State v. Nolan

• Citation: 192 S.W.2d 1016,354 Mo. 980
• Decision Date: 11 March 1946
• Docket Number: 39555
• Parties: State v. Neil Edward Nolan, Appellant
• Court: United States State Supreme Court of Missouri

192 S.W.2d 1016

354 Mo. 980

State v. Neil Edward Nolan, Appellant

No. 39555

Supreme Court of Missouri

March 11, 1946

Appeal from Buchanan Circuit Court; Hon. Maurice Hoffman Judge.

Affirmed.

Lewis F. Randolph for appellant.

(1) The State did not make a proper case for submission to the jury of either second degree murder or manslaughter, because (a) Officer Mead had no right to shoot at the defendant; (b) the officer was committing a felony upon the defendant in doing so; (c) the defendant under the circumstances had the right to defend himself against the officer's attempt to shoot him, hence the homicide was justifiable. Sec. 4379, R.S 1939; State v. McGehee, 308 Mo. 560; McKeon v Natl. Casualty Co., 216 Mo.App. l.c. 523; State v. Burnett, 188 S.W.2d l.c. 53. (2) The officer, having no warrant for the defendant's arrest, or knowledge or suspicion that he had committed a crime, had no legal right to arrest the defendant; a fortiori, shoot him. State v. McGehee, supra; Sec. 4379, R.S. 1939; McKeon v. Natl. Casualty Co., 308 Mo. l.c. 523; State v. Jordan, 306 Mo. l.c. 23; State v. Burnett, 188 S.W.2d l.c. 53. (3) "Knowledge acquired by an officer subsequent to arrest, although it verifies the officer's suspicion, could not relate back and legalize the arrest." State v. McBride, 37 S.W.2d l.c. 425. (4) Defendant's requests for a directed verdict -- Instruction X, at the close of State's case, and Instruction Y, at the close of all the evidence -- should have been sustained, for the reasons and upon the authorities stated under Points (1) and (2), supra. (5) Defendant's requested and refused Instruction Z -- telling jury that Officer Mead had no legal right to shoot at the defendant and that the officer's act in shooting was unlawful, and that defendant had a legal right to resist the officer's attempt to shoot him -- should have been given, for the reasons and upon the authorities stated under Points (1) and (2), supra. (6) The court erred in giving Instruction 5 -- murder in second degree -- because there was no evidence to support the instruction. Same authorities Point (1). (7) The court erred in giving Instruction 6 manslaughter -- because there was no evidence to support the instruction. Same authorities Point (2). (8) The court erred in giving Instruction 8, because it submits to the jury as a controversial question, whether or not, the defendant had good reason to believe that Officer Mead was about to inflict bodily injury upon him, when all, and the only evidence in the case, showed that the officer had already inflicted great bodily injury upon the defendant, and the defendant did so believe and know when he shot. The jury were therefore given a roving commission to speculate upon a phrase of the evidence about which there was no controversy. (9) Said instruction took away from the defendant the right of self-defense if he was resisting arrest when there was no evidence in the case to show that Officer Mead or any of the other officers attempted to arrest him, either lawfully or otherwise. (10) Furthermore said instruction submits to the jury whether or not the defendant was resisting a lawful arrest, when as a matter of fact, the evidence showed that the arrest was not lawful, and that all the defendant was doing was running to get away from the officers. There is a difference between flight and a resistance to arrest by force. (11) Instruction 9 is erroneous and misdirects the jury, because it submits to the jury that he, the officer, had a right "to use such force as he, the officer, may reasonably believe to be necessary to accomplish the arrest." This instruction made the officer the sole and final judge of the amount of force that was necessary. Whether there is such a necessity is a question of fact for the jury. State v. Havens, 177 S.W.2d l.c. 628; State v. Montgomery, 230 Mo. l.c. 675. (12) Instruction 9 further misdirects the jury and is erroneous, because it submits to the jury whether or not the officer had reasonable cause to believe and did believe that defendant had broken into the B. and M. Tavern, when there was no evidence in the case to show that the officer did believe or had any cause to believe that the defendant had broken into the said tavern. The instruction gave the jury a roving commission to speculate upon a matter concerning which there was no evidence to support. The evidence was uncontradicted, that the officers had no knowledge or suspicion that defendant had broken into the tavern. State v. Jordan, 306 Mo. l.c. 23. (13) The instruction does not define "reasonable cause to believe" on the part of the officer. (14) Instruction 11 misdirects the jury and is erroneous, because it again submits to the jury the question of whether or not Officer Mead had reasonable cause to believe the defendant guilty of a felony, when there was no evidence in the case that Officer Mead, or any other of the officers, suspected or had reasonable grounds to suspect, that defendant had committed a felony. The instruction therefore gave the jury a roving commission to speculate upon a matter not supported by any evidence in the case. (15) The instruction does not define "reasonable cause to believe." (16) The court erred in giving Instruction 12, because said instruction again submits to the jury whether or not Officer Mead had reasonable cause to believe the defendant guilty of a felony, when there is no evidence in the case to support that issue, nor is "reasonable cause to believe" defined. (17) The instruction is also erroneous and misdirects the jury because it submits to the jury whether or not defendant knew that Officer Mead intended to place him under arrest for breaking into the B. and M. Tavern, when there is no evidence in the case that the defendant had any such knowledge, or that the officer had any such intentions. (18) The instruction is further erroneous because it submits to the jury whether or not defendant shot in order to avoid arrest, when there was no evidence in the case to show that the defendant shot to avoid arrest. The evidence showed he shot to stop the officer from shooting at him. Unless the person sought to be arrested resists with force the arrest, or unless the officer has a warrant for arrest for a felony, or unless the officer has knowledge that the person has committed a felony, he has no right to shoot simply because the person he attempts to arrest flees. State v. Ford, 130 S.W.2d 635; McKeon v. Natl. Casualty Co., 216 Mo.App. l.c. 524; State v. Jordan, 306 Mo. l.c. 25. (19) Instructions 9, 11, and 12 all submit to the jury the question of whether or not Officer Mead had "reasonable cause to believe" that the defendant had committed a felony; but in none of the instructions was any definition given of the expression "reasonable cause to believe." "Reasonable cause to believe" means, "actual or historical knowledge of the arresting official that the person has committed a crime." McKeon v. Natl. Casualty Co., 216 Mo.App. l.c. 524; State v. Grant, 79 Mo. l.c. 134, cited and quoted in McKeon v. Natl. Casualty Co., supra. (20) Defendant's motion to discharge the panel during voir dire examination of juror Earl Clegrove should have been sustained, because the prosecuting attorney's remarks in the presence of the other jurors relative to threats and burning houses of witnesses, were improper and prejudicial to the defendant.

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The information in this case is sufficient in form and properly charges the offense of murder in the first degree, within which is comprehended the offense of manslaughter. Sec. 4376, R.S. 1939; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168; State v. Havens, 177 S.W.2d 625. (2) The verdict is in proper form and is responsive to the issues. State v. Baublits, 27 S.W.2d 16, 324 Mo. 1199. (3) The record in the cause discloses that defendant was formally arraigned, was granted allocution after verdict, and was sentenced in accordance with the verdict of the jury. (4) The court did not err in overruling Assignments of Error Nos. 1, 2, 4, 5, and 13 in appellant's motion for new trial. Sec. 4125, R.S. 1939. (5) The court did not err in overruling Assignment of Error No. 3 in appellant's motion for new trial. State v. Page, 110 S.W. 1057, 212 Mo. 224. (6) The court did not err in overruling Assignment of Error No. 6 of appellant's motion for new trial. State v. Robinson, 177 S.W.2d 499. (7) The court did not err in overruling Assignment of Error No. 7 in appellant's motion for new trial. State v. Hogan, 177 S.W.2d 465; State v. Havens, 177 S.W.2d 625; Sec. 4382, R.S. 1939; State v. Connor, 252 S.W. 713; State v. Peters, 123 S.W.2d 34. (8) The court did not err in overruling Assignment of Error No. 8 in appellant's motion for new trial. State v. Noland, 229 S.W. 198; State v. Batson, 96 S.W.2d 384, 339 Mo. 298; State v. Ford, 130 S.W.2d 635, 344 Mo. 1219; State v. Ancell, 62 S.W.2d 443, 333 Mo. 26. (9) The court did not err in overruling Assignment of Error No. 9 in appellant's motion for new trial. State v. Batson, 96 S.W.2d 384, 339 Mo. 298. (10) The court did not err in overruling Assignment of Error No. 10 in appellant's motion for new trial. State v. Ford, 130 S.W.2d 635, 344 Mo. 1219. (11) The court did not err in overruling Assignment of Error No. 11 in appellant's motion for new trial. See authorities under (8). (12) The court did not err in overruling Assignment of Error No. 12 in appellant's motion for new trial. See authorities under (8), (9), (10) and (11). (13) The court did not err in overruling Assignment of Error No. 14 in appellant's motion for new trial. State v. Jacobson, 152 S.W.2d 1061, 348 Mo. 258.

Bohling C. Westhues and Barrett, CC.,...