The State v. McGehee

• Decision Date: 05 June 1925
• Docket Number: 26104
• Parties: THE STATE v. PHELIX McGEHEE, Appellant
• Court: Missouri Supreme Court

274 S.W. 70

308 Mo. 560

THE STATE v. PHELIX McGEHEE, Appellant

No. 26104

Supreme Court of Missouri

June 5, 1925

Appeal from Stoddard Circuit Court; Hon. W. S. C. Walker Judge.

Reversed and remanded.

Farris Munger & Munger for appellant.

(1) The State must establish, by competent proof, every material fact necessary to constitute the offense charged -- to miss one material fact is to miss the whole case. State v Rutledge, 257 S.W. 1059; State v. Kaklert, 260 S.W. 520; State v. Haynes, 262 S.W. 1037. (a) Inasmuch as no proof was made of Harris's authority to make arrests, for all the purposes of this case, he had none. 5 C. J. 396; 25 C. J. 574; Pandjaris v. Hartman, 196 Mo. 548. Failure of proof cannot be supplied by presumptions or intendments. State v. Zingh, 259 S.W. 452. (b) If Harris had no power to arrest, then he was a trespasser and McGehee had the right to shoot him, if necessary, in resisting his attempt to arrest defendant. 5 C. J. 396; 29 Cyc. 1330; State v. Evans, 83 Mo.App. 301; Wehmeyer v. Mulvihill, 150 Mo.App. 209; State v. Underwood, 75 Mo. 237; Ford v. Steamship Co., 3 Hawaii Fed. 243. (c) A man cannot "believe" himself into the right to restrain or imprison other men wrongfully, however honest he may be in such belief. 5 C. J. 394; State v. Davidson, 44 Mo.App. 517. (d) Sexual intercourse between unmarried persons is morally wrong, but it is not, of itself, interdicted by the law of this State. There must be a flaunting of the immoral conduct in the face of society. State v. Chandler, 132 Mo. 164; State v. Phillips, 49 Mo.App. 327. (2) Instruction numbered four given by the State is erroneous in that: (a) It assumes, without proof, that Harris had the right to arrest any person found having sexual intercourse on the high school grounds in Dexter with any woman, without regard to the surrounding circumstances. It also assumes that Harris had the right to arrest anyone found thereon "engaging in lewd or indecent conduct." 1 Blashfield's Instructions to Juries, pp. 63, 76; State v. Mills, 272 Mo. 534; State v. Langley, 248 Mo. 554; State v. Stubblefield, 239 Mo. 530. (b) However honest may have been Harris' belief that he was engaged in a meritorious and legal act in attempting to apprehend McGehee, if he did not in fact possess such authority, he was the wrongdoer and McGehee had the right to preserve his liberty even to the extent of threatening to strike Harris before Harris shot him and shooting Harris after he had been shot by Harris. Gray v. Earls, 250 S.W. 573. (c) Had Harris shot McGehee in an attempt to make a lawful arrest he would not have been justified in shooting McGehee unless the jury found from the evidence that it was necessary to shoot him in order to accomplish such arrest or to protect himself from immediate great bodily harm. State v. Hancock, 73 Mo. 22.

Robert W. Otto, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) Under the undisputed evidence, Harris was the night marshal of Dexter at the time defendant shot him, and his right to arrest the defendant was not questioned, either in the trial or by motion for a new trial, and hence is not an issue here. (2) The case was tried on the theory that the prosecuting witness was assaulted and shot by defendant while the former was in the discharge of his duty as an officer, and while attempting to arrest defendant for an offense committed in the officer's presence. It was defendant's duty as a citizen, under the circumstances disclosed by the evidence, to submit to the arrest. Sec. 3913, R. S. 1919; State v. Bateswell, 105 Mo. 615; State v. McNally, 87 Mo. 652; State v. Pritchett, 219 Mo. 672. (3) When, as a general proposition, one refuses to submit to an arrest after he has been touched by an officer or endeavors to break away after the arrest has been effected, he may lawfully be killed, provided this extreme measure is necessary. Sec. 3914, R. S. 1919; State v. Dierberger, 96 Mo. 674; State v. Fuller, 96 Mo. 168; State v. Turlington, 102 Mo. 658; State v. Coleman, 186 Mo. 162. (4) The testimony of officer Harris is that defendant and a woman were found by him in the act of sexual intercourse on the high school grounds in the city of Dexter about midnight. This was an act of open gross lewdness and lascivious behavior prohibited by Sec. 3515, R. S. 1919, and a violation of Sec. 3256, which provides that "any person or persons who shall stop . . . near any school house, . . . for the purpose of . . . illicit sexual intercourse . . . shall be guilty of a felony." State v. Pedigo, 190 Mo.App. 297.

OPINION

White, J.

The defendant was tried before a jury in Stoddard County, September 15, 1923, for assault with intent to kill, under Section 3262, Revised Statutes 1919. He was found guilty of the offense defined in Section 3264, Revised Statutes 1919, and appealed.

He was charged with shooting one William H. Harris, night marshal and watchman of the city of Dexter, on whose evidence largely the case was made out. Harris testified that on the night of September 13, 1921, he heard laughing and talking in the public school-house grounds in Dexter, went in and found one Booyer and Mary Stubblefield, whose name then was Mary Reddick, sitting on the front steps of the school house. He stopped and spoke a few words to them, then walked around the corner of the school house and came upon the defendant McGehee and Thelma Reddick, the sister of Mary Reddick, in a very compromising position. He said to the man, "Consider yourself under arrest; I am going to take you both to town." The girl jumped up and ran away, and McGehee began a quarrel with Harris, which apparently continued for an appreciable time. McGehee finally drew back his fist as if to strike Harris, who then shot McGehee in the right shoulder. In the meantime Mary Reddick had gone away, and Booyer ran up to McGehee, who exclaimed, "I am shot, and shot bad." Booyer took hold of him, he walked a few steps and then drew his revolver with his left hand and fired three shots at Harris, striking him each time. Harris fell to the ground; and defendant said: "I wish I had more loads." Help soon arrived and Harris was taken away. On cross-examination Harris said that after he had talked to Booyer and Mary Reddick he walked around the building, a distance of about forty ordinary steps, before he came upon McGehee and Thelma Reddick. He explained in detail the way the shooting occurred, and swore that he shot in self-defense because he though McGehee was going to strike him. Both men were severely wounded.

The defendant testified that he was with Thelma Reddick in the school-house grounds and Booyer was with Mary Reddick; that Thelma Reddick was his sweetheart. When Harris arrived there, Booyer and Mary Reddick were sitting on the steps, defendant and Thelma, within a short distance, within plain view, sitting on the grass, acting with perfect propriety. He had no idea the marshal was looking for him; he had given him no cause to look for him. When Harris came up to where he and Thelma were, the girl walked away and Harris announced that he was going to arrest witness, saying he had caught him in the act, which witness denied. A quarrel ensued for several minutes in which there was considerable swearing. Defendant had no weapon in his hand, made no attempt to strike Harris, but called Harris a liar, prefixing an epithet with some profanity, when Harris shot him. He staggered and was held up by Booyer, Harris continued to hold his gun on him, and he thereupon pulled his own revolver and shot three times, each shot striking Harris; that he fired because he thought Harris was going to shoot again. He fired no other shot after Harris was down. He was corroborated by Mary Reddick.

Several questions arise in the record, such as whether Harris had a right to arrest McGehee, whether McGehee had a right to resist arrest, and whether the defendant's alleged offense or the official character of Harris affected the defendant's right of self-defense. Instructions to the jury affecting these questions were objected to by the appellant, and exceptions saved to the action of the court in giving such instructions.

I. It is first necessary to determine whether under the facts McGehee was guilty of a statutory offense. The Attorney-General asserts that he was guilty of violating Section 3256, Revised Statutes 1919, which makes it a misdemeanor for any person to encamp near a public highway, or to stop or encamp upon a vacant lot or square, or near any school house, "for the purpose of prostitution or assignation or illicit sexual intercourse."

That section undoubtedly is directed against an immoral business conducted for commercial purposes. It is an offense to stop or encamp at such a place for the purpose of carrying on the business. It would not matter whether any immoral act was actually committed or not, it is the encampment, or stopping for the purpose, that constitutes the offense. Plainly this contemplates a preparation for commercial vice, not individual immorality.

It is likewise argued that McGehee was guilty of violating Section 3515, Revised Statutes 1919. That section defining adultery, has often been construed by this court as it affects persons one of whom is married. [Dameron v. State, 8 Mo. 494; State v. Chandler, 132 Mo. 155; State v. Sekrit, 130 Mo. 401.] With that part of the section we have nothing to do because McGehee and Thelma Reddick were unmarried and of full age. Other statutes, with sufficient severity, define crimes against females of certain immature age. At common law, adultery could not be committed unless one of the persons involved was married. [State v. Holland, 162 Mo.App. 678, l. c. 680.] In order to be guilty of the...