State v. Rose

• Decision Date: 01 February 1898
• Citation: 44 S.W. 329,142 Mo. 418
• Parties: STATE v. ROSE.
• Court: Missouri Supreme Court

44 S.W. 329

142 Mo. 418

STATE v. ROSE.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

MANSLAUGHTER — RESISTANCE OF ARREST — RIGHTS OF OFFICER — INSTRUCTIONS — CONDUCT OF TRIAL — JURY — NEW TRIAL.

1. The refusal to grant a new trial for want of evidence to support the verdict will not be disturbed as an abuse of discretion, when there is substantial evidence to support the verdict.

2. Under Rev. St. 1889, § 3477, manslaughter in the fourth degree includes every unjustifiable homicide which was manslaughter at common law, and which is not declared to be manslaughter in some other degree. Held, that where a police officer shot deceased while resisting arrest, and used more force than was reasonably necessary to accomplish the arrest, or if, immediately after deceased ceased to resist, the officer, in the heat of passion, engendered by deceased's striking him, shot him intentionally, but without malice, he is guilty of manslaughter in the fourth degree.

3. Giving an instruction, on the trial of an officer for killing one who resisted arrest, as to the right of an officer to call for help in making an arrest, where there is no evidence applicable thereto, is not prejudicial error.

4. An instruction, in the trial of an officer for killing one who resisted arrest, that an arresting officer cannot use more force than is "absolutely necessary," is misleading, since the amount of force to be used is what reasonably appears necessary to him.

5. Holding a jury in a murder case for four days to obtain a verdict is not an abuse of discretion, where no coercion is used.

6. Failure to define "heat of passion," as used in an instruction, which showed under what circumstances such passion was aroused, is not error.

7. Where a definition of a term used in an instruction is deemed necessary, the attention of the trial court must be called to that fact before the case is submitted to the jury.

Appeal from circuit court, Howard county; John A. Hockaday, Judge.

Dora Rose was convicted of murder in the second degree, and he appeals. Reversed.

O. S. Barton and W. M. Williams, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

Defendant was indicted at the November term, 1896, of the Howard circuit court for murder in the first degree, for having shot to death with a pistol one Charles Wells, at said county, on the evening of the 3d day of November of that year. At the April term, 1897, of said court, defendant was put upon his trial, and found guilty of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the penitentiary. From the judgment and sentence he prosecutes this appeal.

The homicide occurred on the evening of the 3d day of November, 1896, after the general election which was held upon that day, at which time defendant was on duty as deputy constable of the city of Glasgow, where the killing took place. A large crowd had collected on the streets, as is usual upon such occasions, and among those present was the deceased. He was very boisterous, and just before the shooting threw a rock, and struck a negro, and defendant saw him picking up other rocks, with the apparent purpose of throwing them at some other person in the crowd. Defendant then undertook to arrest him, and the deceased resisted, whereupon defendant grabbed him, and struck him over the head with his pistol. The deceased pulled away from the defendant, when one of the deceased's friends caught and held defendant while deceased struck him in the face with his hand or fist. In the meantime defendant dropped his pistol, and, upon calling for it, some one handed him a pistol. By this time deceased had started off, and had gone a few steps, when the defendant called out to clear the way, and, as the crowd gave way, he fired three shots at the deceased, one of which struck him, from the effects of which he died withon 30 minutes thereafter. The court instructed the jury upon murder in the first and second degrees, manslaughter in the fourth degree, and justifiable homicide. The fifth, eleventh, twelfth, and thirteenth instructions given upon the part of the state are criticised by defendant. They are as follows: "(5) If you shall believe from the evidence that the defendant shot and killed Wells while the defendant was in a violent passion, suddenly aroused by reason of Wells having shoved him, or struck him with his fist or hand, or with a rock, or while resisting arrest, in which he used more force than was necessary to accomplish the same, you cannot find him guilty of murder in either degree, for in that case the law presumes that such shooting and killing was not done of defendant's malice, but by reason of such passion. On the other hand, although you may believe that defendant shot and killed Wells while in a violent passion, suddenly aroused by a shove or a blow from Wells, yet, if you shall further believe from the evidence that such shooting and killing was not necessary in order for the defendant to arrest Wells, as hereinafter explained, you will find him guilty of manslaughter in the fourth degree." "(11) The court instructs the jury that an officer in making an arrest has the right to call to his aid and assistance any, and, if necessary, all, persons within the hearing of his voice to assist him in accomplishing an arrest. (12) The court instructs the jury that under the laws of this state a police officer or constable, in attempting the arrest of a person for a breach of the peace, or an attempted breach of the peace, has no right to use any more force in making or attempting to make the arrest than is absolutely necessary under all the circumstances of the case; and in this case, although you may find and believe from the evidence that the defendant was a police officer, and had a right to arrest persons for the commission of breaches of the peace, and that at the time of the killing he was attempting to arrest the deceased for a breach of the peace, yet, if you further find from the evidence that in attempting said arrest the defendant used more force than was necessary, under all the circumstances, to accomplish the same, then you cannot acquit the defendant. (13) The court declares the law to be that, although you may find and believe from the evidence that the defendant in this case, acting as a police officer, was, at the time of the killing of the deceased, attempting to arrest deceased for a breach of the peace, and although you may further find that just prior to the shooting the deceased had resisted arrest by said defendant, and had used force in said resistance, yet, if you further find and believe from the evidence that at the time of the firing of the fatal shot by the defendant (if you find that he did fire the fatal shot) the deceased had ceased to resist arrest by the defendant, and was at the time of the killing making no resistance, and that the defendant, as such police officer, in firing the fatal shot (if he so fired the same), used no more force than was necessary under all the circumstances, then you should acquit the defendant."

It is insisted that the verdict of the jury was against the evidence and the law as declared by the court, and that the judgment should, for that reason alone, be reversed. The granting of a new trial upon the ground of the want of evidence to support the verdict of the jury rests largely in the discretion of the trial court; and where the verdict has received the approval of that court, as in the case at bar and there is substantial evidence to support it, this court will not interfere. There was evidence tending to show that when defendant fired the fatal shot deceased was only a few feet from him, walking slowly away. Upon the other hand, there was some evidence tending to show that deceased was shot while resisting arrest. The evidence upon this point was,...