State v. Rose

• Decision Date: 01 February 1898
• Citation: 44 S.W. 329,142 Mo. 418
• Parties: The State v. Rose, Appellant
• Court: Missouri Supreme Court

44 S.W. 329

142 Mo. 418

The State v. Rose, Appellant

Supreme Court of Missouri, Second Division

February 1, 1898

Appeal from Howard Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded.

O. S Barton and W. M. Williams for appellant.

(1) The verdict was against the evidence, and against the law laid down by the trial court, and the defendant should be awarded a new trial upon that ground alone. It was the result of prejudice and was far more severe than could have been anticipated. (2) The instruction of the court, telling the jury that the defendant had no right to use any more force than was absolutely necessary to make the arrest, stated the matter too strongly for the prosecution. The defendant had to act upon the appearances presented to him at the time. If he used no more force than appeared to be reasonably necessary and that he had good reason to believe, and did believe, was necessary from the surrounding circumstances, he should not be liable. State v. Palmer, 88 Mo. 568; State v Dierberger, 96 Mo. 666; Wharton, Crim. Law [8 Ed]., sec. 402; State v. Dierberger, 96 Mo. 666; State v. Fuller, 96 Mo. 163; State v. McNally, 87 Mo. 644. (3) The court failed to instruct the jury as to manslaughter in the second degree. R. S. 1889, sec. 3470. (4) The twelfth and thirteenth instructions set out certain facts and told the jury that if they existed the defendant could not be acquitted, but did not state of what offense he could not be so acquitted. The court had given instructions defining murder in the first degree, murder in the second degree and manslaughter in the fourth degree. The jury were left to grope in the dark by these instructions as to the degree of homicide of which they could convict the defendant. (5) The eleventh instruction was a mere abstract proposition, and misleading. (6) The jury were kept in confinement under charge of an officer an unreasonable length of time, and the verdict was not the result of their deliberate judgment. (7) The court failed to define "heat of passion," as used in the instructions. State v. McKinzie, 102 Mo. 620. (8) The indictment in this case is bad for the reason it does not conclude in the manner pointed out in the case of State v. Rector, 126 Mo. 328: "Any material omission in the conclusion of an indictment is as fatal as if occurring in any other portion of the instrument." State v. Rector, 126 Mo. 328; State v. Pemberton, 30 Mo. 376.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The indictment is in valid form for murder in the first degree. It employs virtually the same language as used in the indictment in the case of State v. Turlington, 102 Mo. 642, which, in that case, is fully and elaborately commented upon by the court, in which the following cases are cited as authority in support thereof: State v. McDaniel, 94 Mo. 86; State v. Barnett, 81 Mo. 119; State v. Hughes, 82 Mo. 86; State v. Burns, 99 Mo. 471. (2) Objection is also made by defendant that the court failed to properly instruct the jury on all questions of law. Advantage of such failure upon the part of the trial court, if there was a failure in that regard, can not now be considered. It should have been called to the attention of the trial court at the time the instructions were given. State v. Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 500; State v. Woods, 137 Mo. 6. (3) The court gave the jury all instructions as offered by defendant and they, with those for the State, set all objection on the question of sufficiency or form of the instructions at perfect rest. Even though the instruction defining and instructing upon murder in the first degree be incorrect, defendant has no right to complain, for the reason that he was not convicted of that offense. State v. Williams, 68 Mo. 110; State v. Kelley, 85 Mo. 143. (4) All of the technical words and terms, such as willful, deliberate, premeditated, malice and malice aforethought, as used in the instructions, were properly defined. State v. Frazier, 137 Mo. 317. (5) There is nothing in the record showing that the verdict is not the deliberate judgment of the jury or that by reason of being kept in confinement some of the jurors were induced to agree upon a verdict against defendant. Allegations contained in motion for a new trial do not prove themselves.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

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 third 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 ten years' imprisonment in the penitentiary. From the judgment and sentence he prosecutes this appeal.

The homicide occurred on the evening of the third 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 friends of deceased 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, someone 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 within thirty 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 criticized 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 can not 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 to arrest 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 can not 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 fires 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 is 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...