State v. Coleman

Citation84 S.W. 978,186 Mo. 151
PartiesSTATE v. COLEMAN.
Decision Date02 February 1905
CourtUnited States State Supreme Court of Missouri

4. In homicide, it was not disputed that defendant killed deceased, but the only defense was justification. The prosecuting attorney read the verdict of the coroner's jury, which found that defendant had killed deceased, and further found that the killing was unjustifiable, and asked a witness whether he, as a member of that jury, returned the verdict. Objection to the answer was sustained by the court, but no objection was made to the question, and no exception was taken to the action of the prosecuting attorney in propounding the same. Held. that the prosecuting attorney was not guilty of such impropriety as to justify the Supreme Court in interfering with the verdict.

5. While it is presumed that an error made against a defendant when on trial for crime is prejudicial, such presumption may be overcome by facts and circumstances in evidence.

6. In homicide, a charge that certain records, ordinances, and verbal testimony were admitted in evidence as tending to prove defendant's good faith in attempting to arrest deceased, but that the acts of deceased did not constitute an offense under such ordinances and records, and did not justify or excuse defendant for shooting deceased, is misleading, in so coupling the absence of excuse for shooting deceased with the preceding part of the instruction as to neutralize the question of good faith on the part of defendant in his efforts to make the arrest.

7. Where the question of reasonable doubt is covered in the general instructions, it need not be repeated in other instructions.

8. Where defendant, a city marshal, had good reason to believe that he had authority to arrest deceased for a violation of ordinances of the city, though he in fact had no such authority, because the act of deceased did not constitute a violation of the ordinances, and the marshal was acting in good faith in making the arrest, his act in killing deceased was not criminal, if in so doing he used no more force than was reasonably necessary to accomplish the arrest; but if he did use more force than was necessary, and thereby killed deceased, he was guilty of manslaughter in the fourth degree, unless he shot and killed deceased in malice and with premeditation, because he did not remove his hand from his pocket when commanded so to do, in which case he was guilty of murder in the second degree, if not acting in self-defense.

9. Where no instruction was asked on manslaughter in the fourth degree, and the court's attention was not called to its failure to instruct upon the law of the case, its failure to so instruct was not error.

10. The question of the invalidity of an information for homicide may be raised for the first time in the Supreme Court.

11. While an information for murder cannot be amended in the Supreme Court, it may, under the express provisions of Rev. St. 1899, § 2481, be amended as to matter of form or substance at any time by leave of court before trial.

12. An information for murder should conclude, "and so the prosecuting attorney aforesaid upon his oath, does say that the said ____ him the said ____ in manner and form, deliberately, premeditatedly, feloniously and of his malice aforethought, did kill and murder," and an information omitting the words "upon his oath" is bad.

13. Depositing the affidavit on which an information is based with the clerk of the circuit court of the county is a sufficient filing of the same, within the meaning of Rev. St. 1899, § 2477, requiring affidavits in support of informations to be filed therewith.

14. The failure of the clerk to indorse upon an affidavit filed in support of an information the word "Filed," and the date of the filing, is, at most, an irregularity, which may be amended before or during trial, but cannot be raised for the first time on appeal.

Valliant and Gantt, JJ., dissent in part.

In Banc. Appeal from Circuit Court, Chariton County; Jno. P. Butler, Judge.

Jasper Coleman was convicted of murder in the second degree, and appeals. Reversed.

Ball & Sparrow and A. W. Johnson, for appellant. E. C. Crow, Atty. Gen., and C. D. Corum, for the State.

BURGESS, J.

At the September term, 1903, of the circuit court of Chariton county, the defendant was convicted of murder in the second degree, and his punishment fixed at 20 years' imprisonment in the penitentiary, under an information filed in the circuit court of said county by the prosecuting attorney of said county charging him with having shot to death with a pistol at said county on the 8th day of August, 1903, one Rufus Cox, against the peace and dignity of the state. Defendant appeals.

The facts, briefly stated, are that at the time of the homicide the defendant was marshal of the town of Dalton, in said county. Deceased lived in the county, and on the day he was killed had gone to Dalton, taking some fish with him for sale, and was vending them upon the sidewalks of the town, in violation of a resolution of the board of aldermen of the town, which the marshal understood had theretofore been adopted. When Cox arrived in town he established himself upon the sidewalk, and began selling his fish. The defendant, as marshal, advised Cox that an ordinance had been passed prohibiting the use of the pavement for such purposes, and requested him to move his fish to some other place. It seems that the deceased at first demurred, but finally reluctantly removed his fish, at the request of the defendant, to the inside of a store, and remained in the store until late in the afternoon, when he again placed his fish upon the sidewalk. The defendant again remonstrated with him against using the sidewalk for the purpose, and attempted to get him to remove his fish. This the deceased declined to do, whereupon the defendant attempted to arrest him and lead him away, in pursuance of which defendant laid his hands upon the deceased upon three different occasions, and on each occasion the deceased freed himself from the grasp of defendant. The testimony on behalf of the state tends to show that the deceased did little more than decline to accompany the defendant, and that because of his declination, and without other provocation, the defendant drew his pistol from his pocket and shot him to death. The evidence shows that the defendant fired four shots, from the effects of which the deceased immediately died. The evidence on behalf of the defendant tends to show that after he had tried to place the deceased in his custody the deceased put his hand in his pocket, and that thereupon the mortal shot was fired. The defendant states on direct examination that he shot deceased in order to protect himself from bodily harm, but his cross-examination shows that he shot the deceased because the deceased failed to remove his hand from his pocket when defendant requested him to do so. His own testimony does not suggest that he was in imminent danger of attack, or that he had any cause to believe that he was in imminent danger. His whole testimony goes to show that he murdered the deceased because the deceased would not remove his hand from his pocket.

There are a number of assignments of error which we do not think of sufficient importance to demand our attention, for in no event could the judgment be reversed because of the rulings of the court below upon them, so that we will direct our attention to such matters as seem to require more serious consideration.

The first of these is in relation to the testimony of one James Weikler, a witness for the state, who testified over the objections of defendant to threats made by defendant a year or 18 months before the trial that he was going to shoot Rufus Cox, having prepared himself with a shotgun for the purpose, and was lying in wait for him, but that the witness discovered defendant, and dissuaded from his purpose. The contention is that the threats were too remote to be competent, and especially so since there was no evidence of any threats or bad blood on the part of the defendant since that time. But it is well settled that, in trials for murder, threats made by the defendant towards the deceased are competent, and the nearness or remoteness of the time when made to the date of the homicide does not affect their competency as evidence. State v. Adams, 76 Mo. 357; State v. Grant, 79 Mo. 137, 49 Am. Rep. 218; State v. McNally, 87 Mo. 644; State v. Glahn, 97 Mo. 679, 11 S. W. 260.

Defendant complains of the action of the court in permitting the attorney for the state to read to the court in the presence of the jury the verdict of the coroner's jury. It was not read in evidence, but the attorney for the state asked witness Davenport whether he as a member of the coroner's jury, returned a certain verdict. The question was objected to, and the objection sustained. No objection was made to the action of the prosecuting attorney in propounding the question. Under such circumstances, it should not be assumed that the jury could have inferred that the witness returned such a verdict as the attorney for the state suggested, nor could the jury have inferred that the witness returned any verdict as a member of the coroner's jury. While...

To continue reading

Request your trial
71 cases
  • City of Dothan v. Holloway
    • United States
    • Supreme Court of Alabama
    • 25 Julio 1986
    .......         Charles A. Graddick, Atty. Gen., and Jack M. Curtis and Leura J. Garrett, Asst. Attys. Gen., amici curiae for State of Ala. .         Sam LeMaistre, Jr., President and Chairman of the Executive Committee, and Joseph M. Carlton, Jr., Executive Director of ...463, 202 S.W.2d 943 (1947). See also Harris v. State, 46 Del. 111, 82 A.2d 387 (1951). 5 . Page 1148 .         In State v. Coleman, 186 Mo. 151, 84 S.W. 978 (1905), the Missouri Supreme Court noted that the state constitution had been amended so as to allow prosecutions for ......
  • State v. Murphy, 34019.
    • United States
    • United States State Supreme Court of Missouri
    • 4 Enero 1936
    ......3986, R.S. 1929; 30 C.J., sec. 355, p. 146; self-defense, Sec. 3985, R.S. 1929; State v. Malone, 327 Mo. 1217, 1228, 39 S.W. (2d) 786, 790: lawful arrest, Sec. 3985, R.S. 1929; State v. Dierberger, 96 Mo. 666, 676, 10 S.W. 168, 171, 9 Am. St. Rep. 380; State v. Coleman, 186 Mo. 151, 161, 84 S.W. 978, 980-1, 69 L.R.A. 381: coercion of husband, 30 C.J., sec. 420, p. 791; State v. Ma Foo, 110 Mo. 7, 15, 19 S.W. 222, 224, 33 Am. St. Rep. 414.] . 90 S.W.2d 109 .         There are two Missouri cases which sustain this view with respect to the defense of ......
  • State v. January, 38973.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Septiembre 1944
    ......Osborne, concerning notice to produce copy of alleged contract. Sec. 4125, R.S. 1939. (14) No error in admitting in evidence county warrants. Sec. 4125, R.S. 1939; State v. Wilson, 143 S.W. 534, 161 Mo. App. 301; State v. Coleman, 84 S.W. 978, 186 Mo. 151, 69 L.R.A. 381; State v. Allen, 246 S.W. 946; Crim. Law, Mo. Digest, 1141 (2). (15) No error in excluding from evidence a bank draft and check. Sec. 4125, R.S. 1939; See Points (11), (13), and (14). (16) Change of venue not a question to be raised in motion for new trial, ......
  • Hogan v. Public Service Co.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Mayo 1929
    ......Ry. Co., 285 Mo. 618; Sexton v. Railroad Co., 245 Mo. 275; Phippin v. Railway Co., 196 Mo. 321; Rollison v. Railroad Co., 252 Mo. 543; State ex rel. Railroad v. Bland, 313 Mo. 254; Sullivan v. Railroad Co., 308 Mo. 75. (c) Because there is no evidence upon which to base a finding that ...783, par. 49, and 791, par. 51; 38 Cyc, 1621; State v. Coleman, 186 Mo. 151, 160, 84 S.W. 978, 69 L.R.A. 381; Schaefer v. St. L. & Sub. Ry. Co., 128 Mo. 64, 74, 30 S.W. 331); but when the instruction is refused ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT