State v. Green

Decision Date31 October 1877
PartiesSTATE v. GREEN, Appellant.
CourtMissouri Supreme Court


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

Blake L. Woodson for appellant.

1. A defendant, when charged with a capital offense, must be furnished with a copy of the indictment; he is not bound to look beyond the certified copy, and when this states no offense, the indictment should be quashed, or a correct copy furnished. 2 Wag. Stat, p. 1095, Sec. 2.

2. The State should have been compelled to elect counts for trial, and should not have been allowed to wait until the evidence was in, and then ask instructions on the second count alone.

3. The list of jurors should have been furnished defendant at least forty-eight hours before trial; but of the forty-eight hours allowed in this case, one whole day was a legal holiday.

4. 1 Wag. Stat., p. 479, Sec. 20, provides a special punishment for resisting an officer, but no such penalty is provided for killing an officer. 1 Wag. Stat., p. 445, Sec. 1, defines murder in the first degree. The third instruction gives another definition, and withdraws entirely from the jury the statutory requirements of “willful, deliberate and premeditated killing,” and substitutes therefor the fact of deceased being a legal officer, having a legal warrant, which he reads or exhibits with information of the substance of its contents, and the further fact that he was proceeding in a quiet and lawful manner to arrest the defendant. It dispenses with all knowledge on the part of defendant of the officer's official character, which was required even at common law. Roberts v. State, 14 Mo. 147; Kelly Cr. L. & P., § 492; Commonwealth v. Drew, 4 Mass. 391; Logue v. Commonwealth, 2 Wright 265; Rafferty v. People, 69 Ill. 111; State v. Daubert, 42 Mo. 242; State v. Smith, 53 Mo. 267.

5. The first and second instructions asked by the defendant, should have been given. The whole transaction took place in three or four minutes. There were no preconcerted threats nor plan, on the part of the defendant, to resist or kill the officer; he did not know the officer when he came in, nor the officer him. Under such circumstances the court should have left the jury to say whether the killing was intentional, malicious, and without just cause, constituting murder in the second degree, or all this, and willful, deliberate and premeditated, in addition. State v. Oliver, 2 Houst. (Del.) 585; State v. Lane, 64 Mo. 310; Roberts v. State, 14 Mo. 147; Commonwealth v. Drew, 4 Mass. 391.

6. The third instruction asked by defendant should have been given. Kelly Cr. L. & P., § 492; Bishop Cr. Pro., Ed. 1866, §§ 647-8-9; 32 N. Y. 509; Logue v. Commonwealth, 2 Wright (Penn.) 265; State v. Kirby, 2 Iredell 201; Rafferty v. People, 69 Ill. 111.

7. Also, the 4th, 5th, 6th, 7th, and 8th instructions. Bishop's Cr. Law, (4th Ed.) §§ 383-4; Rex v. Geo. Hood, British Cr. Cas. 281; S. C., 1 Moody 281; Griswold v. Sedgwick, 1 Wend. 126; Griswold v. Sedgwick, 6 Cow. 456; Gurnsey v. Lovell, 9 Wend. 3I9; 2 N. H. 318; 1 Bald. 239; 3 Harrington 416; Shorter's case, 2 Comst. (N. Y.) 193.

8. The indictment was returned into court by a grand jury of twelve men, March 2nd, 1877, by virtue of the constitution of 1875, Art. 2, Sec. 28. This constitutional provision was in conflict with the law then existing, and required legislation to enforce the same, which was afterwards had in 1877. Sess. acts of 1877, p. 278; Const. of Mo. Sched., Sec 1; Sec. 12, p. 14; Han. & St. Joe R. R. Co. v. State Board, &c., 64 Mo. 304, 294; St. Joe & Den. City R. R. Co. v. Buchanan Co. Ct., 39 Mo. 489, 485; 15 Peters 449; 3 Wheat. 336.

9. The warrant under which Hughes attempted to arrest defendant was not for a felony, as that term is used in Sec. 18, p. 479, Wag. Stat. State v. Thompson, 30 Mo. 470.

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

1. The motion to quash was properly overruled, because not directed to the original indictment, but to an incorrect copy. As he did not demand a correct copy, he is presumed to have waived the same. State v. Jackson, 12 La. An. 679; Lisle v. State, 6 Mo. 426.

2. The motion to compel an election by the State of the count upon which it would proceed to trial was properly overruled. State v. Turner, 63 Mo. 436; State v. Sutton, 64 Mo. 107; State v. Porter, 26 Mo. 201.

3. The rule is well settled that, when one of the intervening days is a holiday, such day is counted in computing statute time. King v. Dowdall, 2 Sandf. 131; Ex parte Dodge, 7 Cowen 147; Easton v. Chamberlain, 3 How. Pr. 412; Taylor v. Corbiere, 8 How. Pr. 385; Anderson v. Baughman, 6 Mich. 298; Goswiler's estate, 3 Penn. 200; Franklin v. Holden, 7 R. I. 215.

4. At common law, the killing an officer by one whom he is attempting to arrest under a legal warrant, is murder. 1 East P. C. 309; 1 Hale, P. C. 464 and note, 465, 457; 2 Hale, P. C. 118; State v. Will, 1 Dev. & Bat. 121; Boyd v. State, 17 Ga. 194; Angell v. State, 36 Tex. 542; State v. Oliver, 2 Houst. (Del.) 585, 604. Under our statute a homicide committed in the perpetration or attempt to perpetrate any felony, is murder in the first degree. Wag. Stat., p. 445, Sec. 1. It is a felony to resist an officer in the service of a warrant in any case of felony. Wag. Stat., p. 479, Sec. 18. Assault with intent to kill, is a felony. Wag. Stat., Secs. 29, 32, 33, pp. 449, 450. So that, clearly, this murder was committed in the attempt to perpetrate a felony, and was, therefore, murder in the first degree. The defendant was resisting an arrest for felony, which was in itself a felony, and the law presumes the necessary malice from the simple act of killing. State v. Foster, 61 Mo. 549; State v. Lane, 64 Mo. 319; State v. Wieners, 66 Mo. 13; Brooks v. Com.,61 Pa. St. 352.

5. It was not necessary to allege in the indictment that Hughes was a deputy marshal, and had a legal warrant, etc. State v. Roberts, 15 Mo. 36; Boyd v. State, 17 Ga. 194; 3 Chitty Crim. Law, 172; Mackalley's case, 9 Coke 111, 65.

6. The production by Hughes of the warrant to arrest the defendant was sufficient notice to him of the fact that he was deputy marshal of Jackson county; as such, he was empowered by the statute to perform any of the duties prescribed by law for the marshal Acts of 1871, p. 87, § 10; Whart. on Hom., §§ 240, 252, State v. Weed, 1 Foster (N. H.) 262; Tom v. State, 8 Humph. 86; State v. Oliver, 2 Houst. (Del.) 585; People v. Pool, 27 Cal. 572; Roscoe's Crim. Ev., 755, 760; 1 Russ. on Crimes, 627; 1 Hale's P. C., 461, 578; Rex v. Curtis, Foster 135; Arnold v. Steeves, 10 Wend. 514; State v. Caldwell, 2 Tyler (Vt.) 212; Com. v. Cooley, 6 Gray 350; Drennan v. People, 10 Mich. 169, 183; State v. Wetherall, 5 Harring. (Del.) 487; Johnson v. State, 30 Ga. 426; 2 Hawk. P. C., Ch. 13, § 28, p. 137.

7. If Hughes designated Green by any name, and told him that he had a warrant for him, it was Green's duty to submit to the arrest, and then demand to be discharged, if the warrant was in fact for Smith; if he chose to resist the arrest on that ground, he did so at his peril. U. S. v. Travers, 2 Wheat. C. C. 510; State v. Jones, 16 Mo. 388.

8. A grand jury composed of twelve men, was a legal grand jury. Art. 2, Sec. 28, Const. of 1875. This section was self executive, and required no legislation to enforce it. State v. Dearing, 65 Mo. 530.


At the February term, 1877, of the criminal court of Jackson county, at Independence, the defendant was indicted jointly with one Frank Miller, for murder in the first degree for the killing of Henry H. Hughes. The indictment contained three counts, the first of which charged Green and Miller jointly as principals; the second charged Green as principal and Miller as being present, aiding, abetting, &c. and the third charged Miller as principal and Green as being present, &c. The defendants were duly arraigned, and each pleaded not guilty, and on motion of each, a severance was ordered. On application of the defendant, the venue of the cause, as to him, was changed to the criminal court at Kansas City. He afterwards filed a motion to quash the indictment, attaching to his motion, what purported to be a copy of said indictment which was furnished him, and alleging that said copy charged no offense, and therefore the original should be quashed. This motion was by the court overruled. He thereupon filed his motion to compel the State to elect upon which count it would proceed, which the court overruled. The empanneling of a jury was then proceeded with, and, on November 28th, a list thereof was delivered to defendant, and the cause was postponed till November 30th, on which day the defendant objected to announcing his challenges, for the reason that, as one of the days intervening since he had been furnished with the list was Thanksgiving day, he had not been allowed his full forty-eight hours, which objection the court overruled. The evidence on the part of the State showed that the deceased was duly appointed deputy marshal of Jackson county by the marshal thereof, and his appointment duly confirmed and recorded, and the oath administered; that, on the 6th day of February, 1877, the following warrant was delivered to him by the marshal of Jackson county:

Warrant of Arrest.

The State of Missouri to the Marshal of Jackson county, Greeting:

Whereas, Isaac Gardner, of the county of Jackson, hath this day given information upon oath to me, J. C. Ranson, a justice of the peace within and for said county of Jackson, that, on the 4th day of February last past, at the county aforesaid, one George Tarwater, one Richard Green and one Frank Miller, did assault and shoot at one Henry Mensing and Isaac Gardiner, from pistols loaded with powder and bullets, with intent to kill them, the said Henry Mensing and Isaac Gardiner; these are therefore to command you forthwith to apprehend the said George Tarwater, Richard Green and Frank Miller, and bring them before me to answer...

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