State v. Morgan

• Decision Date: 04 June 1900
• Citation: 61 P. 527,22 Utah 162
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, RESPONDENT, v. JAMES MORGAN, APPELLANT

61 P. 527

22 Utah 162

THE STATE OF UTAH, RESPONDENT, v. JAMES MORGAN, APPELLANT

Supreme Court of Utah

June 4, 1900

Appeal from the First District Court of Box Elder County. Hon Charles H. Hart, Judge.

Defendant was prosecuted for and convicted of the crime of murder in the first degree and from the judgment entered on conviction appealed to this court.

Affirmed.

R. H Jones, Esq., for appellant.

Hon. A C. Bishop, Attorney Gen'l, for the State.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

The defendant in this case was charged and convicted of murder in the first degree. The record shows that shortly after nine o'clock on the evening of the 29th of April, 1899, Fred Hanson started from Brigham City, Box Elder County, to return to his home located about one mile distant. It was a dark night. At the outskirts of the city Hanson was met by two men afterwards known as the defendant James Morgan and his brother who was called Archie Majors. These two men drew their revolvers on Hanson, ordered him to throw up his hands and say nothing or they would kill him; he did so and was ordered to come with them, their revolvers being placed at his head. Hanson was compelled to go with the hold-ups for about 75 yards into an unfrequented spot, and there he was compelled to kneel down.

The hold-ups then tied his hands behind his back, rifled his pockets and took from him a silverware sample outfit, a pocket book, a purse, a pocket knife, cuff and collar buttons, watch and two quarts of milk, and other property, and also took his shoes and stockings off his feet. They then tied his feet, drank the milk and laughed over it. Hanson's necktie was then taken off, stuffed into his mouth, his handkerchief tied around his mouth, and he was told if he uttered an outcry they would come back and kill him. The hold-ups then left him on the ground bound hand and foot. Sometime afterwards Hanson succeeded in releasing himself from his bonds and notified Sheriff Gordon and Deputy Sheriff Thompson of the outrage. These parties with Constable Wells started in pursuit of the offenders. The hold-ups were discovered near Hot Springs, and were ordered to halt, but they refused to halt and told the officers to go back, and then went into the mountains. The officers fired some shots over the heads of the pursued men to stop them, but the fire was returned by the two men, and twenty-five shots were then exchanged between the fugitives and officers and the firing continued until the cartridges of the latter were exhausted. The officers then telephoned to officers at Ogden to come to their assistance. Sheriff Layne of Weber county and his deputies Joseph Belknap and Joseph Bailey, and also Captain William Brown of the Ogden police force at once responded, and arrived at the scene by day-light next morning. Sheriff Gordon of Box Elder county at once advised the Weber county officers and Brown in detail of the robbery, and of their encounter with the robbers. All these parties then separated into groups of two and three and started in pursuit of the robbers.

About 2 p. m. of April 30th, Sheriff Gordon, Belknap and Brown encountered defendant Morgan and Majors on the mountain side, and commanded them to halt; the command was refused; the officers gave pursuit, and when within 75 yards of the fugitives three shots were fired over the heads of the fugitives, and they were again commanded to halt. The fugitives returned the fire upon the officers. The officers then shot at the fugitives and Majors was killed. Almost immediately after Majors was shot the defendant Morgan shot and killed Captain Brown.

The testimony shows that after Majors was shot and killed the defendant took deliberate aim and shot and killed Brown. The defendant then dropped behind a rock, and upon being commanded, held up his hands and was captured.

Deputy sheriff Belknap of Weber county testified to what transpired. He says, in substance, that after following the robbers for some time with Brown and Gordon, he discovered them 200 yards away and hallooed at them and said "stop boys, come back and give up," but that they did not stop; that he hallooed two or three times loud enough to be heard; that they kept on running; that they ran after them for about a half a mile; that he saw each robber have a revolver; that he hallooed at them again to stop, that they did not want to hurt them; that it was "nothing but a hold-up; to stop and come back and give up;" that at this time they were 80 yards away; that the robbers then started to whirl around towards us with their guns in their hands; that all three of the pursuers then shot at the fugitives; that defendant Morgan pointed his pistol at Brown, who was 15 feet to one side of the other officers, and fired; that he fired as he turned around facing the officers; that the defendant then took deliberate aim at Brown and shot; that the shot struck Brown and killed him; that this shot was fired a second or two after Majors was shot; that it all happened in about five seconds.

Sheriff Gordon gave testimony to the same effect.

After his arrest the defendant stated to Sheriff Gordon that he heard them call to stop before they shot, but says, "we thought we could get into the brush or behind the rocks, where we could hold our own and stand you off."

The property stolen from Hanson on the evening before was mostly found in possession of the defendant and Majors at the time, and the balance was found soon after where the first encounter took place. The shoes taken off Hanson's feet the night before, were found on the feet of defendant at the time of his capture.

The information charged the defendant with the murder of William Brown, and he was found guilty of murder in the first degree. Upon his election he was sentenced to be shot. A motion for a new trial was made and denied. From the judgment of conviction this appeal was taken.

The appellant contends that under the facts, as shown, no motive or malice is proved on the part of the defendant; that the act was committed under great provocation and in the heat of passion when pursued by the officers, and after they had fired the first shot; that the crime committed did not exceed manslaughter or justifiable homicide, or at most murder in the second degree; that the verdict of guilty in the first degree was erroneous and not warranted by the evidence; that William Brown was not a resident of Box Elder county, where the crime was committed, and was a private person not authorized to make an arrest.

Sec. 4638 R. S. 1898, provides that a private person may arrest another: "2d. When the person arrested has committed a felony, although not in his presence; 3d. When a felony has been committed and he has reasonable cause to believe the person arrested to have committed it.

The testimony clearly shows that on the night previous to the murder, the defendant committed a felony by robbing Hanson of his property and gagging and tying him hand and foot. These facts were communicated to all the officers, including Brown, by Hanson and Sheriff Gordon, and they were all requested to assist in the capture of the bandits. It is clear that a felony had been committed under Sec. 4175 R. S. 1898, and that Brown and the officers from Weber county and the sheriff's posse had reasonable cause to believe that the persons they were attempting to arrest had just committed it, and were fleeing to escape arrest. It follows that Brown and the officers with him composing the sheriff's posse, even though acting as private citizens and non-residents of the county, had a right, under the circumstances shown, to follow and capture the defendant, using sufficient force to accomplish such arrest. People v. Coughlin, 13 Utah 58, 44 P. 94; 1 Bish. New Crim. Proc. Sec. 168; People v. Pool, 27 Cal. 572; Sec. 4642 R. S. 1898.

Whether the defendant was properly convicted of murder in the first degree depends upon the statute and the testimony.

Sec. 4161 R. S. 1898, reads as follows:

"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by an act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life,--is murder in the first degree. Any other homicide committed under such circumstances as would have constituted murder at common law, is murder in the second degree."

The defendant and his companion had committed a felony, and Brown and the sheriff and others were lawfully in hot pursuit. The officers had commanded the fleeing parties to halt; they had refused, and notified the posse not to follow them. Soon after a second command was given to the offenders to surrender, and the command was disobeyed. Shots were then fired and returned by the bandits. Many of these return shots struck and raised the dust near the officers. Finally the defendant took deliberate aim and shot and killed Brown. The killing was not perpetrated by poison or lying in wait, but this is not necessary in order to constitute murder in the first degree. Any other kind of willful deliberate, malicious and premeditated killing is sufficient to constitute the higher grade of crime under the statute. To fall within the first degree the...