State v. Dierberger

• Decision Date: 20 December 1886
• Citation: 2 S.W. 286,90 Mo. 369
• Parties: The State v. Dierberger, Appellant
• Court: Missouri Supreme Court

2 S.W. 286

90 Mo. 369

The State v. Dierberger, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from the St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.

Reversed and remanded.

Charles P. Johnson, John D. Johnson and C. C. Simmons for appellant.

The eighth instruction, given by the court for the state, and which told the jury that the defendant at the time of the homicide was not a deputy constable under the laws of the state, was erroneous. R. S., sec. 652. The statute requiring the appointment of a deputy constable to be registered, is only directory, and does not affect the validity of his acts. State v. Muir, 20 Mo. 303; State v Underwood, 75 Mo. 230. Defendant was both de facto and de jure a deputy constable, and it was not only his right but his duty to suppress the disturbance; and if it constituted a criminal misdemeanor, to arrest the offenders at once. State v. Carrol, 38 Conn. 449; 4 Blackstone Com. 145-6; 1 Chitty's Crim. Law, 20, 23; 1 Bishop's Crim. Proc., secs. 214, 849; Com. v. Deacon, 8 S. & R. 48-9; Burris v. Erben, 40 N.Y. 463; Donovan v. Jones, 36 N.H. 246; Taylor v. Strong, 8 Wend. 384; Main v. McCarty, 15 Ill. 441. When an affray or other misdemeanor is committed in the presence of the officer, if he does not arrest the offender at the time, but goes away and returns after the entire transaction is over with no danger of its renewal, he is then too late to make the arrest without a warrant. But the arrest need not be instant. It may be made at a reasonable time and fit opportunity, or, as it has been said, on quick pursuit. 1 Bish. Crim. Proc., sec. 183; State v. Underwood, 75 Mo. 230; State v. Ward, 14 Mo. 138.

B. G. Boone, Attorney General, for the state.

(1) Defendant was not a deputy constable within the meaning of the law, and as such, authorized to make arrests. He was never sworn in as a deputy. His appointment had not been registered. He had never exercised or attempted to exercise the duties of the office, and the appointment is repudiated by the constable, who says he only gave defendant the appointment upon repeated requests so to do, and never intended him to act as deputy. (2) As a general principle, officers of the law, when their authority to arrest or imprison is resisted, will be justified in opposing force to force, even if death should be the consequence; but they should not come to extremities upon slight interruptions without reasonable necessity. If an officer should kill when no resistance is made, it would be murder; and the same rule obtains with equal force if an officer kill after the resistance is over and the necessity has ceased. 1 East P. C. 297; 1 Whar. Crim. Law [8 Ed.] sec. 402; 6 Br. Crim. C., D. & P. 35. (3) An officer in arresting one for a misdemeanor is not justified in killing, unless his life is in peril. The case then becomes one of self defence. 1 Whar. Crim. Law [8 Ed.] secs. 404, 414; State v. McNally, 2 West. Rep. 481; S. C., 87 Mo. 644. (4) And any arrest, not unlawful in itself, may be performed in a manner so criminal and improper, or by authority so defective as to make the party, who, while performing it causes death, guilty of murder. 1 Whar. Crim. Law [8 Ed.] sec. 408, and cases cited. (5) It is exceedingly doubtful whether a constable can confer authority upon another to execute criminal process unless he complies with the substantial requirements of the law regulating the appointment of deputies. Saulsbury v. Commonwealth, 1 Ky. L. J. 181; 3 Crim. Law Mag. 111. (6) If defendant was an officer, and was attempting to arrest Jackson for an affray, or Horne, the deceased, for resisting his arrest, this does not justify or even extenuate the crime. Jackson and Horne's offences were only misdemeanors. R. S., secs. 1437, 1438, 1509. While it is the duty of sheriffs and constables to preserve the peace, they are possessed of no authority to punish for a breach of it. Murfree on Sheriffs, sec. 1164; Crocker on Sheriffs and Constables, sec. 48.

OPINION

Black, J.

The defendant was tried in the St. Louis criminal court on an indictment for murder in the first degree and was convicted of murder in the second degree.

The evidence shows that Dierberger, the defendant, his wife and sister, got into a street car in St. Louis. The deceased, John Horne, his wife, and Joseph Jackson, got on the same car. It was about twelve o'clock at night, and the parties were going to their respective homes. The car was well filled with passengers, and Horne and Jackson, who, the evidence tends to show, were somewhat under the influence of intoxicants, went to the front platform and eventually got into a dispute with the driver, which resulted in the use of boisterous language, and a scuffle between the driver and Jackson. The conductor, followed by the defendant, went from the rear to the front of the car, and when the door was opened, the driver, Jackson, and perhaps Horne, fell into the aisle of the car. There is evidence that the defendant went to the front platform first to stop the car, which by this time was going at a rapid rate of speed. At all events, immediately, and while the parties were all in the car, defendant stepped up to Jackson and said he was an officer and would arrest him, and at the same time took hold of Jackson, who said, "If you are an officer I will go with you." Horne then said, "Don't go Jackson, he is no officer." There is also evidence that Horne said, "I don't give a damn what you are, you can't take him." Other words passed between Horne and the defendant, when the latter drew a pistol, but at the request of the conductor, put it away. It is said that in less than half a minute defendant pressed Horne to the front of the car and fired two shots, one of which killed Horne. Again, there is evidence that Jackson hit defendant when Horne came to Jackson's aid, and a fight or scuffle ensued, in which defendant received bruises and cuts about the face, and in which Horne was killed by one of two shots fired by defendant.

The defendant put in evidence a written and formal appointment as deputy constable, dated April 21, 1883, and signed by John F. C. Frese, constable of the thirteenth district. It is conceded this appointment was not filed with the city register, who performs the duties of a county clerk, and that defendant had taken no official oath. For the state the constable testified that he gave defendant the appointment after repeated requests therefor, and that no more was said at that time. He also stated, over objections, that he did not report the appointment, and that he did not intend to have defendant act as deputy, but it is not claimed that this intention was communicated to defendant. The court, among other instructions, told the jury in substance that, under the evidence, defendant was not a deputy constable under the laws of this state; and that a private person who assumes to act as an officer of the law, does so at his peril, and although the jury might believe that defendant in good faith believed he was a deputy constable, yet such belief did not authorize him to act as such deputy, nor shield him from unlawful acts.

The statute, section 652, gives every constable power to appoint deputies, for whose conduct he shall be answerable, and provides that the appointment shall be filed in the office of the county clerk. It was said in State to use of Moutrey v. Muir, 20 Mo. 303, that this statute requiring the appointment to be filed was directory, though that was a suit against the constable and his sureties for the delinquencies of the deputy. In the later case of State v. Underwood, 75 Mo. 230, it was also said that the only object the law has in requiring the appointment to be filed in the office of the county clerk, is to preserve the record evidence of the fact of such appointment having been made. In that case the defendant was indicted for killing the deputy while attempting to arrest defendant for another alleged crime. The principle of those cases is applicable here, and the failure to file the appointment cannot deprive the defendant of his right to say that he was a deputy constable.

The more difficult question arises from the failure of the defendant to take an oath of office. Here it may be stated that the uncommunicated intentions of the constable had nothing to do with the case, and the evidence in that behalf should have been excluded. The defendant accepted the appointment for what it purported to be, and his right to act as a deputy must be tested by it and the failure to take an oath of office. The...