State v. Fuller

• Decision Date: 12 November 1888
• Parties: The State v. Fuller, Appellant
• Court: Missouri Supreme Court

9 S.W. 583

96 Mo. 165

The State v. Fuller, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Affirmed.

Rathburn Travers & Rathburn for appellant.

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

The transcript discloses no ruling as to the evidence prejudicial to defendant. Errors not prejudicial will not warrant reversal. State v. O'Gorman, 68 Mo. 179. The instructions given by the court fairly and fully presented the law of the case under the evidence, and instructions asked by defendant were therefore properly refused. State v Smith, 80 Mo. 516.

Black J. Ray, J., absent.

OPINION

Black, J.

The defendant stands convicted of an assault with intent to kill, without malice aforethought, L. D. Howard, who was the deputy marshal of Ash Grove, a city of the fourth class. It appears that defendant was intoxicated, boisterous, and handled a gun which he had so carelessly as to be dangerous to persons on the streets. He defied the power of the marshal to arrest him. The marshal refrained from making an arrest for the moment, as defendant's comrades undertook to get him out of town, but defendant got into a scuffle with them, during which he had in his hand an open knife. The marshal then undertook to arrest him for a violation of the ordinances of the city, whereupon he drew his knife in resistance of the arrest. The marshal hit him once with a pistol, and was about to strike the second time, when the pistol fell to the ground. Defendant picked it up and shot at the marshal twice; the last shot was fired while the marshal was on the retreat, the ball taking effect in his arm. There is some evidence tending to show that the officer used more force than was necessary to accomplish the arrest.

Ash Grove was incorporated by an order of the county court made in 1871, under chapter 41, title 15, General Statutes of 1865. In 1884 the county court made an order, on the petition of the inhabitants, declaring the town a city of the fourth class. This order purports to be made under article 1, chapter 89, Revised Statutes 1879.

1. The first point made on the trial is, that since Ash Grove was incorporated in 1871 as a town, the county court had no power, under the general law relating to cities and towns, to declare it a city of the fourth class; and that the change from a town to a city could only be made by a vote of the inhabitants. From all this it is contended that Howard was not an officer at all. Concede that a change from a town to a city should have been by a vote and not an order of the county court, still that does not aid this defendant. The city is acting as a city of the fourth class, under color of law, and its right to do so is not questioned by the state. On the contrary the state recognizes its right to be and to exercise the powers of a city of the fourth class; and its...