State v. Ford

• Decision Date: 07 July 1939
• Docket Number: 36472
• Parties: The State v. Herman Ford, Appellant
• Court: Missouri Supreme Court

130 S.W.2d 635

344 Mo. 1219

The State v. Herman Ford, Appellant

No. 36472

Supreme Court of Missouri

July 7, 1939

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Reversed and remanded.

Sharp & Sharp and Corbett & Peal for appellant.

(1) Under the facts in this case defendant was entitled to an instruction on the duties and rights of an officer in making an arrest. State v. Dierberger, 96 Mo. 666; State v. Turlington, 102 Mo. 658; State v Montgomery, 250 Mo. 670; State v. Rose, 142 Mo 428; 30 C. J., p. 40; 3 A. L. R., p. 1170; Taylor v. Commonwealth, 114 S.W.2d 485; State v. Lane, 158 Mo. 588; State v. Fuller, 96 Mo. 168; State v. McNally, 87 Mo. 657. (2) Where an officer has good reason to believe he has authority to arrest an offender and acts in good faith in making the arrest and the offender resists, the officer has the right to use force to accomplish the arrest and if it becomes necessary to kill him in order to save his own life. State v. Coleman, 186 Mo. 151. (3) Defendant was entitled to have the jury instructed upon any theory of the case which his evidence tended to establish. State v. Stallings, 33 S.W.2d 917, 326 Mo. 1037; State v. Wilson, 242 Mo. 504.

Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.

(1) An officer is not justified in killing one guilty of a misdemeanor to effectuate his arrest or prevent his escape. Sec. 3985, R. S. 1929; 42 A. L. R., p. 1203; State v. Salts, 56 S.W.2d 21, 331 Mo. 673. (2) General assignments of error will not be reviewed by this court. Sec. 3735, R. S. 1929; State v. Huddleston, 123 S.W.2d 184; State v. Barnes, 274 Mo. 625, 204 S.W. 267.

OPINION

Ellison, P. J.

The appellant, town marshal of Risco, was convicted of murder in the second degree in the Circuit Court of Pemiscot County on change of venue from New Madrid County, for killing his prisoner Braxtol Gray. His punishment was assessed at ten years' imprisonment in the penitentiary. According to his testimony he was executing a warrant for the arrest of Gray based on a misdemeanor charge when the latter made an assault upon him and attempted to seize his pistol. Thereupon the marshal shot Gray inflicting mortal wounds from which he died four months later. The State's evidence further showed Gray was drunk and belligerent at the time; that he was accompanied by a companion in the same condition who asked him if he needed any help to which Gray answered "Hell, no;" and that he had made threats against the life of appellant within a few hours before the homicide.

At the trial the court gave an ordinary instruction on self-defense but refused two requested instructions, A and B, defining appellant's right as an officer to use force in arresting the deceased. His chief assignment of error on this appeal complains of the refusal of these two instructions. The learned Assistant Attorney General finds no fault with the form of the instructions but contends the appellant was not legally entitled to them. This presents a clear cut issue of law decisive of the case. The instructions were as follows:

A.

"The court instructs the jury that if you find and believe from the evidence, in this case, that the defendant Herman Ford was the duly elected and qualified marshal of the village of Risco, and if you further find and believe from the evidence that at the time he shot deceased he had a warrant for the arrest of the deceased and if you further find and believe from the evidence that at said time the deceased knew that defendant Ford was such marshal and if you further find and believe that said Ford had probable cause to believe deceased was guilty of such offense, then and in that case defendant had the right to use such force as was necessary to arrest said deceased and that any resistance of deceased to such arrest was unlawful and if defendant used only such force as was necessary to accomplish such arrest then and that case you will find defendant not guilty."

B.

"The court instructs the jury that if they find and believe from the evidence in this case that at the time of the shooting of the deceased, Braxtol Gray, the defendant was the city marshal of the town of Risco in New Madrid County, Missouri, whose duty it was to serve warrants issued by the Police Judge of said town and that the defendant was attempting to arrest deceased at the time of the shooting under said warrant and while defendant was in the discharge of his duty in attempting to make such arrest, the defendant as such officer met with resistance from the deceased by which a struggle was brought about between defendant and deceased in which struggle deceased was shot and killed, then said killing was justifiable and the right of defendant as such officer to shoot and kill deceased under such circumstances does not depend upon the principle of self defense alone, but on the necessity of defendant as such officer executing his duty.

"The Court therefore instructs the jury that if they believe from the evidence that the defendant was the city marshal of the town of Risco, Missouri, and was in the lawful discharge of his duty attempting to arrest the deceased, having a warrant for such arrest and that deceased forcibly resisted such attempted arrest and brought on a struggle between defendant and deceased and in said struggle it became necessary for defendant as such officer to shoot and kill deceased in order to overcome said resistance and effect said arrest, provided said officer used no greater force than was necessary, then said shooting and killing of deceased was justifiable, although the jury may believe defendant intentionally shot and killed defendant."

The State contends the appellant's right to kill in making the arrest was controlled by Section 3985, Revised Statutes 1929 (Mo. Stat. Ann., p. 2789), which contains three subdivisions defining justifiable homicide. This section has been in our statutes since Revised Statutes 1835, section 4, page 168. The third subdivision, here involved, has remained unchanged during all of that time. In quoting the statute below we set out each subdivision thereof in a separate paragraph, and have also italicized certain words in the second subdivision in two places. The words first italicized were added by Laws 1885, page 139; the words in the second italization appear for the first time in Revised Statutes 1855, section 4, page 559. The statute is as follows:

"Homicide shall be deemed justifiable when committed by any person in either of the following cases:

"First, in resisting any attempt to murder such person, or to commit any felony upon him or her, or in any dwelling house in which such person shall be; or,

"Second, when committed in the lawful defense of such person, or of his or her husband or wife, parent, child, brother, sister, uncle, aunt, nephew, niece, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished; or,

"Third, when necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace."

The theory of the State is that under the third subdivision of the statute a homicide committed by an arresting officer is justifiable only when he is apprehending a person for the commission of a felony; and that since the appellant was arresting the deceased on a misdemeanor charge, the subdivision does not apply, leaving to the appellant only the ordinary right of self-defense under the second subdivision of the statute. The authorities cited in support of that view are 30 C. J., sec. 196, p. 41; 42 A. L. R., p. 1203, note; State v. McGhee (1925), 308 Mo. 560, 570, 274 S.W. 70, 73(9); State v. Salts (1932), 331 Mo. 665, 673, 56 S.W.2d 21, 24(9). Another recent case along the same line is State ex rel. Kaercher v. Roth (1931), 330 Mo. 105, 110, 49 S.W.2d 109, 110.

Since the question is mainly one of statutory construction we shall defer consideration of outside authorities until we have reviewed briefly the decisions of Missouri courts. The McGhee case is the converse of this one. There, the defendant prisoner shot an officer who was attempting to arrest him for the commission of an alleged offense in the officer's presence. According to the officer's testimony the defendant made a threatening physical demonstration against him, whereupon he first shot the defendant. Then the defendant shot him. The question was as to the defendant's right of self-defense. The offense, if any, was a misdemeanor; but the decision holds the evidence was insufficient to prove any offense, and that the officer therefore had no right to make the arrest at all. The opinion cites Section 3985, supra, but wholly ignores the third subdivision thereof -- presumably on the theory of the following dictum appearing therein (we say dictum because the opinion had already held the officer was trying to arrest the defendant when he had committed no offense): "An officer is never justified in shooting one guilty of a misdemeanor to effectuate his arrest or prevent his escape." [30 C. J. 41.]

In the Salts case the defendant town marshal was serving a warrant for the arrest of an accused on a misdemeanor charge. He testified that the misdemeanant advanced toward him threateningly with a hoe drawn over his shoulder and declared he would not submit to arrest but would kill the defendant. The defendant shot and killed him. On appeal the defendant complained of the giving of this instruction: "The court instructs...