State v. Dierberger

• Decision Date: 20 December 1888
• Citation: 10 S.W. 168,96 Mo. 666
• Parties: The State v. Dierberger, Appellant
• Court: Missouri Supreme Court

10 S.W. 168

96 Mo. 666

The State v. Dierberger, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis Criminal Court. -- Trial before Hon. J. L Thomas, Judge of the Twenty-Sixth Judicial Circuit.

The defendant had been appointed a deputy constable but had not taken the oath or filed his appointment with the city register. His defense was that the homicide was justifiable having been committed without resort to unnecessary force while attempting to arrest the deceased for a breach of the peace.

Reversed and remanded.

C. P. & J. D. Johnson and Smith, Silver & Brown for appellant.

(1) The instructions given by the court on the question of the force the defendant was authorized to use in arresting the deceased, are contradictory, and for this reason the judgment should be reversed. Contradictory and inconsistent instructions are grounds for reversal. State v Simms, 68 Mo. 305; State v. Mitchell, 64 Mo. 191. (2) An affray (R. S., sec. 1509) having occurred in the presence of the defendant, he, as a constable, was authorized to preserve the peace and arrest the disturbers. State v. Grant, 76 Mo. 236; State v. McNally, 87 Mo. 652. And in preserving the peace and making the arrest, defendant, when resisted, had the right to use all the force necessary to effect such purpose, even to taking the life of the deceased. Defendant's use of force was, therefore, not limited to that necessary for the defense of his own person, and the court erred in so instructing. R. S., sec. 1235; 4 Blackstone, 178; 1 East's Pleas of Crown, 307; Foster's Crown Law, 272; 1 Russell on Crimes [9 Am. Ed.] 892; 7 Bacon's Abridg. 209; 4 Stephen's Comm. 98; 2 Bishop's Crim. Law [11 Ed.] secs. 647, 650; 1 Wharton Crim. Law [8 Ed.] sec. 402; Barbour's Crim. Law, 35. We submit that State v. McNally, 87 Mo. 664, is in direct conflict with all the authorities, and should be overruled. (3) The instruction on murder in the second degree is erroneous in that it entirely ignores the fact that defendant was an officer and whether or not he committed the homicide "in lawfully keeping and preserving the peace." R. S., sec. 1235. The instructions should not ignore a material issue or a defense. State v. Foley, 12 Mo.App. 431; State v. Johnson, 76 Mo. 121. The instruction is also erroneous in that it declares that from wilful killing with a pistol the law presumes murder in the second degree. It omits the elements of "malice aforethought." As was said in State v. Curtis, "Where there is wilful killing without deliberation and not with malice afore-thought, the offense is manslaughter." State v. Curtis, 70 Mo. 606. Being an officer, the presumption of doing his duty prevails. Chandler v. Bailey, 87 Mo. 644; Barker v. Underwood, 63 Mo. 384. The instruction is further erroneous in failing to state that the defendant is only required to repel such presumptions by a reasonable doubt as to his guilt. (4) The instruction given on manslaughter in the fourth degree is erroneous. It ignores the question whether or not the defendant wilfully or intentionally shot and killed the deceased. Unless he so did the killing, the offense is manslaughter in the fourth degree. State v. Edwards, 70 Mo. 480. (5) The court committed error in refusing to give the instructions as asked by the defendant. It particularly erred in its refusal of the fourth instruction. R. S., sec. 1235; State v. Eaton, 75 Mo. 586; State v. Johnston, 76 Mo. 121; State v. Palmer, 88 Mo. 568. (6) The defendant was entitled to an instruction on manslaughter in the second degree, based on Revised Statutes, section 1243. The court must give an instruction on every grade of homicide disclosed by the evidence. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568.

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

(1) The instruction in regard to the force defendant was authorized in using to effect the arrest of deceased is not erroneous. The latter part of the instruction which limits the authority of an officer attempting to arrest one for a breach of the peace, is a correct and proper explanation and modification of the general statement in the beginning of the paragraph as to the authority of "the officer to overcome all resistance even to the taking of life." (2) An officer is not justified in killing one merely because he resists arrest. Something more must be done by the person sought to be apprehended than mere resistance to authorize his being killed by the officer. The rule clearly stated is as follows: If one liable to arrest puts in jeopardy the life of an officer attempting to arrest him, such an one may be killed and the act will be justifiable; but mere resistance to arrest without endangering the life of the officer will not justify or excuse the killing. The authorities cited by appellant, as well as those discussed in the minority opinion of this court, in State v. McNally, 87 Mo. 644, show that it is not the resistance to arrest that justifies or excuses a homicide committed by an officer, but there must be added to this resistance a reasonable or absolute necessity for the killing. Bishop says: "If instead of flying, one sought to be arrested, stands and resists, the officer may press forward in his purpose, even though the case be not a felony; and if, in pressing forward, he is obliged to take the life of the other as in self-defense, he will be justified." 1 Bish. Cr. Proc. [2 Ed.] sec. 160; see also 1 Hale's P. C. 481 and cases under notes 4 and 5; 1 Whar. Cr. Law [8 Ed.] sec. 402. (3) There was no evidence that Horne, the deceased, resisted arrest. (4) The instructions are to be taken and construed as a whole. 80 Mo. 516. The jury were clearly, and as we think liberally, instructed as to the official character of defendant and his authority to preserve the peace; it was not necessary to repeat this in each instruction. The law presumes murder in the second degree from the killing with a pistol. State v. Gassert, 65 Mo. 352. The instruction for manslaughter in the fourth degree correctly defines that offense. R. S., sec. 1249. Instructions asked by defendant and refused by the court were properly refused because the law applicable to the case under the evidence was properly and fully declared by the court. State v. Smith, 80 Mo. 516.

Black, J. Ray, J., absent; Norton, C. J., dissents.

OPINION

Black, J.

The defendant stands convicted of murder in the second degree. This case was here before, and reference is made to the opinion of the court in 90 Mo. 369, for a general statement of the evidence. The contention now is that the instructions given do not present the law fairly applicable to cases where an officer kills one who is resisting an arrest.

John Horne, the deceased, and Joseph Jackson went to the front platform of the horse-car and there got into an altercation with the driver, which resulted in a scuffle, or, as most of the witnesses say, a fight. The conductor opened the front door and they fell into the car. Defendant, in the meantime, went to the front to check up the car, which was going down grade at a rate of speed dangerous to the passengers. The driver returned to his post and defendant returned to the inside of the car, and addressing himself to Jackson, said: "I am an officer, and I will arrest you," or "if you don't keep quiet, I will arrest you." At the same time, he caught Jackson by the lapel of his coat. Jackson said: "If you are an officer I will go with you." Horne, the deceased, said: "No, Jackson, he is not an officer and he can't arrest you, and I don't give a d -- n whether he is an officer or not, he can't take you." Jackson said: "All right, I won't go with him." Defendant then took out his pistol and held it up. Thus far there is no substantial conflict in the evidence.

Mrs. Horne, widow of John Horne, testified: "The conductor told defendant to put up his pistol; he then caught hold of my husband and forced him to the front, down and half off of the seat; defendant fired one shot through the window, and then put his arms around my husband's neck and fired the fatal shot."

Carroll, the conductor, testified: "Told defendant to put up his pistol; he put down his arms; Jackson struck me and I pushed him down; did not see Horne or defendant when the first shot was fired; they were separated and standing up when the defendant fired the second shot, which killed Horne; defendant then jumped off the car; I followed him and he pointed the pistol at me."

The defendant was examined and cross-examined at great length, and his testimony is to the effect that when the conductor told him to put up the revolver, and when he was in the act of doing so, Horne, the deceased, rushed forward on him, and that both Jackson and Horne struck him about the same time, forcing defendant down in the corner of the car; that the fight continued from the inside of the car to its outside; and then back on the inside, and that the second shot was fired on the inside of the car when the defendant and the deceased were clinched. During the contest, the defendant received a cut on the hand and one on the nose, both of which appeared to have been inflicted with a sharp instrument; his face and eyes were badly bruised. There is much other evidence on the one side and the other, but enough has been given to show its general scope and the different theories of fact.

The court told the jury that defendant was a peace-officer, and as such it was his right not only to command the peace but to enforce it, and to arrest any one committing a breach of the peace in his presence, and take him before the proper officer to be dealt with according to law. This direction is correct so far as it goes, but it should go further and state that defendant's authority to so act was the...