Davis v. Moore
| Decision Date | 28 June 1977 |
| Docket Number | No. 37301,37301 |
| Citation | 553 S.W.2d 559 |
| Parties | Tommy Lee DAVIS and Minnie Lee Davis, Plaintiffs-Appellants, v. Leander C. MOORE and Lloyd Simpson, Defendants-Respondents. . Louis District |
| Court | Missouri Court of Appeals |
Goldstein & Price, Elmer Price, St. Louis, Tom Mendelson, University City, for plaintiffs-appellants.
Wayman F. Smith, III, St. Louis, for defendants-respondents.
Appeal by Tommy Lee Davis and his wife Minnie from an adverse judgment, entered upon a 9 to 3 jury verdict for defendants, in plaintiffs' action for wrongful death of their 20-year-old son Tyrone. Defendants Moore and Simpson, police officers of the City of Kinloch, shot and killed Tyrone in an attempt to arrest him. Admitting that they fired upon Tyrone, defendants sought exoneration from civil liability for his death under § 544.190, RSMo 1969 1 on the ground that they were using the necessary means to effect the arrest of a fleeing felon.
According to defendants, whose testimony the jury chose to accept, these are the essential facts: Some time previously local authorities had issued five felony warrants for the arrest of Tyrone on charges of burglary, in the City of St. Louis; resisting arrest, St. Louis County; burglary and stealing, in Kinloch; resisting arrest, in Kinloch, and armed robbery with a dangerous and deadly weapon. Defendants, operating a police car, encountered Tyrone and his 16-year-old friend Walter West, at 2:30 or 3 o'clock in the morning at the intersection of Martin Luther King Street and Wesley Street in Kinloch. Officer Moore exited the police car on the passenger side and told Tyrone he was under arrest. Tyrone moved toward the driver's side of the vehicle. Officer Simpson, the driver, stepped out of the police car. Tyrone had his right hand in his right front pocket. Moore told him to take his hand out of his pocket. Tyrone turned his back toward Moore and "made a motion as if to do something with whatever he had in his right front pocket." Moore advised Tyrone "not to do it," whereupon Tyrone began to run north along Martin Luther King Street. When Tyrone was 10 feet distant Moore fired a warning shot in the air, after yelling "Halt!" When Tyrone was 20-30 feet distant Moore took a low aim at Tyrone and fired twice. Moore denied that he was trying to kill Tyrone. He testified he was trying to prevent the subject from escaping. Simpson, at the same time and from the same position as Moore, fired once at Tyrone. Shot in hip, lung and heart, Tyrone turned into a vacant lot, where he died.
During the month preceding this occurrence Moore was called to an intersection in Kinloch where two other officers had arrested Tyrone. When he arrived Moore informed Tyrone that he was under arrest for numerous felony warrants active at that time. Tyrone responded, "You will have to kill me before you arrest me," and then began to run. Moore ran after him but was unable to catch him. Moore did not fire any shots on that occasion. The next day Moore went to Tyrone's residence, where he spoke to Tyrone's father, telling him that Tyrone was wanted by Kinloch Police Department and numerous other departments for various felony offenses; that Tyrone had run away from Moore on the preceding day, and that if Tyrone continued running from police officers "he may be shot."
Defendants' main verdict-directing Instruction No. 5 follows:
Instructions Nos. 9, 10 and 11 told the jury that the officers "had a duty to arrest persons whom they had reasonable cause to believe guilty of a felony and to use such force as they may reasonably believe to be necessary to accomplish the arrest"; that "the presumption is that peace officers are in the lawful discharge of their duty in attempting to make arrests," and that "a police officer may use all necessary means to effect an arrest after giving notice of the intention to make the arrest."
The terms "necessary means" and "all necessary means" to effect an arrest, and "such force as they may reasonably believe to be necessary," were not further defined in any other instruction.
Appellants claim Instruction No. 5 is erroneous because it did not define the use of the term "necessary means to effect the arrest"; that this language is extraordinarily general and indefinite; that its legal import should be explained or defined; that "the failure to do so impinges upon the law-giving function of the court and leaves to the jury a roving commission to reach decisions in darkness of established precepts controlling claims or defenses placed before them." Specifically, appellants assert that in this context the word "necessary," a variable term, should be applied in a strict and literal sense; that "necessary means" should be understood as the "sole means" or the "indispensable means" of effecting an arrest. Appellants point out that in Walsh v. Oehlert, 508 S.W.2d 222, 224 (Mo.App.1974), this court declared the common law and Missouri law to authorize a police officer to use deadly force to apprehend an accused fleeing felon "as a last resort." They cite The American Law Institute Restatement of Torts (2d) § 131(c) (1965) statement that existing law prohibits the use of deadly force unless "the actor reasonably believes that the arrest cannot otherwise be effected," and that the use of force involving serious danger is privileged "only as a last resort when it reasonably appears to the actor that there is no other alternative except abandoning his attempts to make the arrest." They contend that the use of force likely to take human life is recognized as necessary or excusable only when it is the sole, or indispensable means of arrest the last resort a last ditch measure without which the arrest could never be made, at any time or place, within the realm of reasonable probability and belief; that the jury should have been given a chance to consider the opportunity for a deferred arrest of Tyrone, who had lived in the small community of Kinloch all his life, and whose identity and place of residence were known to the police, by a proper instruction encompassing the element of last resort.
In instructing juries the general rule is that where the law is embodied in a statute it is sufficient to follow the language of the statute. There are situations, however, in which because of the generality of the terms of a statute, the peculiarity of its wording, or the use of technical terms it is liable to be misunderstood by a jury and cannot be administered without an added explanation. In such case it is not sufficient in declaring the law merely to follow the precise terms of the statute, without adding the explanation of those terms which an authoritative court has affixed to its terms. State ex rel. Little v. Donnelly, 9 Mo.App. 519 (1881), cited by appellants.
This is not such a situation. The words "necessary means" or "all necessary means" to effect an arrest have a common and well-understood meaning when considered in connection with a given factual situation. Because of the infinite number of different factual circumstances which may arise it is hardly possible to define these terms more precisely and yet give them universal application. They are nontechnical terms; they are not words of art. In their ready understandability in a given factual milieu they are comparable with the following terms, which courts have ruled useable in instructions without further definition: "brought on the difficulty," State v. Bailey, 190 Mo. 257, 88 S.W. 733 (1905); "improper conduct," State v. Barrington, 198 Mo. 23, 95 S.W. 235 (1906); "material facts," State v. Davidson, 172 Mo.App. 356, 157 S.W. 890 (1913); "heat of passion," State v. Gore, 292 Mo. 173, 237 S.W. 993 (1922); "reasonable provocation," State v. Glenn, 262 S.W. 1030 (Mo.1924); "apprehended danger," State v. Howard, 352 Mo. 410, 177 S.W.2d 616 (1944); "reasonable cause," idem; "unlawful provocation," State v. Graves, 352 Mo. 1102, 182 S.W.2d 46 (1944); "adequate warning," Kinder v. Pursley, 488 S.W.2d 937 (Mo.App.1972). As noted in Kinder v. Pursley, supra, the terms "excessive speed," "careful lookout," "following too closely," "adequate and timely warning," "position of immediate danger," etc., are not required to be defined in MAI instructions. If we accede to appellant's request and require that the "last resort" concept be added to the language of the statute the next step will be a request to define the term "last resort."
Both from the standpoint of the policeman on line duty who "in the first instance is the judge of the manner and means to be taken in making an arrest," Manson v. Wabash R. Co., 338 S.W.2d 54, 61(17) (Mo. banc 1960), and from that of the ultimate trier of the facts applying common sense in judging the propriety of the means taken, it is better that the common, everyday wording of the statute ("all necessary means") be left without further definition, flexible and adaptable to the factual situation presented.
Appellants' second point is that Instruction No. 10 () is "an erroneous application of a rule of procedural practicality used here to relieve defendants of their burden of proof on their...
To continue reading
Request your trial
-
Carlisle v. Kroger Co., 58198
...the witness unless it is shown that there has been conviction. Harris v. Williams, 363 S.W.2d 51, 54 (Mo.App.1962); Davis v. Moore, 553 S.W.2d 559, 564 (Mo.App.1979). It is also true that immaterial and incompetent evidence may not be brought before the jury under the guise that it impeache......
-
City of Sedalia v. Russell, WD31561
...54 (Mo.banc 1960); State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016 (1946); State v. Nunes, 546 S.W.2d 759 (Mo.App.1977); Davis v. Moore, 553 S.W.2d 559 (Mo.App.1977). Clearly, defendant had engaged in a course of conduct which obstructed and was calculated to defeat Purdue's investigation. He ......
-
Neal v. Helbling
...use of unreasonable force by an arresting officer is on the plaintiff. There is unsupported language to the contrary in Davis v. Moore, 553 S.W.2d 559 (Mo.App.1977). Insofar as Davis conflicts with this opinion it is overruled.2 The burden of proof instruction submitted to the jury stated: ......
-
Henderson v. St. Louis Housing Authority, 41213.
...There are, however, exceptions to the rule, especially where the terms of the statute are general and indefinite. Davis v. Moore, 553 S.W.2d 559, 562 (Mo.App.1977). Plaintiff alleged that he was discharged because he filed a workmen's compensation claim. He made a submissible case on that a......
-
Section 20.83 Objections
...in Evidence: Questions that assume facts that have not been placed in evidence before the pending question are improper. Davis v. Moore, 553 S.W.2d 559 (Mo. App. E.D. 1977); State v. Siems, 535 S.W.2d 261 (Mo. App. E.D. 1976). It is well-settled law that cross-examinations should not be use......
-
Section 12.7 Definitions
...S.W.2d 153 (Mo. App. E.D. 1973) (“value”); Huff v. Union Elec. Co., 598 S.W.2d 503 (Mo. App. E.D. 1980) (“improvements”); Davis v. Moore, 553 S.W.2d 559 (Mo. App. E.D. 1977) (“necessary means” to effect an arrest); Anderson v. Cahill, 528 S.W.2d 742 (Mo. banc 1975) (“young children”); Wulfi......