Roberts v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 138
• Parties: ROBERTS, ALIAS WARD, v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 138

ROBERTS, ALIAS WARD,

v.STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM THE ST. LOUIS CRIMINAL COURT.

Appellant was indicted at the ______ term of the Criminal Court, along with one Richard Jones, for the murder of Ephraim Hibler, a policeman of the city of St. Louis, and on the trial of said charge at the September term of said court, was found guilty of murder in the first degree.

On the trial of said cause the facts appeared as follows: Appellant was arrested in the city of St. Louis, sometime during the month of May last, on a charge of vagrancy, pigeon dropping, or stealing He was confined in the calaboose some seven or eight days, when he was discharged by virtue of an agreement made between him, the city marshal, the recorder, and city attorney, whereby he promised to leave the city after the stipulated time The marshal gave the order for the second arrest, because, as he testified on the trial, he, Roberts, was a dangerous and suspicious character, because he did not leave the city according to agreement, A few days after this, officers Ephraim Hibler and Hahn undertook to arrest Roberts at the Marengo coffee-house. Roberts was in the bar-room. When the officers entered, he rushed through the inner door of the back room and endavored to make his escape through the door out. The door was locked, and he was detained until the officers came up. They both told Roberts that they had orders to arrest him for vagrancy, and that he must go with them. Roberts resisted, and said he would not go. During this time, Jones was striving to open the door, with a bundle of keys. He succeeded, and endeavored to rescue Roberts from the officers, but did not succeed. Jones then went out, and the officers pulled Roberts out upon the middle of the floor--a scuffle ensued, during which Roberts snapped a pistol at officer Hahn, who knocked him down. Jones, having returned, asked Roberts where his other one was; Roberts answered that he did not have it. Jones then went up to him and fooed with his coat--stepped back and told him to look in his pocket. Roberts was then pulled by the officers into the bar-room, when he got between the counter and the wall, and swore he would not go. Said he would rather die than be sent to the work-house. Then said, “By God, I'll shoot!” He then bent down twisted a pistol around in his coat pocket, and discharged it. The load took effect on Ephraim Hibler, who died of the wound. At the time of the shooting, Hibler had hold of one side of Roberts' coat collar, and Hahn hold of the other, and were persuading him to go along. Roberts then broke loose and fled, but was overtaken, knocked down and carried to the calaboose. About thirty minutes elapsed from the time the officers entered the house until the time of the shooting, and the events transpired about twelve o'clock at night.

The State offered in evidence an ordinance passed by the city council of St. Louis, being ordinance No. 2364, and entitled “An ordinance concerning Vagrants.” Also, ordinance No. 2410, entitled “An ordinance establishing and regulating the Police Department,” and read therefrom section 12, which is as follows: “That it shall be the duty of privates to be punctual at roll-call at the second district station-house; to obey punctually and to the best of their ability, the orders of the chief of the police, the captain of the city guard, and the lieutenant to whose command they may be assigned; to remain on their respective beats, and not to leave the same except in the discharge of their respective duties; they shall, to the best of their abilities, preserve order, peace and quiet throughout the city; they shall arrest all persons found in the act of violating any law or ordinance, they shall arrest all persons found under suspicious circumstances, and who cannot give a good account of themselves, and convey all persons so arrested to the station-house of the district in which any arrest may be made, and report to the lieutenant of such district the cause of the arrest, the names of the witnesses, and all facts connected therewith.

The members of the guard shall have authority to enter any house, inclosure or other place where breach of the peace, or crime, or breach of ordinance has been, or is being, committed, and to arrest the offender or offenders; but shall not enter any dramshop, bawdy-house, or other place of degradation, except in discharge of their duty.”

During the course of the trial the State offered the evidence to show the defendant guilty of acts constituting vagrancy, which was objected to and objection sustained; to which State excepted.

The defendant then offered the following instructions, which were refused by the court, to which refusal the defendant excepted: 1. That unless the facts prove willfulness, premeditation and deliberation, the killing cannot be murder in the first degree. 2. That a police officer has no legal right to arrest a citizen without a legal warrant, unless for an offense committed in his presence; and the verbal order of the city marshal is not such a warrant, and a citizen has the right to resist the execution of an order so granted, and if by such resistance the police officer is killed, in the heat of passion without the design to effect death, by a dangerous weapon, the killing is manslaughter in the third degree. 3. That if the killing in the present case was by the accidental discharge of the pistol by the prisoner while in the heat of passion, the killing is not murder. 4. That a police officer, acting beyond the scope of his authority in making an arrest, is a trespasser, and a citizen is authorized to resist an unlawful arrest, whether the attempt be made by a police officer or a private citizen. 5. That a police officer making an arrest without a warrant, in a case where a warrant is necessary by law, is acting beyond the scope of his authority, and the citizen is authorized to resist such attempt to arrest. 6. That a police officer is not authorized to make, or justified in an attempt to make, an unlawful arrest, by reason of the command of a superior officer. 7. Any agreement made by the prisoner to leave the city within a given time, is not binding upon him, and the non-compliance therewith does not furnish a legal cause of arrest. 8. An officer is empowered to arrest--1st. In case of violation of law committed under his personal observation. 2nd. Where he has good reason to believe that a felony has been committed. And, 3rd. By virtue of a warrant issued by an authorized officer; and all arrests made under other circumstances are illegal, and violence may be used if necessary to resist the enforcement of them.

The court instructed the jury as follows: 1. If the jury believe from the evidence in the cause that the defendant did kill the deceased, Ephraim Hibler, as charged, and that he did so kill willfully, deliberately and premeditatedly, and in malice, you will find him guilty of murder in the first degree. 2. It is not necessary to prove the deliberation and premeditation for any particular length of time before the homicide took place, and if the jury believe from the evidence that John Roberts took the life of the deceased, and that before the killing the said Roberts did maliciously design to commit the homicide upon the deceased, or any other person who attempted to arrest him, and also that at the time he killed the deceased he intended to do the deed, and that such killing was not done in the heat of passion, nor is not excusable or justifiable homicide, you will find the defendant guilty of murder in the first degree. 3. In passing upon the malicious intent, it is lawful for the jury to consider the weapons used at the time of the homicide, and the manner of using them. 4. If the jury believe from the evidence that witness Jones, or any other witness, has willfully and knowingly testified falsely to any material fact in the cause, you are at liberty to reject the whole, or any part, of the testimony of such witness, inconsistent with the other truthful evidence in the cause. 5. If you entertain a reasonable doubt of the guilt of the accused, you ought to acquit. To the giving of which instructions by the court on its own motion, the defendant excepted. The jury then found the defendant guilty of murder in the first degree. The defendant then filed his motion for a new trial, which was overruled by the court, and to the ruling of which defendant excepted. Defendant then moved a stay of proceedings, and asked an appeal to this court, which was granted.

THOMPSON & MAURO, for Appellants.

I. That where an officer attempts illegally to arrest a person, and such attempt is resisted, and the officer is killed in the attempt, the killing is extenuated from murder to manslaughter. 1 Chit. Cr. L. 23; 1 Russell on Crimes, 592; Whart. Am. Cr. L. 277, 236, 266; Rev. Stat. 1845, p. 347. An illegal arrest is such an unlawful act as is contemplated in section 12, article 2nd, of Crimes and Punishments, Rev. Stat. 1845, p. 347.

II. The second instruction given by the court was calculated to mislead the jury. The words used by the court, to-wit: “or any other person who attempted to arrest him,” were calculated to create in the minds of the jury that the nature of the crime would not have been affected, even though the arrest was illegal. Whereas, under the circumstances of this case, the court should have laid down the law in relation to the power to arrest, and instructed the jury, that if the facts in the case proved an “illegal” attempt to arrest, they should convict of manslaughter, and not of murder.

III. That persons cannot be arrested in this country but by the authority of the “law of the land.” Art. 5th, Amended Const. of U. S.; § 8, art. 13, Const. of Mo.

IV. That the law of the land in this country is: 1st. The Constitution of the United States, acts of Congress, and treaties made in pursuance thereof. 2nd. The Constitution...