State v. Julian

• Decision Date: 22 March 1887
• Parties: STATE OF MISSOURI, Respondent, v. SAMUEL JULIAN, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 133

STATE OF MISSOURI, Respondent, v. SAMUEL JULIAN, Appellant.

Court of Appeals of Missouri, St. Louis.

March 22, 1887

APPEAL from the Webster County Circuit Court, W. J. WALLACE, Judge.

Affirmed.

JOHN O'DAY and E. D. KENNA, with JOSEPH WISBY, for the appellant: A private person is not only justified, but obliged to do his best to bring felons to justice, and while attempting to do so, he is in the discharge of a duty required of him by the law. The law is their warrant, and they may not improperly be considered as persons engaged in the public service, and for the advancement of justice though without any special appointment, and being so considered, they are under the same protection as the ordinary ministers of justice. 1 Russell on Crimes [7 Am Ed.] chap. 1, sec. 3, p. 534; Wharton on Homicide [2 Ed.] secs. 260, 261; Brooks v. Commonwealth, 61 Pa.St 352; 4 Blackstone 293. The act itself does not make a man guilty unless his intention was so. Broom's Leg. Max. (2 Ed.) 190-226, 232, 239, 275, 263; Bishop on Crim. Law (3 Ed.) secs. 370, 381, 383; The State v. Reilly, 4 Mo.App. 397; The State v. Newkirk, 49 Mo. 85.

SAMUEL DICKEY, for the respondent.

OPINION

LEWIS, P. J.

The defendant was convicted, under an indictment, for carrying, concealed upon his person, a deadly and dangerous weapon, in violation of Revised Statutes, section 1274.

The testimony tended to show that one Hailey, reputed to be a " bad, desperate, and dangerous man," had committed a felonious assault near the locality of the alleged offence here charged, and was a fugitive, supposed to be in hiding in the same vicinity; that a justice of the peace issued a warrant for his arrest, but failed to find the constable by whom the writ should have been executed, whereupon he endorsed on the paper an authority to one Marlin, to act as special constable in making the arrest; that Marlin summoned to his aid a number of citizens, including the defendant, and this posse kept up the search, without effect, for several days. The defendant and some others of the posse were directed by Marlin to attend a dancing party at the house of James Armigois, in the prosecution of their search for Hailey, or for any tidings of him. While the defendant was there engaged in dancing, a pistol dropped from his person, and was picked up by him and replaced in his hip pocket, where it was concealed.

That a pistol carried upon the person for the purposes, and from the motives entertained by the defendant, in this case, is a deadly or dangerous weapon, within the meaning of the statute, is not open to question. The State v. Larkin, 24 Mo.App. 410. The defence relied upon is, that the defendant, in undertaking to aid in the arrest of a felon, was in performance of a public duty; that, considering the character of the person to be arrested, and other circumstances, the weapon was a necessary accessory to any hope of success in the undertaking, and the act of the defendant was, therefore, within recognized exceptions, which divested it of criminality.

The chief reliance of the defence, as to this point, is founded on the common law rule, which makes it the duty of every citizen to arrest, or aid in the arrest, of every felon. In so doing, he is considered, for the time, as engaged in the public service, and entitled to all the protection afforded to the regularly appointed ministers of justice. Wharton on Homicide, sects. 260, 261. The common law, however, never prohibited the carrying of dangerous or deadly weapons, concealed, or otherwise; and we have, therefore, no historical authority for assuming that, if such a prohibition had existed, the common law courts would have justified a violation of it, on the ground that the public duty of the citizen, or subject, might be the more easily, or more certainly, performed. Such is the sort of justification required for the defence in the present case, if we admit that the citizen's public duty remains as at common law. To sustain this defence, we must either find it lawful to violate a special law in the doing of a common public service, or else we must find in the special law itself some exception in favor of the same public service. The first alternative is, of course, inadmissible. As to the second, when we look for an exception to a general prohibition, we must seek that exception in the same authority which utters the prohibition. An exception to a statutory rule must be found in the force of statutory law, and can not be imported from the common law, in derogation of the statute. Whatever, then, might be the common law duties or privileges of private citizens, with regard to the arresting of felons, we must find in our statutory law, and nowhere else, the exceptional provision, which will excuse the present defendant's infraction of the law against the carrying of a concealed, dangerous weapon.

The Revised Statutes provide:

" Sect. 1274. If any person shall carry concealed, upon or about his person, any deadly or dangerous weapon, * * * he shall, upon conviction, be punished," etc.

" Sec. 1275. The next preceding section shall not apply to police officers, nor to any officer or person whose duty it is to execute process or warrants, or to suppress breaches of the peace, or make arrests, nor to persons moving or traveling peaceably through this state, and it shall be a good defence to the charge of carrying such weapon, if the defendant shall show that he has been threatened with great bodily harm, or had good reason to carry the same in the necessary defence of his person, home, or property."

The defendant was not a police officer, nor an officer of any sort, within the meaning of the statute. Was he a " person" whose duty it was to make an arrest? The exception implied in this clause can not refer to the common law duty already mentioned, because that would include every citizen in the state, and leave no one upon whom the prohibitory law could operate. Felons are at large in all times and seasons, and no day passes upon which any person might not volunteer as a felon hunter, and wear concealed weapons with impunity. The only escape left for the defendant, under this section of the statute, lies, if anywhere, in the supposed authority derived from his position as one of a posse summoned by the special constable appointed by the justice. But this supposed authority also fails. Justices of the peace have authority to appoint any private person, properly qualified, for the service of process in a civil case; or upon information for a misdemeanor, but not in cases of warrants for felonies. The justice's appointment of Marlin to execute the warrant was nugatory, and conferred no official authority upon him, or upon any one whom he called to his assistance. This disposes of every exception in the section quoted that can be supposed to apply to the case, and yet leaves the defendant without lawful justification of the act charged upon him.

Counsel for the defendant make an undeniably impressive appeal in his behalf, on the ground that his act was the offspring of meritorious motives, and that he was clearly innocent of any intention to commit a crime. The entire absence of criminal intent, as this is understood in the law, is generally sufficient to acquit, but, as popularly understood, it presents itself in various phases. A man may be honestly of the opinion that a particular act, which the law forbids, ought, for high moral reasons, not to be forbidden. He may, therefore, be equally honest in the belief that there is no real criminality in doing the act. But this will not excuse him in the law. A man may do a forbidden act, honestly believing that he is doing no wrong, from the fact that he is really ignorant of the prohibitory enactment. But this sort of innocent intent will be of quite as little service in his defence, since it is presumed always, that every man knows the law, at least so as to avoid its infraction. It is only when the act done is not intended to be the act which the law in fact forbids, that innocence of intent will furnish a sufficient defence. The State v. Reilly, 4 Mo.App. 392. If the act which is done, and which at the same time is the act intended to be done, be forbidden by law, then the doer is guilty of offence, whether he, in fact, knew of the prohibitory law, or not, and whether or not he believed himself to be doing that which was really meritorious. Such is the case presented by this record. The defendant did, and at the same time intended to do, an act which is specifically forbidden by statute law. We can not find that there was any error in the judgment upon his conviction.

The judgment is, therefore, affirmed, with the concurrence of Rombauer, J.; Thompson J., dissents.

THOMPSON J., delivered a dissenting opinion.

I. It is a settled rule of the common law that a private person is justified in making an arrest without warrant, where (1) a felony has actually been committed by some one, and (2) the circumstances are such that a reasonable person, acting without passion or prejudice, would fairly suspect the person arrested of being the person who committed it. Allen v Wright, 8 Carr. and P. 522; The State v. Holmes, 48 N.H. 377; Reuck v. McGregor, 32 N.J. Law, 70, 74; Burns v. Erben, 40 N.Y. 463, 466; The State v. Bryant, 65 N.C. 327; Brooks v. Commonwealth, 61 Pa.St. 352, 358; Samuel v. Payne, Doug. 345; West v. Baxendale, 9 Com. Bench, 141; Holley v. Mix, 3 Wend. 350; Wakely v. Hart, 6 Binn. 316; Commonwealth v. Carey, 12 Cush. 246, 221; 4...