State v. Parker

• Citation: 199 S.W.2d 338,355 Mo. 916
• Decision Date: 10 February 1947
• Docket Number: 40179
• Parties: State v. Sam R. Parker, Appellant
• Court: Missouri Supreme Court

199 S.W.2d 338

355 Mo. 916

State v. Sam R. Parker, Appellant

No. 40179

Supreme Court of Missouri

February 10, 1947

Appeal from Dent Circuit Court; Hon. William E. Barton Judge.

Affirmed.

Earl E. Roberts and Geo. F. Addison for appellant.

(1) Deceased, Jordan, had within an hour or two committed a felony in the presence of the posse, was apprehended in the act of committing a second one and was killed while in flight to escape arrest. An officer has a right and duty to arrest without a warrant, a person who has committed a felony in his presence or who is in the act of committing one. 6 C.J.S 586, notes 82, 83, 84; State v. Nolan, 192 S.W.2d 1016; State v. Williams, 14 S.W.2d 434. (2) And if the officer necessarily kill him when he resists or endeavors to escape, the homicide will be altogether justified. State v. Underwood, 75 Mo. 230; State v. Evans, 61 S.W. l.c. 594; State v. Whitley, 183 S.W. 317. (3) Jordan was fleeing from arrest into the darkness and in a few seconds would have been out of sight and gone. An officer, in seeking arrest for felony, is entitled to overcome flight to the extent of killing the felon if necessary, and such homicide is justifiable. 40 C.J.S. 963, note 59; State v. Nolan, 192 S.W.2d 1016; State v. Dierberger, 10 S.W. 168; State v. Ford, 130 S.W.2d l.c. 638; Sec. 3960, R.S. 1939. (4) An officer may summons persons to assist in the pursuit and arrest of known or suspected criminals, and when so summoned a private person will be protected with the same degree of protection which is placed by the law around an officer, and has the same rights and duty to arrest, without a warrant, for a felony committed in his presence, or while one is being committed. Further, he may resort to the same measures to secure the arrest of the offender. 5 C.J. 411, note 59; State v. Evans, 61 S.W. l.c. 594. (6) Persons orally deputized by a sheriff to assist him in arrest for a felony are neither officers nor mere private persons while co-operating and under his orders, but are in the legal position of a posse comitatus. 5 C.J. 429, notes 33, 34. (7) In order that they may be clothed with the protection of the law in their acts, it is not essential for the posseman to be and remain in the actual physical presence of the sheriff. It is sufficient if the two are in the same neighborhood, actually endeavoring in concert with a view of effecting it. 5 C.J. 429, note 33. (8) If the acts and declarations of those charged with enforcement of the law are such as in reason and fairness to induce the conviction that aid is desired and as in substance to amount to a summons, then the law would but slightly concern itself with the particular character of the words used in effecting such summons. Purdy v. State, 131 S.W. l.c. 561. (9) It is the right, privilege and duty of any citizen knowing that one has committed, or is in the act of committing a felony, to arrest without waiting for a warrant, and in so doing may use such force as is necessary to effect arrest, or prevent escape. 6 C.J.S. 606, notes 90, 92, 93; Pandjiris v. Hartman, 94 S.W. l.c. 272; State v. Nolan, 192 S.W.2d 1016.

J. E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) Assignments of error Nos. 1, 2 and 3 in appellant's brief are too indefinite to preserve anything for review by this court. State v. Kelly, 107 S.W.2d 19; State v. Boyer, 342 Mo. 64, 112 S.W.2d 575; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666; State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719. (2) There is sufficient evidence to support the verdict, and also to support Instruction 1 on second degree murder given by the court. State v. Peters, 123 S.W.2d 34; State v. Rusow, 106 S.W.2d 429; State v. Woods, 346 Mo. 538, 142 S.W.2d 87; State v. Barnes, 325 Mo. 545, 29 S.W.2d 156; State v. Simmons, 332 Mo. 247, 58 S.W.2d 302; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; State v. Howard, 352 Mo. 410, 177 S.W.2d 616; State v. Eaton, 154 S.W.2d 767. (3) The defendant was not legally deputized by the sheriff for the purpose of making an arrest. However, assuming that he was, for the sake of argument only, he used wanton and unnecessary force in attempting to stop the deceased. Secs. 3882, 3961, 12821, 13133, 13136, R.S. 1939; Purdy v. State, 131 S.W. 558; 16 C.J., pp. 1380-1381, sec. 3256; State v. Nolan, 192 S.W.2d 1016; State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; State v. Coleman, 186 Mo. 151, 84 S.W. 978; State v. Montgomery, 230 Mo. 660, 132 S.W. 232; State ex rel. Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132; State v. Beckham, 306 Mo. 566, 267 S.W. 817; State v. Havens, 177 S.W.2d 625. (4) The court properly instructed on the law in the case under the evidence adduced at the trial. State v. Foster, 197 S.W.2d 313; State v. Goode, 220 S.W. 854; State v. Miller, 292 S.W. 440; 1 Warren on Homicide, Permanent Edition, sec. 145, pp. 627, 628, 629; State v. Albright, 144 Mo. 638, 46 S.W. 620; 16 C.J., pp. 1380-1381, sec. 3256.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Jimmie Jordan, nineteen years old, was killed by defendant at about 12:30 the morning of September 26, 1945 on the premises of Earl Carty at Bangert, Dent County. Defendant was convicted of murder in the second degree and sentenced to ten years' imprisonment.

Herein upon appeal defendant-appellant contends that, when the homicide was committed, he was either acting as a member of a posse comitatus or acting in the exercise of a duty as a private person in making an arrest of a felon; and that the only question for the jury's consideration was whether defendant had used more force than reasonably necessary to accomplish the arrest. Defendant-appellant also urges there was no evidence of the malice aforethought essential to a conviction of murder in the second degree.

Defendant had been told by his son, Eugene "Buck" Parker, that Jimmie Jordan had suggested the son help steal chickens from the henhouse of Elva Carty, who resides about one-half mile south of Bangert; defendant told Carty, who with defendant and defendant's son went to Salem, where the information was given to the sheriff. Chickens and livestock had theretofore been stolen of people residing in the Bangert community. It was arranged by the sheriff, defendant and Carty that defendant's son should go ahead with the plan proposed by Jordan. The sheriff announced his purpose to "catch him (Jordan)" in the act. No express direction was given by the sheriff to defendant to participate in the apprehension or arrest of Jordan, but the sheriff testified, defendant "could have taken it that way." The sheriff testified, the purpose of Carty's and defendant's presence "was to direct me and show me where all this was going to take place." And soon after dark September 25th, the sheriff, his deputy Redwine, defendant and Elva Carty were in wait near Elva Carty's barn. All were armed, the defendant with a twelve-guage double barrelled shotgun. After waiting two or three hours, they observed a man (Jordan), who entered the Carty henhouse, came out with two chickens, and ran away in the darkness. Some guineas raised a commotion, and Jordan was afraid to return to Elva Carty's henhouse for more chickens. He suggested to defendant's son that they should go to the farm of Earl Carty at Bangert and there get some chickens known to be roosting in the barn. Defendant's son upon some pretext left Jordan and told the sheriff of this change in Jordan's plans, and then rejoined Jordan. The sheriff's party then went to the premises of Earl Carty and there concealed themselves at various positions within the Earl Carty barn. Defendant, having entered the barn by climbing over or going through a gate across the entrance and gangway of the barn, turned left through a small gate into the cow stanchions through which Jordan would have to go to approach the roosting chickens. In order to reach the chickens, it would have been necessary to stand upon the mangers of the cow stanchions. It was planned that the members of the sheriff's party would wait until Jordan had climbed upon the mangers, and all were then to rush upon and seize him. The sheriff had instructed his deputy Redwine in the presence of defendant, "Don't shoot unless you have to, but if you do, shoot low . . . We don't want to hurt him." Within a few minutes, Jordan and defendant's son approached the barn. Jordan climbed over the gate across the gangway at the entrance of the barn, and passed to the left through the small gate into the cow stanchion occupied by defendant and there hesitated momentarily. Defendant, thinking Jordan had seen him, "shined the light (of a flashlight) in his (Jordan's) face and asked him to stop where he was . . . he ran out this small gate . . . and jumped up on this gate (across the gangway) . . . and fell over down onto the ground." There was evidence defendant twice called to Jordan to "stop." When Jordan, then running on "all fours," had reached a point about eighteen and one-half feet from the barn, defendant fired, striking Jordan in the right side just under the armpit, the charge of No. 6 chilled shot "ranging upward" in Jordan's body. "Right there after" the shooting occurred, the defendant said, "Well, he was getting away . . . I didn't aim to kill him, I was drawing to the right of him."

In a proper case the sheriff can summon to his aid in the performance of his duty the "posse comitatus," or the whole power of the county, and persons so called upon are bound to aid and assist him. Statutes empowering a sheriff to summon suitable aid in the suppression of disturbances of the peace have been held to be an affirmance of the common law by which the sheriff might raise a posse comitatus. 57 C.J. Sheriffs and Constables...