The State v. Meyers

• Decision Date: 19 May 1903
• Parties: THE STATE v. MEYERS, Appellant
• Court: Missouri Supreme Court

74 S.W. 862

174 Mo. 352

THE STATE v. MEYERS, Appellant

Supreme Court of Missouri, Second Division

May 19, 1903

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Reversed.

S. S Bass for appellant.

(1) The court erred in failing to instruct the jury for common assault, because there was no evidence whatever that the club used was a deadly weapon. It was not used upon and about a vital part on the body of the prosecuting witness, and in such a way as was likely to produce death. State v Schloss, 93 Mo. 361; 2 Bishop Crim. Law, sec. 681. (2) The court erred in giving the first, second, third, fourth and fifth instructions to the jury, for all of those are predicated on the theory that defendant Meyers was responsible for what Rackaway did; that they were acting in concert, and with common intent, as conspirators, and there is absolutely no evidence in the record upon which to base such instructions. 1 Bishop New Criminal Law, secs. 633, 643; 1 Wharton Criminal Law (10 Ed.), sec. 211a; State v. Hickam, 95 Mo. 322; State v. Savage, 18 Fla. 909; Clem v. State, 33 Ind. 418; State v. Farr, 33 Iowa 553; People v. Knapp, 26 Mich. 112; Rex v. Collison, 4 C. & P. 565; Rex v. Leonard, 1 Russell & Grey 98; State v. Orrick, 106 Mo. 111; State v. Walker, 98 Mo. 95; State v. Valle, 164 Mo. 551. (3) The court erred in refusing to instruct the jury, as prayed by defendant, on the right of defendant to resist an assault by an officer when not making an arrest. It was the duty of the court to give such instructions even without request. State v. Albrecht, 144 Mo. 638; State v. Duncan, 116 Mo. 298; State v. Clayton, 100 Mo. 516; State v. Hayes, 89 Mo. 262.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

(1) The State offered evidence tending to show that defendant, Rackaway, used the patrolman's club and began to strike and beat the prosecuting witness with the same. The defendant objected to this evidence; but it is entirely competent for the State to show any act of the co-defendant, Rackaway, during the prosecution of the common enterprise. In such cases the acts of one defendant are admissible against all. State v. Ross, 29 Mo. 32. (2) The defendant asked and the court refused three instructions. The general purport was that a police officer of the city of St. Louis has no authority to compel any person, who is standing upon a public street, in a quiet and peaceable manner, to move or go away, and if such person fails to obey such command that a policeman has no right whatever to assault such person, and that such person has the right to resist force by force and meet violence with violence, and to use such means as are necessary to preserve life or prevent great bodily harm from being inflicted upon him. But the court, in the fifth instruction given on behalf of the State, advised the jury that if they found from the evidence that the prosecuting witness struck defendant without attempting to arrest him and that defendant Meyers resisted the officer and held his arms in order to prevent himself from further blows from such officer, then they should find defendant Meyers not guilty. It seems that this instruction favorably complied with the law. If the police officer was not endeavoring to arrest the defendant, and was not acting in his official capacity of police officer, then the defendant had the undoubted right to resist in the same manner and to the same extent as if the officer had been a private individual. The law does not throw around an officer its special protection, except while engaged in the performance of some official duty, and by this instruction the jury were so advised. State v. Duncan, 116 Mo. 312; State v. Clayton, 100 Mo. 521.

OPINION

GANTT, P. J.

This is a prosecution for an assault with intent to kill, with malice aforethought. The prosecuting witness is William A. Dempsey, a member of the police force of the city of St. Louis.

The indictment is in the ordinary and approved form.

The arraignment was regular and a plea of not guilty entered.

The facts developed on the trial are substantially the following:

On the night of the twenty-sixth of October, 1901, Dempsey, who was a policeman in the Fifth district, and whose beat was from North Market to Chambers and from Broadway to Tenth street, about midnight, was on his way to the office to make his midnight report and when he reached the northwest corner of Ninth and Clinton streets, he saw the defendant, Gus Meyers, and three other young men, Rokum or Workam, Phillips and Rackaway, standing near the corner. It is not pretended that they or either of them were making any disturbance or that they were blocking up the sidewalk.

It appears that Phillips, Workam and Rackaway had been visiting Meyers, the defendant, who lived and worked for Mrs. Finch at No. 2124 North Eleventh street, and remained until about 11:30 that night. When the three started home the defendant proposed to go with them to the corner of Ninth and Clinton and get a glass of beer. They had been to the saloon, had their beer, and had come out on the sidewalk, and defendant was rolling a cigarette, when the officer came up to them. It seems he knew the defendant and Workam, but did not know Phillips and Rackaway. As soon as the officer came up to this party, he ordered the defendant to move on. The officer says defendant replied, "Wait awhile," and thereupon he put his hand on defendant's shoulder and shoved him not very hard. "The defendant stepped back two or three steps and I dropped my hand to my side and he ran to me and grabbed me around the waist and tried to throw me down and then Rackaway ran in and got my stick and struck me six or seven times, breaking my leg and bruising it. The defendant, Meyers, was trying to get my gun while Rackaway was striking me, but he didn't succeed." Burkhardt, a witness for the State, gave practically the same version of the occurrence except he says the officer singled out Meyers and inquired what he was doing out that time of night and ordered him to move on and then "nudged him." When the officer threw his hand to his side as if to use his club, Meyers jumped at him and pinioned his arms to prevent him striking with his club. He says Meyers, the defendant, did not take the officer's club from him.

Workam and Phillips took no part in the difficulty.

Phillips says the officer came up and said, "Meyers, you get out of here," and pushed him. Meyers started off and the officer followed him and Meyers turned around and grabbed him and threw him down and Rackaway beat him over the legs with the club which the officer had dropped. Heard someone say, "Watch the gun," but didn't see the officer's revolver.

Officer Flood testified to arresting defendant and taking him in a patrol wagon to the station. On the way down he clubbed the defendant. Split his ear and bruised him over the head to such an extent that he had to be taken to the dispensary twice for treatment.

On the part of defendant, Rackaway testified they had a drink of beer and had come out on the sidewalk when the officer came up. He said, "Meyers, what are you doing around here?" Meyers said, "Nothing." The officer then said, "Get to hell away from here." Meyers said, "Wait, let me roll a cigarette," and at that the officer shoved him, and Meyers caught him by the elbow of his coat, and the officer hit him with his club over the head. They clinched and fell.

Rokum or Workam...