State v. Grant

• Court: Missouri Supreme Court
• Writing for the Court: SHERWOOD
• Citation: State v. Grant, 76 Mo. 236 (Mo. 1882)
• Decision Date: 31 October 1882
• Parties: THE STATE v. GRANT, Appellant.

76 Mo. 236

THE STATE

v.GRANT, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

REVERSED.

Defendant, a negro, was indicted for the murder of Patrick Jones, a policeman of Kansas City. Evidence given at the trial tended to prove that in the afternoon of the 3rd of April, 1882, sometime between five and eight o'clock, two pails of butter were stolen from the office of Adams Express Company at Kansas City, but that the fact was not discovered till the next day; that about 7:40 o'clock in the evening of the 3rd, Jones and one Miller, a witness in the case, were sitting in front of Fleming's saloon, which was from 300 to 500 yards from the express office when defendant and another negro passed them, one carrying a sack with something in it, the other a pail; that the suspicions of both Miller and Jones were aroused and Jones left Miller and followed the men; that in about two and a half minutes Miller heard a shot and running in the direction which Jones had taken found him lying near the sidewalk, dead, with his club and his pistol in his belt; that the sack and two pails of butter were lying near him; that Jones was in uniform; that it was about dark; and that defendant admitted to several witnesses that he did the shooting. Other facts that were proven are stated in the opinion.

At the request of the prosecuting attorney, the court gave the following instructions:

1. If you find from the evidence that, on or about the 3rd day of April, 1882, at the county of Jackson, in State of Missouri, the defendant, George Grant, willfully, deliberately, premeditatedly and of his malice aforethought, shot and killed the deceased, Patrick Jones, then you will find defendant guilty of murder in the first degree.

2. The word “willfully,” as used in the foregoing instruction, means intentionally and not accidentally. “Deliberately” means in a cool state of the blood, that is, not in the heat of passion, caused by lawful provocation. ““Premeditatedly” means thought of beforehand, any length of time, however short; a moment or an instant is sufficient. “Malice” does not mean mere spite, ill-will or dislike, as we understand it in ordinary language. It is here used to denote a bad or unlawful condition of the mind; such a condition of the mind as a man is in when he intentionally commits a wrongful act; or in other words, such a condition or state of mind as indicates a heart devoid of social duty, and fatally bent on mischief.

3. That the deliberation and premeditation necessary to constitute murder in the first degree may be inferred from all the facts and circumstances connected with the killing, and if they existed a moment before the killing, it is sufficient.

The court of its own motion, gave the following instructions:

1. If the deceased, Patrick Jones, was, at the time of his death, a police officer of the City of Kansas, State of Missouri, and the defendant by himself or with the assistance of another, was engaged in taking and carrying away the personal property of another, without the assent of the owner, with the intent to convert such personal property to his own use, or to the use of himself and the person assisting him, and the deceased believed that the defendant and the person assisting him were so engaged, and also believed that immediate interference on his part was necessary to prevent the accomplishment of such taking, carrying away and conversion, or to prevent the escape of the offenders, then he, the deceased, had a right, with or without a warrant, to pursue and arrest the defendant and the person with him, and to use such force (short of taking the life of the defendant, or the person assisting the defendant), as was reasonably necessary to effect such arrest.

Therefore, if the jury shall believe from the evidence that the deceased, as such officer, was proceeding under circumstances such as are enumerated, and in a lawful manner, as defined in this instruction, to arrest the defendant and the person with him, or either of them, and that while he, the deceased, was so engaged, the defendant, in order to prevent such arrest, willfully, deliberately, premeditatedly and of his malice aforethought, shot and killed the deceased, they will find the defendant guilty of murder in the first degree.

2. Although the jury may believe from the evidence that the deceased, Patrick Jones, was a police officer of the City of Kansas, yet if they also believe from the evidence that he attempted to arrest the defendant under circumstances not authorizing him to attempt such arrest, as specified in these instructions, or that in attempting such arrest he used force more than was reasonably necessary, as defined in these instructions, and the defendant had reasonable cause, from the conduct of the deceased at the time, to apprehend a design on his part to take his, defendant's life, and had reasonable cause to believe that there was immediate danger of such design being accomplished by the deceased, and that he, the defendant, shot and killed the deceased to prevent the accomplishment of such design, the jury will find the defendant not guilty, because the killing of deceased, under such circumstances, is justifiable in law, because done in self-defense.

3. If the jury shall find that the killing of officer Jones (if done by the defendant) was not justifiable on the ground of self-defense, but shall find that the circumstances at the time of the attempted arrest were not such as to authorize him, said Jones, according to the law as given to you in these instructions, to attempt to arrest the defendant, and that the defendant shot and killed the deceased while he, the deceased, was so endeavoring wrongfully to arrest him, such shooting and killing constitute manslaughter in the fourth degree only, the punishment for which is imprisonment in the penitentiary for two years, or imprisonment in the county jail not less than six months, or a fine not less than $500, or both a fine not less than $100 and imprisonment in the county jail not less than three months.

4. For the purpose of determining the right of officer Jones to attempt the arrest of defendant, it is not at all necessary that the jury should find that said Jones saw the defendant perform the specific act of taking. It is sufficient if the defendant was found engaged in the perpetration of the offense, which the taking and carrying away of the personal property of another without the assent of the owner, with the intent on the part of the person so taking and carrying away to convert such personal property to his own use, constitutes. The court further instructs the jury that the offense which the taking and carrying away of personal property of another without the owner's assent, with the intent on the part of the taker to convert the same to his own use, is what is known in the law as larceny.

Other instructions were also given in relation to reasonable doubt, the weight of evidence, the credibility of witnesses, the presumption of innocence and the effect of statements by defendant for and against his own interest.

W. A. Harnsberger and R. H. Field for appellant.

Jones' attempt to arrest was unlawful. (1) Because he had no reasonable cause for suspecting these parties guilty of a felony. Bare suspicion will not justify an arrest without warrant. It must be one that is based upon probable cause and one that would be reasonable to the mind of an ordinarily prudent person. Foster's Crown Law, pp. 320, 321, § 23; 1 Wharton Crim. Law, §§ 429, 430; Wharton Crim. Plead. and Prac., §§ 8, 9; Shanley v. Wells, 71 Ill. 78; Mathews v. Biddulph, 3 M. & G. 390; Findlay v. Pruitt, 9 Port. (Ala.) 195; Hall v. Hawkins, 5 Humph. 357; Somerville v. Richards, 37 Mich. 299; Skeen v. Monkeimer, 21 Ind. 1. (2) Because he knew of no offense that they had committed. The theft of the pails of butter had not then been discovered. (3) Because an arrest for a past misdemeanor not committed in his presence would not be authorized without a warrant even if there was reasonable cause for suspecting them of that offense. Comm. v. Carey, 12 Cush. 246; Comm. v. McLaughlin, 12 Cush. 615; State v. Crocker, 1 Del. Crim. Rep. 434; Shanley v. Wells, 71 Ill. 78; Boyleston v. Kerr, 2 Daly (N. Y.) 220; Pesterfield v. Vickers, 3 Cold. (Tenn.) 205; Mathews v. Biddulph, 3 M. & G. 390; 1 Bishop Crim. Proced., §§ 624, 640; Bowditch v. Belchin, 5 Exch. 378. There was no evidence as to whether the butter was worth more or less than $30. Hence the supposed offense may have been a misdemeanor for all that was shown by the State, and it devolved upon the State to show that it was a felony. Mathews v. Biddulph, 3 M. & G. 390; Griffin v. Coleman, 4 H. & N. 265; People v. Muldoon, 2 Parker Cr. Rep. 13; State v. Wingo, 66 Mo. 181. If it was a misdemeanor the offense was complete before the men passed Jones. It was complete when the butter was taken out of the express office. 1 Wharton Crim. Law, §§ 923 to 927; 2 Bishop Crim. Law, §§ 794, 795; Lacy v. State, 7 Tex. Ct. App. 403; People v. Pratt, 2 Hun 300; People v. Gordon, 40 Mich. 716. (4) Because he was a policeman and as such he had no authority that was shown in evidence to arrest under any circumstances without a warrant. Dillon on Munic. Corp., (3 Ed.) §§ 210, 211; State v. Belk, 76 N. C. 10; Newark v. Murphy, 40 N. J. L. 145; State v. Underwood, 75 Mo. 230; Lacy v. State, 7 Tex. Ct. App. 403; Alford v. State, 8 Tex. Ct. App. 545. (5) Because as a policeman of the City of Kansas, under the acts creating the Board of Police Commissioners, he had no authority to make an arrest in any case except under the supervision and direction of the commissioners, and nothing of that kind appeared in the evidence. Sess. Acts 1874, p. 329, § 5; Ib., p. 330, § 10; Ib., p. 333, § 16; Sess. Acts 1875, p. 195, § 3. (6) Because it was an attempt to unreasonably seize the liberty of these persons when he had no charge...