State v. Whitley

• Decision Date: 15 February 1916
• Docket Number: No. 19309.,19309.
• Citation: 183 S.W. 317
• Parties: STATE v. WHITLEY.
• Court: Missouri Supreme Court

183 S.W. 317

STATE v. WHITLEY.

No. 19309.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

David Whitley was convicted of murder in the first degree, and he appeals. Affirmed.

Defendant was convicted in the circuit court of the city of St. Louis of murder in the first degree, for that he had shot and killed Officer William H. Shaiper of the police force of that city. His punishment was fixed by the jury at imprisonment in the state penitentiary for the term of his natural life. From this verdict, and a sentence in accordance therewith, he has, after the conventional motions, appealed. The facts attending this homicide run briefly thus:

About 10 minutes of 1 o'clock on the morning of March 22, 1914, deceased, a police officer of the city of St. Louis, in company with Officer Joyce, likewise of said force, was engaged in walking his beat on Morgan street, between Fifteenth and Sixteenth streets. As deceased and Joyce, walking west, came into Sixteenth street, they looked south, and about two blocks away, at a point on Sixteenth street, some 10 feet from Washington avenue, saw defendant and another man, who afterwards was found to be one Wagner, holding to a man by the name of David O'Connor, who seemed to be drunk. Suspecting that O'Connor was drunk, and that defendant and Wagner were engaged in robbing him, the two officers ran to the point where defendant, O'Connor, and Wagner were, with a view of ascertaining the situation. According to the testimony for the state, Officer Joyce inquired of the defendant whether he was acquainted with O'Connor and Wagner. Defendant answered that he was not; that he knew neither of them. Likewise Joyce inquired of Wagner whether he knew O'Connor and defendant and was advised that he did not. According to the testimony of defendant these questions were asked by deceased. Not being satisfied with the explanation given by defendant and Wagner, deceased and Joyce placed all three of these men under arrest and started with them to a patrol box located at Fifteenth street and Lucas avenue, which, it seems, was some two or three blocks distant. Deceased started on ahead in charge of defendant, whom he was holding by the waistband of his trousers. Joyce followed with Wagner and O'Connor. When the five of them reached a point about opposite 1517 Lucas avenue, which is apparently some 500 feet or more from the point of arrest, and when defendant and deceased were some 50 or 60 feet ahead of the other three, a sudden scuffle was observed by Joyce between defendant and deceased, which was followed instantly by a pistol shot, which shot was almost instantly followed by two more shots. Deceased fell, and defendant ran. After defendant had disappeared around the corner of Fifteenth street, he returned, and with the remark to Joyce, "You son of a bitch, I will give it to you, too," he fired a shot at Joyce. The latter returned the fire, and seems to have shot at defendant four times. From the shots fired by defendant, deceased was hit twice, and died while being taken in the ambulance to the hospital.

Defendant, an hour or more thereafter, was discovered lying in a vacant lot between Thirteenth and Fourteenth streets. While Joyce and other police officers were searching this lot for defendant, they heard a revolver snap four times, and immediately thereafter a shot fired. Upon investigation they found defendant lying in a slight depression in this vacant lot, with a gunshot wound entirely through his body, which shot inflicted a serious and well-nigh fatal wound. Defendant was taken to the hospital, and while recovering there stated that he had shot himself while hiding in the vacant lot, but upon the trial he swears that he was shot before he reached the lot, inferably by Officer Joyce, though he does not definitely say so. He does say that he discovered that he was wounded shortly after Joyce fired at him. The pistol of deceased was found in the holster on his person, with no evidence of having been recently fired, but with an empty shell therein, upon which the hammer rested, and which condition, however, the testimony shows, was according to the custom of police officers. This custom, it is said, is to carry but five loaded cartridges in a six-shot revolver, and to permit the hammer of the revolver to rest upon an empty shell.

The testimony for the state of one Ladinsky shows that, about an hour before the arrest of defendant by deceased and Joyce, defendant and O'Connor had held him up with a pistol and robbed him of 40 cents, at a point on Carr street, between Twenty-First and Twenty-Second streets, which point is not very far distant from the place where deceased was killed by defendant. There is no showing in the record, however, that at the time defendant and O'Connor robbed Ladinsky either of these officers knew that this robbery had occurred, or that defendant had committed it; but, on the other hand, there is no proof in the record negativing the fact of knowledge on the part of deceased. The record simply fails to disclose affirmatively that deceased was apprised of these facts; but it does show that Joyce, who walked a neighboring beat, did not know of it. Ladinsky, however, sufficiently identified defendant as being the one who assisted O'Connor in robbing him. O'Connor, testifying for the state, admits that he and defendant did rob Ladinsky. In passing, however, it may be said that O'Connor, evidently in an attempt to excuse himself, relates an incredible story of being compelled by defendant to assist him in the robbery of Ladinsky and to accompany defendant on the night in question for the purpose of engaging generally in highway robbery upon whomsoever they might meet. But the truth of O'Connor's testimony, as well as that of Ladinsky, was for the jury upon instructions given by the court.

The record in this case is padded with a great mass of immaterial and irrelevant questions, having nothing whatever to do with the defense urged, and it has been a laborious and difficult matter to glean the really important facts from this mass of befogging immaterialities. The defendant on his part admitted the shooting, but claims to have fired in self-defense. He denies that he robbed Ladinsky. He says that he was a stranger in St. Louis, having only reached that city between 3 and 4 o'clock on the afternoon of March 21st, and was merely taking a walk for his health, when he saw O'Connor, a stranger to him, fall and hurt himself, and that thereupon he went to his assistance. There was some testimony, scarcely sufficient, however, to raise an issue, touching the previous good character of defendant. On this phase, and just as though the proof had sufficiently raised the question, the court correctly instructed.

Since all of the matters which are urged by defendant's learned counsel for reversal in this case have to do with questions touching the lawfulness of defendant's arrest, his right, if it was unlawful, to resist, and of the admissibility of proof of motive, as arising from the showing that he had robbed Ladinsky, we may content ourselves with this statement of the general facts of the case, leaving the more pertinent and intimate details to be set forth in connection with the discussion in our opinion.

Campbell Allison, of St. Louis, for appellant. John T. Barker, Atty. Gen., Thomas J. Higgs, Asst. Atty. Gen., and Kenneth C. Sears, of Jefferson City, for the State.

FARIS, P. J. (after stating the facts as above).

I. Learned counsel for defendant contends with much of zeal and learning that under the facts here (which we have set forth so far as they are pertinent in illuminating this point) the arrest of defendant by the police officers, Joyce and Shaiper, was an illegal and not a lawful arrest, and therefore defendant had the right to resist such arrest, even to the extent, if necessary, of slaying the officer who sought to put him under restraint. However true as a general rule we may concede the proposition urged upon us to be, it does not rule this case upon the facts. This is so for at least two reasons, which sufficiently appear in the record: (a) The defendant did not resist the arrest, but, on the contrary, he submitted to it, and, while in custody, wantonly killed the officer; and (b) the facts disclose sufficient grounds of arrest, even if he had not submitted.

The facts disclose that neither physical nor vocal objection was made by defendant when the deceased took charge of him. If the arrest of defendant was illegal, he waived the illegality; for he submitted, and accompanied the deceased officer a distance of more than 500 feet before he shot and killed him. Nor does defendant give for his admitted act of killing this officer any such excuse as that he shot him to prevent, or to escape, an unlawful arrest or restraint of his person. Defendant gives in his own words as his reason for killing this officer this excuse only:

"I was so scared and nervous and frightened that I didn't realize what I was doing, and I just thought my life was in danger, * * * and I drew out this gun and pulled the trigger twice — there was two shots, and I turned and ran down the street, and when I got down the street part ways the thought flashed through my mind, `What a fool you are to run; you wasn't doing nothing but protecting your own life;' and I turned round and started to give myself up to this policeman, and he deliberately turned around on me and shot at me four times."

Elsewhere in his testimony he says that the officer was assaulting him, that he was choking him, had his arm about his neck in a "chancery grip," and had struck him in the face; that he slipped and fell, and a shot was fired (apparently, from the context, by the deceased officer at defendant, but he avoids saying so directly); that he got on his feet and drew his pistol, because he realized that his life was in danger; t...