State v. Coleman

• Decision Date: 02 February 1905
• Citation: 84 S.W. 978,186 Mo. 151
• Parties: THE STATE v. COLEMAN, Appellant
• Court: Missouri Supreme Court

84 S.W. 978

186 Mo. 151

THE STATE v. COLEMAN, Appellant

Supreme Court of Missouri

February 2, 1905

Appeal from Chariton Circuit Court. -- Hon. John P. Butler, Judge.

Reversed and remanded.

Ball & Sparrow for appellant; A. W. Johnson of counsel.

(1) The reading of the verdict of the coroner's jury to witness Davenport was error. State v. Garth, 164 Mo. 553. The fact that the court permitted the verdict of the coroner's jury to be read in the form of a question, and then sustained an objection by defendant, does not cure the error. It is like admitting incompetent evidence in a criminal case and then attempting to cure the error by instructions. State v. Thomas, 99 Mo. 235; State v. Kuehner, 93 Mo. 193; State v. Fredericks & Reed, 85 Mo. 145; State v. Mix, 15 Mo. 153. (2) The defendant was an officer of the law. The deceased knew him to be an officer of the law. It was the duty of defendant, under the facts in this case, to arrest the deceased. Therefore, as such officer, he must of necessity be the aggressor. As such officer it was his duty to use sufficient force to accomplish the arrest, and he must of necessity be the judge of the force necessary to make the arrest and bring the deceased within his control. Unless it clearly appears and is proven by the evidence in the cause that the defendant acted beyond this, he should have been acquitted. State v. Dierberger, 96 Mo. 666; 2 Bish Crim. Law (6 Ed.), secs. 647, 651; State v. Ross, 142 Mo. 418; State v. Lane, 158 Mo. 572; State v. McNally, 87 Mo. 652. (3) The giving of instruction 4 was error. The transcript does not show a single statement made by any witness that defendant ever made any statement verbal or otherwise, concerning the homicide. The instruction led the jury to believe that defendant had made statements concerning the killing. (4) The giving of instruction 9, on the part of the State, was error. It omits the question of reasonable doubt. We do no think instruction 3, on the part of the State, cures this error. (5) The information is bad, and charges only manslaughter in the fourth degree, if it charges any offense at all. The information omits the words, "on his oath aforesaid" or it omits to charge "on the affidavit of the said Robert Cox aforesaid." State v. Furgerson, 152 Mo. 98; 1 Bish. Crim. Proc. (2 Ed.), sec. 712; State v. Stacy, 103 Mo. 15; State v. Meyers, 99 Mo. 107. (6) The record does not show the filing of an affidavit, by Robert Cox, with either the circuit clerk or the prosecuting attorney, charging the defendant with the crime of murder or any other crime.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

(1) Under the state of the record in this case, it is not fair to assume that the verdict of the coroner's jury was introduced in evidence. (2) The contention that the court erred in admitting the testimony of witness Winkler is without merit. Although the threats alleged to have been made and related by the witness occurred eighteen months prior to the trial, this is no reason why they were not admissible as evidence. The competency of threats is not affected by remoteness. State v. McNally, 86 Mo. 644; State v. Glohn, 97 Mo. 679; Underhill on Crim. Ev., 392. (3) There was an abundance of testimony tending to show that a resolution had been passed by the town prohibiting the use of the pavements for the purpose of selling fish. There was ample evidence that the deceased had been apprised that it was the desire of the council for him to see that this resolution was in force. The defendant had all the benefit that he would have had, had the council proceeded to enact an ordinance with due solemnity. Much evidence was introduced tending to show that he had been admonished that he must see to it that the provisions of the resolution were not violated and even though it be said that some evidence was excluded on this point, still no harm could have resulted to the defendant on account of this, because the evidence which he offered as to his good faith in the enforcement of the supposed law was overwhelming and undisputed. (4) The complaint lodged against instruction 8, given on behalf of the State, is not tenable. It is a correct enunciation of the law. Besides, the court, in instructions 9 and 11, fully advised the jury as to the defendant's rights as an officer and as to his good faith in making the arrest if he had good reason to believe, and did believe, that there had been an ordinance enacted to prohibit the sale of provisions upon the sidewalk. These two instructions placed the theory of the defense before the jury quite as favorably as the circumstances justified. (5) The court properly struck out that portion of instruction 11 advising the jury that the defendant had the right to take the life of the deceased in the event of the failure of the deceased to submit to arrest. The rule in reference to felonies is that an officer has the right, in making an arrest, to use all the force necessary to overcome resistance, even to the taking of life; but this rule does not apply as to misdemeanors. State v. Dierberger, 96 Mo. 666; 2 Bishop's Crim. Law, sec. 649. (6) The information was filed, not upon the knowledge, information and belief, or upon the official oath of the prosecuting attorney; but upon the affidavit of Robert Cox. The prosecuting attorney was presuming to act only upon the affidavit of Cox and the defendant was thus advised at the beginning of the information. There was nothing lacking in this information that tends to prejudice the substantial rights of the defendant, and if our statute of jeofails is available in any case, it seems that it ought to be applied here.

BURGESS, J. Brace, C. J., Fox and Lamm, JJ., concur; Valliant, J., concurs except as to the State's fourth instruction which he thinks is erroneous; Gantt, J., concurs in all that is said except as to the form of the information, from which he dissents; Marshall, J., absent.

OPINION

In Banc.

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 twenty 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 eighth 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 sidewalk 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 Winkler, a witness for the State, who testified over the objections of defendant to threats made by defendant a year or eighteen 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...