoot Harvey Burris. He was a little back of Charles. I did not see Charles till he got out of the crowd; then I saw him. I heard him say something like, `Hold up, Peter.' I did not know for certain it was Charles. When he said, `Hold up, there, Peter,' I fired. I did not see Charles Dorris at the time I shot. I meant to shoot towards Harvey Burris. I knew Charles Dorris was following me. I was looking back and looking forward all the time. I knew Charles Dorris and Harvey Burris well. They did not look anything alike. At the time I drew that pistol Charles Dorris had hold of my brother. I knew Charles Dorris was not an enemy of my brother's. I thought he was his friend. I passed through the crowd and went on the north side, and started east. When I passed Burris I heard him say, `Catch him, Harvey.' He was walking towards me, and had something in his hand, and started to his hip pocket. That is all I saw. I could not say positively whether he had a revolver or not. There was a bulk of something in his hip pocket. I could not tell whether it was a revolver, or what it was. Burris and I had some words there that day. We made friends once. My brother came on to him about what he said about him to me. My brother had nothing to say to him before that. We did not make friends there and take a drink, — that is, he, my brother, and I. He and I made friends. Excepting what Burris had said about my brother, they were friends." Burris testified that he was following defendant, but stopped when he turned; deceased...