State v. Estis

• Decision Date: 31 October 1879
• Citation: 70 Mo. 427
• Parties: THE STATE v. ESTIS, Appellant.
• Court: Missouri Supreme Court

70 Mo. 427

THE STATE

v.ESTIS, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

Indictment for resisting arrest by a constable. During the argument of the case to the jury the prosecuting attorney made use of this remark: Malice may bud and bloom in a man's heart almost in a moment, or in a short time. The other facts appear in the opinion. Defendant was convicted and appealed.

Samuel Hardwicke, H. L. Routt, W. M. Burris for appellant.

1. The indictment does not charge, nor is it proven, that at the time of the commission of the alleged offense the constable had in his possession a warrant for the arrest of defendant. Without this he had no right to make the arrest, and defendant had a right to resist. Const. Mo., art. 2, § 30; Wag. Stat., § 36, p. 1079; Ib., § 8, p. 1072; Johnson v. State, 5 Texas App. 43.

2. The indictment undertakes to set out the warrant by its tenor. It must do so verbatim. Wharton Am. Crim. Law, 307 et seq. The variances between the warrant as set out and as proven, are fatal. Rex v. Beech, 1 Leach Cr. C. 158; 1 Bishop Crim. Proced., § 311; State v. Henderson, 15 Mo. 486.

3. The court erred in refusing to allow witness Smith Story to answer question in regard to previous threats of parties against defendant. It had already been proven that on two former occasions parties without a warrant, and among them this same Lynn, who was constable at this time, had molested this same house in search of defendant; and if threats had been made by parties against defendant, and he had reason to believe that he would not be allowed to have a trial in the courts, he certainly was entitled to show the threats against him indicating the animus of defendant, if for nothing else in mitigation of the offense in the eyes of the jury.

4. The court should have rebuked the prosecuting attorney for making use of the remark, “Malice may bud and bloom in a man's heart almost in a moment, or in a short time.” In stating this he was stating a matter of law to the jury which was not his province.

5. The indictment is fatally defective in not charging that the assault was committed with a deadly weapon; and also because of uncertainty as to time. Jane v. State, 3 Mo. 63; State v. Hardwick, 2 Mo. 228; State v. McCracken, 20 Mo. 411; State v. Hayes, 24 Mo. 358.

J. L. Smith, Attorney-General, for the State.

1. The indictment is good. It is in the language of the statute, (Wag. Stat., § 29, p. 449,) and that is sufficient. State v. Phelan, 65 Mo. 547. Nor is there any uncertainty as to time. The words “then and there” can refer only to the date last before mentioned, January 20th, 1879. It is certainly good after verdict. State v. Freeman, 21 Mo. 481; State v. Bailey, 21 Mo. 484; State v. Steeley, 65 Mo. 218; State v. Stumbo, 26 Mo. 306; Wag. Stat., § 27, p. 1090.

2. The variances between the warrant as set out in the indictment and as offered in evidence, are immaterial. 2 Wag. Stat., § 22, p. 1089; 1 Wharton Crim. Law, (9 Ed.) §§ 309, 606; Rex v. Hart, 1 Leach Cr. C. 172; Comm. v. Parmenter, 5 Pick. 279; Comm. v. Riley, Thacher's Crim. C. 67; United States v. Hinman, 1 Bald. C. C. 292; 2 Russ. on Crimes, (9 Ed.) 799, 800.

3. It was not necessary to show to whom the justice delivered the warrant. It was legal and regular on its face, was issued by an officer having jurisdiction so to do, and directed to Lynn, and when it came into his hands, from any source whatsoever, it was his duty to execute, and the defendant's duty to obey, it. State v. Weed, 21 N. H. 262; Comm. v. Martin, 98 Mass. 4; Faris v. State, 3 Ohio St. 159; Boyd v. State, 17 Ga. 194; State v. Green, 66 Mo. 631.

4. We think it conclusively appears that the warrant was in Lynn's possession during all this time. But that is not a material inquiry under the circumstances of the case. The fact whether Lynn had the possession of the warrant or not, is of no consequence, so far as the defendant's guilt is concerned. When he demanded that the defendant surrender, and gave notice that he had a warrant for his arrest, it was defendant's duty to obey. If he refused and resisted the officer after the demand and notice, he is guilty as charged. Rex v. Curtis, Foster's Crim. Law 135; 1 East P. C., ch. 5, § 81, pp. 314, 315; Comm. v. Cooley, 6 Gray 350; State v. Green, 66 Mo. 631, 649.

5. The court properly excluded the evidence of threats. The defendant was notified that a constable had come to arrest him, having a warrant for that purpose. He was in law bound to yield; his refusal to do so, and his subsequent assault on the officer constituted a violation of the statutes of this State. Facts which would go to show him innocent, if the arrest have been attempted by certain other parties, constitute no defense to the charge of an assault upon Lynn. If he did not believe what was told him by Lynn, and chose to act contrary to his demand, he did so at his peril. His mistake cannot excuse him. State v. Green, supra. If every idle threat made against a person charged with crime is to furnish justification for an assault upon an officer attempting to arrest such person, every offender may with impunity resist arrest, and officers will be without the protection of that law whose ministers they are, and at the mercy of every offender whom they may be compelled to arrest. State v. Oliver, 2 Houst. (Del.) 585.

SHERWOOD, C. J.

Various objections are urged against the indictment, which is in these words:

STATE OF MISSOURI,

)

)

ss.

County of Clay,

)

In the circuit court of Clay county, Missouri, February term, A. D. 1879: The grand jurors for the State of Missouri, summoned from the body of the county of Clay aforesaid, empaneled, charged and sworn, upon their oaths present, that on the 6th day of November, 1876, at the county of Clay aforesaid, John V. B. Flack came before James P. Withers, who was then and there a justice of the peace in and for Fishing River township, in said county, and then and there made complaint on oath, before said James P. Withers, justice of the peace, that one John C. Estis, alias George Estis, then lately before, to-wit: on the 26th day of October, 1876, at the county of Clay aforesaid, feloniously and designedly, with intent to cheat and defraud said John V. B. Flack, did falsely pretend to the said John V. B. Flack that one John Williams was owing him, the said John C. Estis, alias George Estis, a large sum of money, to-wit: the sum of $20 for work and labor performed by the said John C. Estis, alias George Estis, for said John Williams; and the said John V. B. Flack believing the said false pretenses, so made as aforesaid to be true, and being deceived thereby, was induced by reason thereof to accept an order given by said John C. Estis, alias George Estis, on said John Williams for the sum of $5, the consideration of a pair of boots of the value of $5, which said pair of boots the said John V. B. Flack then and there sold and delivered to the said John C. Estis, and that the said John C. Estis, alias George Estis, by means of said false pretenses, so made to the said John V. B. Flack as aforesaid, unlawfully, feloniously and designedly did obtain of and from the said John V. B. Flack the said pair of boots of the value of $5, of the goods and chattels of the said John V. B. Flack, with intent him, the said John V. B. Flack, then and there to cheat and defraud of the same, whereas in truth and in fact, the said John Williams was not owing at the said time aforesaid the said John C. Estis, alias George Estis, the said sum of $20, or any other sum of money whatsoever for work and labor performed by the said John C. Estis for the said John Williams; the said John C. Estis then and there being guilty of obtaining the said pair of boots aforesaid under false pretenses, against the peace and dignity of the State; which said complaint is in words and figures following, to-wit:

“STATE OF MISSOURI,

)

)

ss.

County of Clay,

)

On the 6th day of November, 1876, personally appeared before me, a justice of the peace in and for said county, John V. B. Flack, who, being duly sworn on his oath, states, that on or about the 26th day of October, 1876, at said county of Clay, one John C. Estis, alias George Estis, did then and there unlawfully obtain by false pretenses of the said John Flack goods to the amount of $5 viz: to one pair of boots, the said John C. Estis giving the said John Flack a written order on John Williams for $5, thereby obtaining the boots.

JOHN V. B. FLACK.

Subscribed and sworn to before me this 6th day of November, 1876.

JAMES P. WITHERS, Justice of the Peace.”

And that thereupon the said James P. Withers, as such justice of the peace, then and there issued his warrant and legal process under his hand, commonly called a State warrant, in the words and figures following:

STATE WARRANT--J. P.

STATE OF MISSOURI,

)

)

ss.

THE STATE OF MISSOURI

County of Clay,

)

To the Sheriff or any Constable of said County--Greeting:

Whereas, complaint has been made before me, one of the justices of the peace in and for the county aforesaid, upon the oath of John V. B. Flack, that John C. Estis, alias George Estis, late of the county aforesaid, did, on or about the 26th day of October, A. D. 1876, at the county of Clay, did obtain from the said John V. B. Flack goods to the amount of $5 under false pretenses, the said John C. Estis giving an order to the said John Flack on John Williams for the same amount of $5.

These are, therefore, to command you to take the said John C. Estis, alias George Estis, if he be found in your county, and you safely keep, so that you have his body forthwith before me, or some other justice of the peace, to answer the said complaint, and be further dealt with according to law.

Given under my hand this 6th day of November, A. D. 1876.

JAS. P. WITHERS, Justice of the Peace.

Directed to the sheriff or any constable of said county, reciting therein the aforesaid accusation against...