State v. Banks

• Decision Date: 26 May 1914
• Docket Number: No. 18051.,18051.
• Parties: STATE v. BANKS.
• Court: Missouri Supreme Court

167 S.W. 505

258 Mo. 479

STATE v. BANKS.

No. 18051.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. HOMICIDE (§ 300) — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

In a homicide case, where the theory of defendant was that he shot deceased in self-defense not knowing that deceased was an officer undertaking to arrest him, the court properly refused defendant's request that, even though he knew deceased was an officer, yet, if deceased used unnecessary force to effect the arrest, and defendant believed that, by reason of such force, deceased was about to kill him, etc., then defendant could kill deceased in self-defense.

2. HOMICIDE (§ 300) — INSTRUCTIONS — SELF-DEFENSE.

In a homicide case, an instruction, following the regular charge upon self-defense, that, "if the defendant shot (deceased) unnecessarily, * * * there can be no self-defense in the case" was erroneous, because it deprived defendant of the right to act upon appearances.

3. CRIMINAL LAW (§ 369) — EVIDENCE — OTHER OFFENSES.

Evidence of separate and isolated crimes is not admissible to prove the commission of the crime charged, but, when evidence of other crimes is admissible for any purpose, it will not be excluded because it may prove the commission of another crime.

4. WITNESSES (§ 337) — IMPEACHMENT — ACCUSATION OR CONVICTION OF CRIME.

Under the direct provisions of Rev. St. 1909, § 6383, when the defendant in a criminal case becomes a witness, it is proper to prove his conviction of other crimes, but not that he has committed other crimes of which he has never been convicted.

5. CRIMINAL LAW (§ 369) — EVIDENCE — ADMISSIBILITY — OTHER OFFENSES.

In a prosecution of defendant for killing a police officer in attempting to arrest him, evidence that accused had committed other crimes, including robbery, etc., was not admissible as showing cause why the deceased officer attempted to arrest defendant without a warrant; there being no evidence that the officer knew of the commission of the other offenses.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Mannie Banks, alias George Williams, alias Ted Banks, was convicted of murder in the first degree, and he appeals. Reversed and remanded.

At the September term, 1912, of the criminal court of Jackson county defendant was tried and convicted of murder in the first degree for the killing of one Robert Marshall, and his punishment assessed at death. The homicide occurred near the corner of Nineteenth and Grove streets, Kansas City, Mo., at about 11:30 p. m., August 10, 1912. Deceased was a colored policeman. Defendant is a negro, and was about 20 years of age at the time. Just prior to the killing, defendant was standing on the sidewalk on the south side of Nineteenth street, a few feet west of its intersection with Grove street, talking to one Nadine Monroe, a negro woman, who was standing in an adjoining yard. At this time two negro policemen, the deceased and Thomas W. Howard, dressed in plain clothes, were patrolling the street together, and came up to where defendant was standing. Officer Howard testified for the state that he was not acquainted with the defendant at the time of the occurrence, but knew him by sight, and that as he and deceased came up to defendant witness asked the defendant his name and where he lived. Defendant replied that his name was "Ted Smith," and that he lived down on Sixth street. The witness saw a big bulge on defendant's right side, under his waistband, and, on account of this, he told defendant that "they" were police officers, and that they wanted to search him, and told defendant to throw up his hands. Witness also testified that, at the time he told defendant they were officers, "I done my coat like that (indicating)." Witness further testified that thereupon he started to search defendant, feeling around the defendant with his hand, and when his hand touched the bulge under the waistband "it rattled like new leather." and that it felt like a large gun, and that he knew it was a gun incased in a leather scabbard. Just as witness' hand touched the bulge under defendant's waistband, defendant struck witness with his fist, knocking him down, and then ran down the street toward Grove street and turned south on the west side of Grove street. Officer Marshall, the deceased, pursued the defendant, and was four or five feet behind him as they went around the corner. A second or two after defendant and deceased turned the corner on Grove street witness heard one shot. Witness was somewhat "dazed" by the blow, but was able to get up, and then ran in the direction that defendant and Officer Marshall had gone, and a short distance down Grove street, out in front of a stairway at number 1910 Grove street, he found Officer Marshall dead. All the shots had been fired out of his gun, but the witness did not know whether deceased's gun was fully loaded at the time the trouble began. Witness said that they did not have a warrant for defendant's arrest, but that they had orders to search persons that looked suspicious. Later the witness was recalled and testified as follows:

"Well, when Officer Marshall and I came down the street, I was told there was some shooting over in the jungles; that a white man got held up over there in the sand yard. We went over there, and we seen this boy there, and I saw that bulging there. I had kind of a suspicion that he had a gun, and I went to searching him."

After the witness went down to where the shooting occurred, he went up the stairway and through the building and down the back stairway into the back yard, where he made an unsuccessful search for the defendant.

Nadine Monroe testified: That she was 18 years old, and that she and the defendant had been staying at the Henderson Hotel at Eighteenth and Tracy streets in Kansas City, Mo., for about a week prior to the shooting. That on the night of August 10, 1912, she was talking to the defendant near the corner of Nineteenth and Grove streets, when the two officers came up and asked defendant his name. That defendant said his name was "Ted Banks." That Officer Howard disputed the name given, and pulled defendant out on the sidewalk and began to search him, and that defendant hit the officer and ran, with Officer Marshall in pursuit. That as defendant started to run she heard Officer Marshall call upon him to "halt." That as Officer Marshall was going around the corner she saw him reach for his gun, and just as they turned the corner she heard one shot fired, but did not know who fired it. That she heard six shots fired, but that she did not go around the corner, and did not know who did the shooting. That she immediately went to the Henderson Hotel to defendant's room, and in a short time defendant came to his room. A man by the name of Ward was there, and defendant sent Ward to get his clothes and also some beer. Ward returned with the beer and some clothing. A girl named Virginia Childs returned with Ward. Defendant changed his clothing and "put on Ward's lavender shirt." That defendant asked Virginia Childs to "come on down and see if the way was clear of the law." Witness, together with defendant and Ward and Virginia Childs left the building and went to Fifteenth and Tracy streets and at that place Virginia Childs said to defendant, "I see two laws," and defendant replied, "I don't care; did you see what two laws got on Nineteenth and Grove?" Virginia Childs asked defendant how he felt, and defendant replied, "I feel like any other man; that wasn't the first man I ever put off;" and that defendant said, "I don't care; all I hated it was a colored man, and not a white man." He further stated that he "hated" to kill a colored man. The party walked to Thirteenth and Main streets, where the Childs woman left them, and defendant and the witness went to the Union Depot, and defendant inquired as to what time he could get a train for St. Joe. Upon learning that the next train would not depart until 6:30 in the morning, witness and defendant obtained lodging at a rooming house on West Twelfth street, where they stayed until Monday morning, when defendant went away. The witness further testified that at the time the officers attempted to search defendant he had a "gun on him," and that she had seen him "put it on."

Virginia Childs testified that: Just before the shooting, she was standing on the north-east corner of Nineteenth and Grove streets and saw the two officers approach the defendant across the street from her; she could not hear what was said, but she saw the officers talking to defendant, and saw Officer Howard fall and the defendant run, pursued by Officer Marshall. That defendant ran around the corner and turned into the stairway at 1910 Grove street. Witness did not know how many shots were fired, but stated that most of them were fired by Officer Marshall and that she thought Officer Marshall fired the first shot. She did not know whether deceased shot to hit defendant. That she ran across the street toward the stairway up which defendant had gone, and that she heard deceased say, "Come out," once, and that she also heard him say, "Bring me a light, Maud." That a short time after defendant went into the stairway she saw a flash from defendant's gun, and saw deceased fall. The witness afterwards saw two bullet holes in the door near the stairway. After the shooting, the witness and a man by the name of Ward went down to the hotel where defendant was staying, and that defendant said he was going to St. Joe. That at defendant's request she went down "to see if the coast was clear of the law," and that they then walked to Thirteenth and Main streets. That on the way down the street defendant said he "hated to kill a colored man," and that he "could have gone over the stairway without doing it," but that "the man had called him a black s_____ of a b_____ and shot at him." That after the shooting defendant had a "big gun" with him. Witness also...