State v. Evans

• Decision Date: 12 March 1901
• Citation: 61 S.W. 590,161 Mo. 95
• Parties: STATE v. EVANS.
• Court: Missouri Supreme Court

61 S.W. 590

161 Mo. 95

STATE v. EVANS.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

JURY — CHALLENGES — POLICEMEN — AUTHORITY TO MAKE ARREST — RESISTANCE — MURDER.

1. Challenging a juror for cause is insufficient, unless the ground of the challenge is distinctly specified.

2. Rev. St. 1899, §§ 5784, 5788, authorizing policemen in cities to make arrests without process for offenses against the city committed in their presence, do not limit their authority at common law to make arrests without process for crimes against the state; and if a police officer has reasonable cause to suspect that a person apprehended for a felony is guilty, and the prisoner kills the officer in his attempt to escape, such killing is murder.

3. A person arrested without process by policemen, who are known to him and clothed in their official uniform, cannot justify resistance and the killing of one of them on the ground that he had no notice of their official character.

4. A person apprehended for a past felony on a fresh pursuit is presumed to know the cause of his arrest, and cannot justify resistance and the killing of the officer making the arrest on the ground that he had no notice of the charge against him.

5. Where an officer, having knowledge of a past felony and of the one who committed it, arrests the offender without process, the killing of the officer by the prisoner while resisting arrest is murder in the first degree.

6. Where an officer arrests a person for a felony without process on a reasonable suspicion, the killing of the officer by the prisoner while attempting to escape is murder in the first degree, though no felony has been committed.

Appeal from circuit court, Cooper county; George F. Longan, Special Judge.

Ellsworth Evans was convicted of murder in the first degree, and he appeals. Affirmed.

C. D. Corum and W. G. Pendleton, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, P. J.

For the murder of William L. Hennicke, a policeman of Boonville, by shooting him with a pistol, defendant, a negro, was put upon his trial, which resulted in a verdict of guilty of murder in the first degree, and judgment and sentence accordingly.

The homicide happened on this wise: A number of business houses in Boonville had been burglarized during the month of March of last year, which closed the nineteenth century. Nor did the burglars neglect the cigar store of Louis Bernard. It had been burglarized three or four times in succession, the last time the night before, and the cash drawer each time depleted of its funds. On the night of 26th of the month mentioned, John Bernard, the brother of Louis, remained at the cigar store of the latter, and with Henry Winklemeyer kept watch for the burglarious thief. He came about 10 o'clock, and stopped at the front door two or three times for a moment, but seemed frightened away by passers-by; but finally, after the lapse of a few minutes, he went up the steps, unlocked the door with a false key, walked away, came back, opened the door, and walked in, leaving the door open about two inches. He stood at the door, holding the latch, when he seemed to take alarm from persons passing by, and was about to go out again, when Winklemeyer hallooed to him to throw up his hands, whereupon defendant ran out through the door, closing it behind him. Winklemeyer and Bernard followed in close pursuit, and, seeing defendant in front of Dan's drug store, Winklemeyer shot at him once, when he disappeared. Thereupon Bernard returned to the cigar store, closed it, and started home, when Officers Hennicke and Jones called to him across the street, asking him if he could recognize the burglar, when he replied he could, — that it was "Jocko." On being asked which one, he answered, "The one that used to be on the 'bus a good deal." Bernard knew the negro well, and had known him for three or four years; and the light was such in the cigar store, from neighboring establishments, as to render recognition by Bernard of defendant, when in the cigar store, easy. Winklemeyer, who was twelve feet from defendant when in the cigar store, though he had never known him before, had no difficulty in subsequently identifying him as the same man he had seen enter the cigar store. When Bernard was accosted by the police officers as aforesaid, it was about 10:15 to 10:20 p. m. Hennicke then said to Bernard: "`Well, I have some other stores to watch to-night; but we ought to catch him, and so I will go down to-night. I know where he stays.' He says, `We will go down.' So Officers Jones and Hennicke and Knack and myself went down. Q. Adolph Knack? A. Yes, sir. * * * Q. Where did you go? A. We went down to the house this side of the track; the old `Sandrock House,' they call it. Q. You speak of the Missouri Pacific track? A. Yes, sir. Q. Where is that house situate with reference to the Missouri Pacific track, — with reference to the depot? A. It is south of the track. Q. Just across the street, is it? A. Yes, sir; just across the street. Q. Now, what occurred there? A. Why, we went down there, and the officers knocked on the door. The woman didn't want to let them in at first. She said she was in bed. So they told her they were looking for some one; to get up. She finally got up and opened the door, and the officers went in. Q. Where were you at that time? A. I was standing out in front of the house, or steps; and as they were coming out, why, Evans came around between that hallway, — there is a hallway between the two houses, — him and some more young fellows and some women. And he stepped upon the step, and the officers came out. They put their hand on him, and I says, `That is the man.' And he said to the officers, he said, `I didn't do anything.' Hennicke says, `You will find out about it in the morning.' Q. Well, they arrested him there, did they? A. Yes, sir; he went along with them. They walked down as far as the track, and went over to the Missouri Pacific depot, and come up on the other side. Q. Now, which side of that street would that be? A. That would be on the north side of the street. Q. As they went up the street, how were they walking with reference to each other? A. Evans was in the middle, between the two officers. Hennicke was on the north side of him, and Jones on the south side. Q. Well? A. Well, as they got in front of Deck's property, down there, why, Evans had a deck of cards in his hands. And he said to Jones, `Take these cards,' and handed them to Jones. Jones put them in his pocket. As he did Evans jerked down his arm, as if to get into his pocket or something. Jones says, `No, you don't.' And then they began tussling. Q. Where is that Deck property with reference to the Missouri Pacific depot? A. It is east. Q. Well, how many doors? A. Why, it is, I guess, 150 feet from the depot. Q. This occurred about that far, then, from the depot? A. Yes, sir. Q. Which hand, if you remember, was the deck of cards in? A. Why, it was in this hand, — the right hand. Q. Well? A. And they began tussling, and Evans pulled them into the alley. Q. How does the alley run there, Mr. Bernard? A. Runs north and south. Q. Crosses Morgan street right there? A. Yes, sir; and they tussled up into the alley about 15 feet, and began tussling there against the fence, and swayed back, and finally a flash and a shot fired towards Jones, and a flash and the report was to Hennicke; but the first report was louder than the second report. Q. At this time where were you? A. I was standing at the mouth of the alley, facing them. Q. They were, I understand, about 15 feet in the alley, perhaps? A. Yes, sir. * * * Q. From where you stood, could you see the direction of these flashes? A. Yes, sir. Q. The first one went which way? A. Towards Officer Jones, and the other went towards Officer Hennicke. Q. The first, then, was towards the south, was it? A. Yes, sir. Q. And the second towards the north? A. Towards the north; yes, sir. Q. Well, did you hear any other shots fired there, Mr. Bernard? A. No, sir; just these two. Q. After you heard these shots, then what occurred? A. Why, in a second or two Hennicke fell forward right onto Evans' chest; looked like he was trying to throw him; and then they all three kind of tussled over and fell with their heads this way." Bernard then tells of defendant releasing himself from the officers and making his escape, and of Officer Hennicke dying in a few moments in consequence of the shot he had received from defendant. Officer Jones, also, had his cheek grazed by the first shot fired by defendant. Defendant fled the city. He was captured the next morning by special officers, at a station 20 miles west of Boonville on the Missouri Pacific Railroad.

Policeman Jones' account of the arrest is the following: "Then we walked out the door, and on the top step, just as we walked out the door, this man Jocko was standing at the door; and I put my hand on him about the same time that Mr. Hennicke did, and I said to him: `You are just the fellow I am looking for. We want you.' Q. Did Mr. Bernard say anything at that time, — about that time? A. And Bernard says: "That is the fellow; that is the fellow.' And Jocko says: `What do you want to arrest me for? I haven't done anything.' Mr. Hennicke says: `Never mind about that. We will tell you all about that in the morning.' By this time we were at the railroad. Then we went north along the railroad — Q. Well, did you arrest the defendant there? A. We arrested him there; yes, sir. Q. And as you went to the railroad he was under arrest and in your custody, was he? A. He was under arrest at the top steps. Q. Well, go ahead, Mr. Jones. A. Then we got across to the north side of the street, and we went along there, possibly until we got in front of that gate, or in front of Mr. Preston's grocery store. He had a deck of cards in his hands, and he says to me: `What will I do with these?' And I...