State v. Peters

Decision Date08 June 1922
Docket NumberNo. 23380.,23380.
Citation242 S.W. 894
PartiesSTATE v. PETERS.
CourtMissouri Supreme Court

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Ed Peters was convicted of assault with intent to kill with malice aforethought, and he appeals. Affirmed.

On the 23d day of April, 1921, appellant shot and seriously wounded A. J. Matthews, the deputy sheriff of Dent county. For this he was charged by information with assault with intent to kill, with malice aforethought, and upon trial was convicted and his punishment assessed at five years imprisonment in the state penitentiary. His motion for a new trial and in arrest of judgment were overruled, and he has prosecuted his appeal to this court.

The uncontroverted evidence was that appellant and his wife were at the time of the shooting operating a hotel in the town of Salem; that on the evening of the shooting a controversy had arisen between appellant and members of his household, with the result that after bedtime, and after his family and guests had retired, appellant was suddenly seized with a fit of anger and proceeded to a room occupied by two of his guests, where by loud, profane, abusive, and threatening language he caused said guests to leave the hotel, and, proceeding to an adjoining room occupied by his wife and daughter, he there engaged in such abusive language as to cause his wife and daughter to flee in terror from the hotel and to appeal for aid. After the guests and members of his family had fled from the hotel, appellant proceeded to destroy part of the furniture with an ax and used said ax to chop through one of the locked doors.

Matthews, acting in his official capacity, upon the importunity of said guests and members of appellant's family, came to the hotel, where he found appellant angry, talking loud and swearing, and immediately sought to appease him, commanding appellant to be within the peace. This angered appellant the more, and with abusive epithets he ordered Matthews out of the hotel, and moved menacingly toward the ax used by him in chopping up the furniture. Thereupon Matthews went out for aid in his efforts to secure the peace or to arrest appellant. Upon Matthews' return to the hotel, appellant, who had armed himself in the meantime with a double-barrel shotgun, shot said Matthews in the left side and in the left arm. His plea was self-defense. Other pertinent facts will be noted in the course of the opinion.

Clyde C. Cope and J. J. Cope, both of Salem, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

REEVES, C. (after stating the facts as above).

1. Appellant challenges the authority and right of deputy sheriff Matthews to enter his hotel at 11 o'clock at night without a warrant and to undertake to accomplish his arrest, and justifies his resistance, as being no more than repelling au intruder.

Section 11640, R. S. 1919, provides that sheriffs are conservators of the peace, and section 11638, R. S. 1919, clothes the deputy sheriff with the same power as that possessed by the sheriff. The sheriff and his deputies, as peace officers, have the right to make arrests, without warrant, in misdemeanors committed in their presence flagrante delicto. State v. Grant, 76 Mo. 236, loc. cit. 245. This is a power possessed by them virtute officii (5 C. J. 396), and is a common-law power (State v. Underwood, 75 Mo. 230; State v. Holcomb, 86 Mo. 371; State v. Hancock, 73 Mo. App. 19; State v. Grant, supra; State ex rel. v. Dierker, 101 Mo. App. 636, 74 S. W. 153; Taaffe v. Slevin, 11 Mo. App. 507; Wehmeyer v. Mulvihill, 150 Mo. App. 197, loc. cit. 206, 130 S. W. 681; State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. Rep. 380).

An offense may be said to have been committed in the presence or view of a peace officer when the officer hears the disturbance created thereby and proceeds at once to the scene, and in like manner where the offense is continuing at the time the arrest is made. 5 C. J. 416; State v. Grant, 76 Mo. 236.

The latter case is cited and relied upon by appellant to sustain his contention that the deputy sheriff, as a peace officer, had no right to attempt to make an arrest without a warrant. Appellant is not sustained by that case, as it was held that the larceny mentioned therein was not complete, though the defendant had taken the property some time previously and was carrying it some 300 to 500 yards distant from the place of taking, when the officer he killed attempted to arrest him.

In the instant case the testimony was uncontroverted that appellant was making a violent disturbance at his hotel and was guilty of such conduct as to cause his guests and members of his family to flee from his presence and seek refuge at another hotel, and that an appeal was made to Deputy Sheriff Matthews to quell such disturbance; that the neighborhood was aroused by the breach of the peace, and that, when Matthews arrived at the hotel, appellant was still cursing and talking loudly; that, when approached by Matthews, he instantly resented any effort to quiet or appease him, became abusive to Matthews, and threatened him with his ax.

The misdemeanor continued in the view of Matthews, as a peace officer, and it became his duty to command the peace by arresting the offender, even though he had no warrant. 3 Cyc. 881; State v. Dierberger, supra.

2. Appellant raises a question as to the right of an officer to make an arrest without a warrant even in felony cases. It is the settled law that it is the right and privilege of any citizen, knowing that a felony has been committed or being committed, to arrest the offender without a warrant. Pandjiris v. Hartman, 196 Mo. 539, loc. cit. 545 and 546, 94 S. W. 270; Hauser v. Bieber, 271 Mo. 326, loc. cit. 336, 197 S. W. 68; State v. Cushenberry, 157 Mo. 168, loc. cit. 181, 56 S. W. 737.

3. It is contended by appellant that It became the duty of Matthews to have informed the appellant that he was an officer and was about to put him under arrest. There was an abundance of testimony showing that appellant knew that Matthews was an officer. The testimony showed that appellant and Matthews were well acquainted, resided together in a small town, and on cross-examination, without objection, appellant's counsel elicited the fact that appellant knew Matthews to be a deputy sheriff, and moreover he raised no question of that kind at the time, as...

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21 cases
  • People v. Marshall
    • United States
    • California Supreme Court
    • July 16, 1968
    ...which the 'atmosphere was loaded with the perfumes of whisky'); the Sense of hearing was approved for an arrest or search in State v. Peters (1922) 242 S.W. 894; Dilger v. Commonwealth (1889) 88 Ky. 550, 11 S.W. 651; Goodwin v. Allen (1953) 89 Ga.App. 187, 78 S.E.2d 804; Wiggins v. State (1......
  • State v. Parker
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    • Missouri Court of Appeals
    • April 16, 1964
    ...284(15), and cases at 291; State v. McBride, 327 Mo. 184, 37 S.W.2d 423(5); State v. Jenkins, 321 Mo. 1237, 14 S.W.2d 624, 625; State v. Peters, Mo., 242 S.W. 894.9 City of St. Louis v. Penrod, Mo.App., 332 S.W.2d 34; State ex rel. and to the Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2......
  • State v. White
    • United States
    • Missouri Court of Appeals
    • April 18, 1958
    ...that such facts could not well have been concealed from the jury [cf. State v. Hatcher, 303 Mo. 13, 259 S.W. 467, 469-470; State v. Peters, Mo., 242 S.W. 894, 897]; and certainly, in the absence of timely and proper objection thereto, the admission in evidence of such facts could not have c......
  • State v. Lowry
    • United States
    • Missouri Supreme Court
    • January 10, 1929
    ...car but whether the officer had reasonable grounds to believe that he did, and this testimony was competent to that issue. State v. Peters, 242 S.W. 894. In addition defendant asked his instruction number four on the theory that credible information is a sufficient basis for probable cause.......
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