State v. Albright

• Decision Date: 31 May 1898
• Citation: 144 Mo. 638,46 S.W. 620
• Parties: STATE v. ALBRIGHT.
• Court: Missouri Supreme Court

46 S.W. 620

144 Mo. 638

STATE v. ALBRIGHT.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

CRIMINAL LAW — VENUE — INSTRUCTIONS — APPEAL — JURY — SUMMONING — CHALLENGES — STATUTES — CONSTRUCTION — MURDER — MANSLAUGHTER — THREATS.

1. In the absence of abuse of discretion, the ruling of the trial court on an application for change of venue will not be disturbed.

2. A venire facias is properly directed to the sheriff, and need not be in the hands of the deputies assisting in summoning the venire.

3. The statute regulating the summoning of jurors is merely directory.

4. One challenging a juror for cause should point out the exact ground of his incompetency.

5. Where no objection was made at the time to failure to instruct fully on certain questions, it will not be reviewed on appeal.

6. Deceased, a prosecuting attorney, without a warrant attempted to arrest one indicted for murder, having warned him that he would take him dead or alive. Accused, on the approach of deceased, borrowed a gun, saying that, if he did not have trouble, he would return it that night. As deceased approached the house, accused said, "There is those men going to arrest me," and, going near to the closed door, fired at deceased through it, killing him. Held to be murder in the first degree.

7. Threats by deceased against accused, not followed by overt acts, are no defense to a charge of murder.

8. Deceased, a prosecuting attorney, having notified one indicted for murder that he would come and get him, attempted to arrest him. Held, that accused had no right to resist arrest, and, having shot deceased, was not entitled to an instruction on manslaughter.

Appeal from circuit court, Mississippi county; Henry C. Riley, Judge.

James Albright was convicted of murder in the first degree, and he appeals. Affirmed.

H. C. O'Bryan, for appellant. Edward C. Crow, Atty. Gen., J. J. Russell, and W. G. Lee, for the State.

SHERWOOD, J.

Murder in the first degree, the charge; and verdict returned, also, for that degree. George S. Elliott was the victim of the deed; and a shotgun, the weapon. He had been prosecuting attorney of the county, and drew the indictment against defendant and the brother of the latter, Joseph, for the murder of one Isaac Large, which indictment was found at the December term, 1896; and was such prosecuting officer at the time he met his death, on the 12th day of January, 1897, in the attempt to arrest defendant under the charge contained in the indictment aforesaid. Looking through this record, various objections are made and exceptions are saved, which, in the absence of any brief or assignment of errors in this court, must serve the purpose of such assignment.

1. And first as to denying defendant's application for a change of venue: The evidence in favor of and against the application was heard by the trial court; and, having been determined adversely to granting the change, such ruling will not be disturbed by this court, and should not be, unless there had been circumstances of such a nature as indicated an abuse of the discretion lodged in the trial court, — something which is not to be found in the present record. State v. Dyer, 139 Mo. 199, 40 S. W. 768.

2. The written challenge to the array was properly overruled, because it was sufficient that the venire facias for 100 men was directed to the sheriff of the county, and it did not have to be in the hands of the deputies, both of whom assisted the sheriff in summoning the number of jurors specified in the venire; and this was the ground of the challenge. And besides the statute regulating the summoning of jurors has always been construed merely as directory. Samuels v. State, 3 Mo. 68; State v. Pitts, 58 Mo. 556; State v. Jones, 61 Mo. 232; State v. Knight, Id. 373; State v. Williams, 136 Mo., loc. cit. 307, 38 S. W. 75, and cases cited.

3. As to the juror Bennett, one of the panel of 40 from which defendant was to make his challenges: He was a competent juror, under the rulings of this court in State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Dyer, 139 Mo. 199, 40 S. W. 768. And, if he was not a competent juror, the exact ground of his incompetency should have been pointed out. The mere challenge "for cause" amounted to nothing. Id.

4. The instruction given by the court embraced murder in the first and second degrees; and also self-defense, and the effect to be given to threats alleged to have been made by Elliott against defendant, and, taken as a whole, follows approved precedents, and contains no seriously prejudicial error. It is asserted in the motion for a new trial that the court did not fully instruct on all questions of law, etc.; but this criticism cannot prevail, because defendant did not at the proper time call the attention of the court to such omission, and except on the refusal of the court to supply such omission, if any existed. State v. Williams, 136 Mo. 293, 38 S. W. 75, and numerous other cases inclusive of State v. Cantlin, 118 Mo. 100, 23 S. W. 1091.

5. The main and most important question involved in this record is now to be considered. It is as to the power of a citizen to arrest one charged with a felony. Intimately associated with this question, however, is the testimony of witnesses on behalf of defendant, which it is said shows threats made by Elliott against defendant, which testimony will now be set forth: Shankle testified: "Well, I think, the best I remember, it was about the 8th — the 7th or 8th — of January that I met Mr. Elliott. I also met Mr. Albright the same day — James Albright — the same day I met Mr. Elliott. I had a conversation with Mr. Albright, and Mr. Albright agreed with me to come to town and give up, — if there was a reward for him, — and offered to divide the reward with me, providing there was a substantial reward, if it was good, and asked if I would see the sheriff of this county, and see if it was good. I told him I would. I come to town, and, not finding the sheriff, — not knowing him, I didn't find him. At the time I saw Mr. Elliott, I told him I wanted to see the sheriff, and also him. He says he would go to the sheriff's office, — either to his office or to the sheriff's office. I would not be positive which. We went to the office, any way, in this building here, — I don't know whether it is the sheriff's office or Mr. Elliott's office, — and the sheriff was not in, and Mr. Elliott said the sheriff was not there. He asked me my business. I told him my business. I told him what Mr. Albright told me; and Mr. Elliott just simply remarked to me that he would not give anything for the arrest of Albright, nor would not be the cause of anything being spent; that he knew where he was at; that when he got able, or time (I would not be positive which), that he would go out there and get him. He says: `I mean to get him. I mean to get him, dead or alive.' They are the words that he spoke to me, — and asked if I would be kind enough to him to tell Jim Albright to come in and give up like a man, and, if he didn't, that he would come out there and get him, either dead or alive. They are the words that he told me, and I told Albright that evening of the same day what Elliott told me. That is all I know." Madrey, in his deposition, taken in Tennessee, states that he had a conversation with George S. Elliott in Charleston, Mo., about the 24th of December, 1896, in regard to defendant; that in that conversation the following occurred: "I asked him to raise a reward, and he said, `We have nothing to do with that;' that: `I am going out after him in a few days, and all I want is to get a shot at him. I will bring him in. I don't care, just so that he can be identified, how he is.' That was all the conversation that I remember of." And that witness informed defendant of this conversation in about a week after its occurrence. Defendant, in reply to direct and answer-indicating questions, testified that Shankle and Madrey had both told him that Elliott had threatened his life. If, however, the testimony of Shankle, a witness for defendant, be true, — and it is not denied by defendant, — there was no threat couched in the language used by Elliott to him, provided always that Elliott had the legal right to arrest defendant, because the power to make the arrest necessarily implies the power to take the person to be arrested, "dead or alive." We are thus brought to consider the power of a private citizen, unarmed with a warrant, to make an arrest where a felony is charged. We gather from the authorities that a private person may arrest another in treason or felony: "If in fact there has been an offense of either of these degrees committed, and the private person, on reasonable grounds, suspects a particular individual, he, acting in good faith, may arrest him without incurring any liability, civil or criminal, should the suspicion prove unfounded." 1 Bish. New Cr. Proc. § 168, and cases cited. Some of the cases seemingly intimate that an arrest in such circumstances is not justifiable unless the person arrested be proven guilty, but this is not the prevalent doctrine. Id. To the same effect see 2 Am. & Eng. Enc. Law (2d Ed.) p. 885, and cases cited. Hale says: "If A., a mere private man, knows B. to have committed a felony, he may thereupon arrest him of felony, and he is lawfully in the custody of A. till he be discharged of him by delivering him to the constable or common gaol; and therefore if he voluntarily suffers him to escape out of his custody, though he were no officer, nor B. indicted, it is felony in A. So it is, if a felony be in fact committed, and A. hath a probable cause to suspect B., and accordingly suspects and arrests him, B. is lawfully in the custody of A. for suspicion of felony; and, if he voluntarily lets him escape, it is felony in A. in eventu, viz. if B. proves really guilty of the felony." 1 Hale, P. C. 595. "If A. commit a felony, B., who is a private person, may arrest him for...