State v. Havens
| Decision Date | 07 February 1944 |
| Docket Number | No. 38732.,38732. |
| Citation | 177 S.W.2d 625 |
| Parties | STATE v. HAVENS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Polk County; C. H. Jackson, Judge.
Glen Havens was convicted of manslaughter, and he appeals.
Affirmed.
Lieutellus Cunningham, of Bolivar, for appellant.
Roy McKittrick, Atty. Gen., and W. O. Jackson, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
Glen Havens, Deputy City Marshal and night watch of Bolivar, has been found guilty of manslaughter in killing Charles Widener and sentenced to five years' imprisonment.
His version of the killing is that he was on duty about 1:30 o'clock in the morning when three boys drove by in a car and told him there was a drunk in Cunningham's Cafe and the cafe wanted to close up. He went to the restaurant and called the waitress to the door and inquired whether there was a drunk man there and whether he was bothering her. She told him the man was drunk but he was not bothering her although she did wish he would leave so she could close the restaurant. He waited outside and soon Charley Widener came out, got in his car and began backing away. Havens stopped him, told him he was too drunk to drive, had him get out of the car and told him he was under arrest and that he was going to take him to jail. They started up the street and across the square toward the jail, Charley in front and Havens walking just behind him. When they were in front of the Style Shop, operated by Widener's wife and their home as well, Charley whirled around and struck Havens on the side of the face causing him to catch himself on the concrete with his hands. As he was bent over Charley jumped on his back and was fighting and holding him. Havens could not get hold of his blackjack but as they scuffled he did get hold of his gun and struck Widener on the side of the head with it but it only made him fight the more. Havens' head was down between Charley's legs and he "fired two shots right out in front of me" to scare him and cause him to stop. After fighting two or three more minutes Havens says he was about played out and couldn't fight any longer and could see he was "going down" and he then told Charley to turn loose or he would have to shoot him and then he went to shooting low to stop him and the last and sixth shot did stop him. He then went to the jail and called the sheriff.
But, there are several difficulties with Havens' exonerating version of the occurrence. There was evidence adduced by the state, which if believed and found by the jury, put the matter in an altogether different light. Lee Bennett came along shortly after the shooting and asked Havens what had happened to Charley and Havens replied, "He got into it with a fellow." When asked who he said, "It was me." Bennett then asked him if he had killed him and he said, "I tried to." Almost a month after the shooting Havens told the sheriff he wanted to talk to the prosecuting attorney and when he did insisted on giving a statement of his version of the affair. The statement was substantially as he related the events when he testified and as he told it to various witnesses. His statement did show that Widener did not have a weapon of any kind. However, some of the witnesses said that Havens told them he had shot Charley twice or possibly three times. The evidence conflicted as to whether Charley was drunk or even drinking; as a fact issue it could have been found either way. The two witnesses he had spent the evening with, playing their musical instruments in Charley's place of employment, said he was neither drunk nor drinking and he had taken one of them home a short while before he was shot.
Widener was five feet seven and a half inches tall and weighed about one hundred forty pounds. Since 1927 he had been employed as a clerk in the office of the Ozark Utilities Company.
Havens' gun was a 38 Colt's Army Special which fired six shots. Those who heard the noise of the shots heard two shots and shortly several more. There were seven wounds on Charley's body and at least one witness, a doctor, testified that several of the wounds would have been disabling and would have caused Widener to turn loose if they had not knocked him down. Havens says he fired two shots to scare Widener, not intending to hit him, but, even though he did, all six shots took effect. About an inch above his umbilicus there was a rather large hole ranging upward, indicating that two bullets had entered near the same spot. There was a bullet through his groin which came out at the thigh. There was one wound through the hip making two holes where the bullet emerged. One bullet went through his leg three inches above the knee and emerged in the joint. There was a scar on his right thigh and every indication that the bullet had hit something and ricocheted in that direction. That bullet had probably struck some coins and a nail clipper in Widener's pocket. On his left temple there was a deep, triangular cut.
All these additional facts and circumstances, if found, dispel the inference of a justifiable homicide, Mo.R.S.A. § 4379, and therefore instance a killing under such circumstances as to constitute manslaughter. Mo.R.S.A. § 4382. If some of the shots would have disabled Widener and considering their number and the nature of the wounds inflicted as well as Havens' statement that he had tried to kill him, the jury could find that the shooting and killing were due to anger, resentment and sudden passion, without malice, or voluntary manslaughter. 26 Am.Jur., Sec. 44; State v. Farrell, 320 Mo. 319, 6 S.W.2d 857. They could have found that there was no real or apparent necessity to kill in order to repel the assault, even though there was provocation, and consequently that the killing was not in self-defense. 26 Am.Jur., Sec. 137; State v. Montgomery, 230 Mo. 660, 132 S. W. 232. Havens' right of self-defense is neither so great nor inclusive as his right and duty as an officer to forcibly arrest Widener or any one else resisting arrest; he may, of course, defend himself when assaulted but the force he may use in the two instances differs in degree, — it is permitted in making an arrest that he may be the aggressor and use a greater degree of force than he could justly use in self-defense. 26 Am.Jur., Sec. 233; State v Dierberger, 96 Mo. 666, 2 S.W. 286; State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; Mo.R.S.A. § 4379. But in making an arrest or in preserving the peace, as an officer, the homicide to be justifiable must have been "necessarily committed in * * * lawful ways and means." Mo. R.S.A. § 4379. As an officer he may use such force as is necessary to effect his purpose and if the offender resist him he may use such force as is necessary to effectively arrest even to injuring or killing the offender. State v. Ford, supra; State v. Dunning, 177 N.C. 559, 98 S.E. 530, 3 A. L.R. 1170; Edgin v. Talley, 169 Ark. 662, 276 S.W. 591, 42 A.L.R. 1200. But as indicated by the language of the statute, there is a limitation on the officer's right to kill in making an arrest or in repelling an assault during an arrest. The line of demarkation is that he may not use more force than was reasonably necessary to accomplish the arrest. State v. Dierberger, supra; State v. Phillips, 119 Iowa 652, 94 N.W. 229, 67 L.R.A. 292. And of the reasonable necessity the officer is not arbitrarily the judge that it was necessary for him to kill in order to secure his prisoner. The exigencies of the situation must have been such that there was a necessity for the killing and whether such a necessity existed, as a matter of fact, is a question for the jury "`to be determined from all the evidence of the case, a doubt as to the nonexistence of such necessity entitling the officer to an acquittal.'" State v. Montgomery, supra [230 Mo. 660, 132 S.W. 237].
The facts and circumstances considered in determining whether the homicide was in self-defense are also to be considered in determining whether Havens' conduct in shooting Widener as he resisted the arrest transgressed the line of reasonable necessity. There was the inconsistency of his evidence and contention to all to whom he related the occurrence that he first shot once or twice in front as they scuffled, not intending to hit Widener but to scare him, with the fact that all six shots took effect, four of them in vital parts. 30 C.J. § 435. The bullet through the leg above the knee ranged downward and came out through the knee. The ricocheted bullet struck coins in his pants pocket and went across the hip and so there is a strong probability that neither of these two shots were the first fired. Havens says the first two shots were as he was bent over with his head between Widener's legs and it is difficult to conceive of the wound through the groin except from such a position. The two other wounds were through the abdomen and while one of them may have ranged upward it is not so likely that they were from the first two shots. But, whether they were or not, the evidence was that either of these wounds was disabling and the jury could find that two of them were from the first two shots fired. His statement to Bennett that he tried to kill Widener was made under such circumstances and in such a manner that the jury could draw the inference and believe that all the shooting was not justifiable but that it was intentionally the result of passion rather than of necessity in overcoming resistance to an arrest. The additional facts and circumstances (other than the defendant's version of the occurrence) adduced by the state are of such probative force that it was for the jury to say whether he acted in self-defense or merely exerted such force as was coextensive with his duty as an officer and the homicide was therefore justifiable, as he claimed, or whether he overstepped the line of duty and necessity and was therefore guilty of manslaughter, as the state contends. State v. Dierberger, supra; State v....
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