*1 SUPREME COURT OP MISSOURI. Gray v. Earls. By GRAY, Their ELLA Guardian, LESLIE GRAY al., et Appellants, E. A. ED. STOUT. v. EARLS and April One,
Division 1923. 1.ASSAULT; Damages: Shooting: Negligence: Pleading. Unlawful petition wrongful charging shooting plaintiffs’ A a father wrongful- defendants and that his death was their and caused acts, charge failing negligence, unlawful can construed only charging shooting, distinguished an unlawful negligent shooting. man, mere The intentional of a whom assuming completed defendants were of- arrest for'a felony, fense less than a but of connection whose with the offense mistaken, were at time uncertain and in fact involves something graver negligence than mere [Dis- or carelessness. McLaughlin tinguishing Marlatt, .656, Conway 296 Mo. Elder, 346.] Authority Completed 2. -: to Arrest Thief: Offense. The stat-. (Sec. 3387, 1919) authorizing person ute R. S. or owner possession, warrant, person “any without a to arrest found in perpetration wilfully maliciously, the actual of the offense of wantonly right, entering premises and without another carrying away talcing grain being growing thereon, does possessor person not authorize such owner or arrest has who near-by stolen a saclc corn from a field and carried it to his cabin, being presence, the offense not committed in his nor the of- perpetration fender found actual of it. No statute author- private person izes a to make arrests such circumstances. Purpose 3. -: -: --: Disclosure to Arrest. Even disclosure, adapted an officer must amake reasonable to the cur- cumstances, character, purpose person of his and of his to arrest a suspected having completed misdemeanor, committed against person expecting -act, make to the whom he is private equal duty person. citizens owe at least an to such Shooting 4. -: defendants, -: -: Another. The crops standing deceased and one Hannah owned in one enclosed adjacent field to the eabin had been who night shooting they cprn. On the before the fatal had heard the negro pulling field, corn from deceased’s and later heard sounds hogs, as of a feeding sack thrown down and the pen talking, heard near the sound and deceased said it was n living nearby. They agreed and another to meet at the place night, same the next defendants, and Hannah and the two Yol. TERM, OCTOBER place, shotguns, in the all armed with which was went to deceased did field reason of one of the hut for some *2 join there, own field to hut went into them unarmed his negro negro. the from watch the The others for for three watched point cahin, field. a not far from his and not from deceased’s far they negro field, a sound heard went towards deceased’s and corn, pulling heard sounds from some and later one hogs negro's hog pen, being and as of corn thrown down the very night being pen. fed, and moved towards -dark, negro nearest men. The but saw the forms of two and, gun Hannah, quickly, pointed himat who advanced his hands, name, up calling he him which him told to throw did, saying, promptly “They up, Hannah.” One of the are Mr. deceased, standing several feet defendants was nearest who was defendants, slowly who, negro, walking or towards mov- from the ing him, up, presented guns him three at and called out to their hands, and when failed to do so or four times to throw immediately him, De- and other did also. one them shot resistance, armed, nothing, was not made no ceased negro’s nothing “sidling” except to walk towards cabin. all identity purpose They gave other than him no notice of their Held, that offense of' the the demand to hold his hands. degree negro completed felony, a and of below shooting authority him, act had no arrest their fendants duty disregard their was a wanton of their to disclose deceased negligence, purpose, but and was not mere unlaw- character ful intentional. charge Pleading: Shooting. A Intentional that the --:-:
5. shooting be construed ah “unlawful act” deceased was should done, wrongful “intentionally” charge since a act that is was as a necessarily sense, legal which does includes malice its injured, may imply party imply personal ill-will towards ' disregard rights of others. or reckless wantonness damages action for Self-Defense. And in an for -: -:6. case, shooting circumstances this court under the deceased telling jury plaintiffs give an instruction should upon plea finding of self-defense. defendants cannot be for saw, Misleading. Where defendants Instruction: -: -: 7. negro corn, only stealing spoke an instruction one heard telling throughout, jury, using plural ef- number actually corn, person fect, though shot was not them, mis- and for a arrest both had embodying demeanor, deceased to consider command language, arrect, is such used no when defendants himself under (cid:127) misleading and erroneous. SUPREME COURT MISSOURI. OF Gray Earls. Apprehension Danger: 8. Unfair -: -: -: and Con- fusing. telling An instruction were not compelled to “stand it was late to with arms folded until too apprehend strike” and if defendants had reasonable cause to thought danger deceased, immediate whom to be a thief, negro upon appearances him, to act and kill unfair, prejudicial confusing, is where assum- ing authority, warrant, without a to arrest a thief for a completed misdemeanor, night deceased, suppos- on a dark thief, ing when, standing him be a at a time near the gesture. negro, he said no word made no is Said instruction situation, supported evidence, not based the actual is applicable and is not to a under such circumstances. Assumption -:-: -: An of Facts and Law. instruc- existence which the tion which assumes the of facts evidence does justify- assumptions not establish unwarranted of law or contains erroneous, acts, misleading defendants’ unlawful because *3 confusing. Reputation Applied Bystander. 10. -: -: -: of Thief: deceased, One of the defendants testified that before he shot he Hannah, accompanied them, negro heard who had call out to the hands, negro’s thief, by name, reply, “They hold up, Hannah,” negro. Thereupon are Mr. he knew the he deceased, by moving, slowly called out to stood near who negro’s cabin, hands,, towards the to throw and when he so, him, he shot and the failed do other defendant shot him thought immediately afterwards. the dark In deceased was thief, him, he but do not claim that arms about go twenty but that feared he would into the thief’s cabin away them, showing feet they they and afterwards shoot make no Held, acted self-defense. in a civil action for dam- ages, judging appearance that an instruction that of the deceased, repu- the defendants could take into consideration the negro, erroneous, tation of testimony and for the same reason the reputation concerning negro, bad of the whose of- complete misdemeanor, fense was and was a should have been excluded. 11. -: Evidence: Collection of Accident Insurance. In an action damages, brought children, by for in the name of their mother guardian killing father, for the unlawful of their the admis- the mother sion of collected an accident insurance policy naming benefiiary, issued to deceased and. her as sole is error. Why 12. -: .-: Deceased. Defendants In an action for .Shot damages brought shooting children for unlawful of their 1922. TEEM, Vol. OCTOBEE v, Gray Earls. testify why permitted father, he should not do, going fired, they thought or deceased was or what place apprehensions conclusions were. Such what their damages. in a civil for suit Preliminary Hearing: Wishes State- Mother’s 13. -: -: children, damages, brought by minor action for In an ments. guardian, wrongful for the their mother name of father, testimony to whether of the mother as of their incompetent. hearing preliminary is of defendants she wanted subject binding plaintiffs, opinion not on the on the is Her wish hearing preliminary either conclude result nor does the defendants, at the plaintiffs mother said nor does what the hearing blaming defendants. To admit such about time of the testimony error. behalf In an action dam- Statements Deceased. -: -: another, wrongful shooting ages statements for the reaching home, being home, and after taken ceased while why speak he did not and did not know not blame defendants thief, him, defendants, supposing him be a before being dying and not declaration offered as gestae, is inadmissible. res Sterling Appeal H. Court.—Hon from Pemiscot Circuit Judge. McCarty, AND REMANDED. EEVERSED appellants.
Ward Beeves for
&
having
(1)
both
testified that
*4
and from
wounds he
deceased,
died,
each shot
which
they
saying
at the
him
time
he was not
a word,
making any effort to attack
and did not
them,
or
have a
gun weapon
no
or
and made
threat nor hostile demon-
against
they shot him
them,
stration
hut
he
because
did
one
not raise
hands when
of them demanded
it, makes
liability
wrongfully
clear case
admission
for
out a
killing
being.
McLaugh-
human
1919;
a
Sec.
E. S.
(Mo. App.)
Morgan
228
lin
S. W.
Marlatt,
875;
v. Mul-
v.
Conway
Morgan
459;
v.
hall,
Eeed,
214 Mo.
Gra.y v. Earls.
per-
admissibility
testimony,
(a)
were
Defendants
plaintiffs’ mother
mitted
cross-examination of these
policy to
show
she collected
life insurance
party to
the suit
husband was killed.
was not a
She
money belonged
individually,
and this
could
and,
her
justification mitig’ation
no
case
be
defense or
killing
against
for
the minor
defendants
children
father,
(b)
permitted
show
were
Defendants
general reputation
Tom Collins
be-
for
negro.
dangerous
a
turbulent and
This is
violent,
incompetent. They
proved
not
that the
could
de-
reputation
ceased
dangerous
a
a bad,
Ollie
had
bad
for
showing
without
man,
first
acted
self-defense.
Mo.
Zorn,
30;
Harris,
20'2
State v.
State
553;
State v.
refused to strike out
admitting
objections.
after
it over defendants’
This
incompetent.
clearly
Avas
Whether defendants were
guilty of
crime
and would or would not be bound over
preliminary
ain
liability
could not affect the
of these
action,
(f)
in civil
per-
court erred in
mitting the defendants’ counsel
ask,
and
*5
121
Yol.
1922.
TERM,
OCTOBER
Earls.
v.
appre-
question
as to what defendants’
answer,
v.
Renfrey,
White
'544;
hensions were.
v.
Mo.
79
Nichols
per-
refusing
Moxey,
(3)
64
erred
Mo. 560.
The court
Renfrey,
emptory
v.
Nichols
instruction
self-defense.
when
prima-facie case
Gray Earls. con- identity, by his refused to make known his then duct thief, led defendants to believe he was such had a is him.” to This instruction shoot noth- that clear defiance of the law of this case facts and (d) 10 further Instruction need he it.' said about reputation jury neg’ro tells had a had that thief being dangerous then the for a violent man, determining should take in fact into this consideration Gray. appearance the reasonableness of the McKay Bragg Medling, & E. E. Doerner G. E. respondents. for
(1) supported by judgment fully The is verdict having Respondents both the tes- law the evidence. Gray tified at conduct movements and having time fired killed 'his hiin, shot apparently pockets, refusing hands in in his his conduct hands,'certainly gave to throw his them reasonable apprehend danger, cause immediate and the appearances. act those cor- This is also by appellants, roborated the witnesses for all which advancing Gray shows in was a side-wise movement respondents threatening toward in a The attitude. rule applies rights in criminal may cases as to the to take life equal damages be resulting with invoked in a civil force for action justifiable from death. A homicide person committed on a Cyc. defense of himself. 13 Englehart, 327; McClure v. 33 80; S. W. Yawter v. Huitz, Maxey, 112 Mo. 633; 64 White Mo. Becker v. 552; Sale, App. 8 Mo. (2) 211; Croft v. Smith, W. S. 1089. admissibility court did not testimony, err (a) having permitted The witness been asked to answer plaintiff for that deceased a was man of no means, competent surely cross-examination it just was to show property including what did have, insurance he estate, may left (b) children or his The re- pleaded spondents contributory negligence in their an- sought swer, and to show the Gray statements TERM, OCTOBER Vol. y. Earls. shot, immediately after he he was shot and time failing negligence in injury due to own put speak failing himself known and to make hands, permitted rightfully (c) Defendants are
his
prove
the, negro
reputation
general
having
Respondents
dangerous
offered
compe-
man.
a violent or
it was
acted
self-defense
evidence
jury in deter-
taken
consideration
tent
into
apprehensions at
mining
of their
reasonableness
(d)
made
statements
time
gestae
part
immediately
of the res
after the
*7
respondents’
corroborating
competent
testi-
and was
respon-
permitting
mony.
(e)
There
error
was no
Gray,
testify
why they
for this testi-
dents to
part.
competent
mony
on
State
show motive
their
was
LINDSAY, C. On 25th 1919, gunshot Gray died as the result of in- one Ollie wounds day respondents. upon by him on that flicted On June appellants, minor children deceased, 16th, brought damages suit for sum of this ten thousand by County, in the Court of Circuit Pemiscot dollars, appellants, guardian, the mother of and widow of Ollie Gray, brought had not in her own behalf suit on who ac- death of her husband. of the There was a count verdict by jurors, judgment ten appealed by plaintiffs steps due thereon taken. charged petition “wrong- The the defendants discharged gun fully” against a loaded fired at and Gray, “thereby wrongfully any just and without Ollie OF MISSOURI. COURT SUPREME
Gray v. Baris. Ollie injuring wounding cause or excuse injuries acts wounds and unlawful from which The immediately died. thereafter defendants” petition charge negligence, forth nor did it set did not shooting particular under which circumstances by separate answers filed was done The defendants. Each were in character. identical consisting plea (1) general (2) a a of self-de- denial, (3) plea shooting killing fense and that the negligence of Ollie caused and carelessness specifica- directly contributing thereto. There was constituting tion facts either of these Plain- defenses. general reply objected tiff’s denial. Defendants grounds to the introduction evidence, petition against that the failed to state a of action cause either defendants, or them, and there a mis- joinder parties objection defendant. The was over- excepted. ruled, night, occurred at and near the cabin negro. persons present of one Tom Collins, defendants Ed Stout and Alvin Earls, man named Ollie Hannah, Tom Collins. All of them had crops in one enclosed field of sixty about one hundred and adjacent acres cabin of Tom Collins, and all lived *8 nearby. negro This had been corn from the they fields of the watching others, and had been to catch stealing. All him four of watching them had been the negro, night on the afternoon and day before the day on night which the occurred. theOn be- they pulling him fore, heard Gray’s corn in field, and heard later being the as sounds of a sack thrown down feeding hogs. the and Defendant Earls testified that on that occasion hog pen heard near the the sound talking, Gray and Ollie said it was “Knox and Tom,” being negro living Knox also and near to the other. They agreed again to watch following night. On the next afternoon Hannah and negro Earls watched the Tom Collins, and noticed he was wearing a white shirt. arrangement was that the four of them should meet ' TERM, Yol. OCTOBER night be- place again night, met the they, had that with armed Hannah, all fore. The guns, and upon, agreed which night place to went Stout. appears of defendant to been in field join Gray appearing did not For some not Ollie reason Earls that afternoon On there. He went alone. them bring says going and to Gray they armed told were he gun, replied of commission. out was promise get suggested not one, Earls he apparently into his own unarmed, do so. He went negro. others The three of corn watch for field point negro far from for the Tom Collins watched Gray. field of Ollie cabin and far from the from his sing- negro, came out Collins, o’clock the eleven Toward sixteen-year-old say, ing. They like him “I feel heard ’’ Gray, tonight. corn field Ollie He went toward the of. pulling They one corn. heard a sound-as some they expected negro up path by to a moved which hearing way, he did not return return, but, as negro’s hog pen, near house, sounds hogs being were down, fed, thrown corn way. up moved Earls Hannah told hearing, hard of was Stout, sounds, fendant who might placed him between themselves so hear They They was said others. went forward. what coops piled up, where there some boxes or came to very some trees about. there were It was dark. As passed the boxes saw forms two men. was nearest Tom Collins who ad- Hannah, gun quickly negro, and threw his down on vanced telling him to hold his hands. This the did, ‘ ’ ‘ ’ up, They saying, are Hannah. Mr. This was heard right, who was and nearer than Earls, Hannah proved Gray,- the man who to be Ollie who negro. of and several feet distant from standing, slowly who Earls was nearest walking moving time. The at that two up, *9 guns (Gray), presented man other and Earls your up four times, three or “Throw called hands” or COURT SUPREME OF MISSOURI. by Stout, up your was heard Tom.” This hands, “Stick chiefly directed Hannah, whose attention and also negro. side, his hands down had his to the pockets, in his too tell whether were it dark to dark clothes. He was blue or or not. dressed ' happened from Stout described what defendant the two as follows: men, time saw anybody distinguish was, “I who could not could because it was dark and I there, man I saw over anything say only I the bulk of the man. didn’t tell up your (Earls) say, I Alvin him. heard ‘Hold put four or Then this man hands,’ times, five ‘Tom.’ his pockets When hands his came toward us. he pockets.. hands in moved he had both his I never heard anything*. guess say him When the shots fired I he within nine or ten feet of somewhere me. I shot thought negro got because I he was the and if he to the get I he house considered would us me, if he could.” Cross Examination: ‘‘ night; It was dark I could’t tell then whether it nigger. white man stepping was a He was kinda fronting walking us, towards us. He was kinda down us in direction of towards house, I was get he afraid would house and shoot me. I hardly don’t far know how he would have go had to nigger’s I might where saw him over house, maybe twenty, been feet, fifteen somewhere between ten twenty feet, I didn’t measure I best could it.. walking sideways tell he was kind of toward the house, boys. facing but still us He gun have in his he pocket; hand, had his hands the best I could pockets. tell were in I shot thought because I got to if he house kill would us say all. I can’t ; gun he had on him. . . sawI the man that was coming towards and I me, didn’t hear say anything. him sir, I heard Yes, Earls tell him to stick his hands four and when times, and then he didn’t stick his hands Earls shot, I shot.”
The defendant Earls described as follows: *10 TERM, Vol. OCTOBER Earls.* heard and we little while some there for “We waited like a he felt np singing nigger aronnd, come heard ont and we sixteen-year-old, he and then went field. was Ollie’s breaking which field, ont in the him corn lot—crossed of the in front over nigger’s then crossed We leading path yard, was a there corner nigger come thought would have to that we there by. wait- get come After didn’t there and he us to hog corn in the ing him throw his we heard there awhile the left and we yard. took to pen Hannah Mr. I can there the best men seen to the two taken —I proved was later to Ollie the one that and recall, way me, as came standing from I like out down way. him I Tom called boxes around around says up hands. that time his I him to stick and told —at way (indicating)— began of sidle down this kind he put him four or five times to call on I continued it. and he didn’t hands, his do anything?” A. He He didn’t. do “Q. Did he directly he was out front but when answer, made no longer, chances risk no like I had I me I felt After we shot he Ed fired. fired, said, I fired. When ” wrong man.’ ‘You one shot at I was “I fired Ollie. Examination: Cross him and it awful was dark. I feet twelve about couldn’t pockets, positively tell his hands were (indi- down here were hands down— cating) feet within twelve of these fellows I walked up your got there I ‘Throw hands’ said, when I called on him four or five it, times; he didn’t do I long possibly as I could like I waited as wait. I felt I steps got- judge us; or seven toward he made six he got up with he us,- even when about even he ten backing down the side of the fence. He kind was where, say can’t all; have seen I he could us he was look- (indicating), backing way this he was us; got up say me I fired. close to I couldn’t he going anything' like he do on us came he I thought backing up thought I would; he was he to shoot. SUPREME COURT OF MISSOURI. .128 gun. He not come on to lie did No, sir, did me. He never said word about He made no threats. hurting me shoot, actions caused me; 'sidling way down that re- in, the actions that he fusing I him. never asked him to do I No, sir, what told his name.”
Defendant in the course his cross-examina- Earls, tion, also testified: *11 say your up
“I heard Hannah ‘Stick hands,’ Mr. nigger say, up, ‘They heard the Mr. Hannah.’ and I are nig- I Tom Yes, ger, naturally and I was the sir, knew Collins knew popped my in mind—knowed this other nigger thing. nigger one same with white shirt on about four feet from other fellow judgment being paying my dark. If I had been at- — I tention could told one these men that, had on a white shirt.”
Hannah testified: ‘‘Before Earls I went out just told Mr. Earls there I when we were time— going nig- said, around there-—I don’t ‘Let’s .shoot these got gers, we haven’t to shoot them,’ and Earls drag nigger said, we will make that ‘No, that corn to ” Gray’s.’ Ollie Hannah testified that before went toward was, where had heard the sound of two parties talking, sup- and did not who know were, posed negroes. escaped Tom Collins in the by appears confusion, caused in no more But, case. at him Earls shot as he was escaping, (Earls) and after he he Gray. knew had shot objection plaintiffs, permitted
Over the court prove plaintiffs’ by the defendants to on mother, cross- indemnity examination, that she collected double policy life for insurance one thousand dollars, hav- indemnity a clause of double case death ac- being beneficiary policy. cident, she sole under the plaintiffs’ objections permitted Over court defend- general reputation ants show the of Tom for Collins being dangerous negro; a turbulent and show what Yol. 298] OCTOBEE TEEM, 1922.
Gray v. Baris. why Ollie he said lie as to after was taken home did not demanded; throw his hands when it was during what he show in the which he lived hour or so after that he did not taken home, the effect plaintiffs blame mother of defendants; to show what'the preliminary hearing said as to a defendants before justice being permitted necessary or her; desired testify appre- each of the to what his defendants to plain- hensions were at ‘time of which shot; all complain. tiffs here plaintiffs
At the close of the case in- asked an pleadings struction, numbered that under the “A,” finding the evidence, the be for could not defendants on plea give, self-defense. the court This refused to assigned and the refusal Failing here error. plaintiffs gave this, then asked the court six other plaintiffs. instructions for jury,
Plaintiffs’ instruction numbered 1 told the if the Ollie killed verdict plaintiffs, provided should be for the defendants did not act therein self-defense *12 as other defined instruc- tions.
Instruction 2 numbered was the measure of damages. jury
Instruction numbered told that defend- killing shooting'and Gray justifiable in ants were not theory, except any that of self-defense, and that it was no defense that defendants mistook Ollie person, another believed he was another, and did not shooting they him. know jury although
Instruction 4 numbered told the that Gray approached nighttime Ollie defendants searching he knew were armed and negro, for the identity known make his to did not them, justify who he these was, did not know facts did not their unless some him, movement or act of to had cause believe and did believe he was great bodily take about to their ‘do lives them harm, Mo—9 SUPREME COURT OF MISSOURI. from themselves defend to acted thereon and defendants danger. apprehended such had defendants if jury that Instruction 5 told the intended apprehend that deceased canse to reasonable bodily bnt harm, great them their lives or do to take then there manner, careless fired in reckless and find jury could case, no self-defense ground. on that for defendants jury that if Instruction 6 told they intended presumes part, in vital the law Ollie probable consequences act, natural to his 'life. take intended gave instruc- the court behalf of the
On and 10 follows: 7, 8,.9, tions numbered ‘‘ under the law The court instructs person any right private to arrest citizen has violating are law. You whom see the act of in- had been if defendants therefore instructed negroes their corn been formed that some had neighbors, their fields corn of their or, pulling negroes in said defendants heard field said premises them to their where corn and followed heard them throw a sack of defendants had corn, down negroes making to arrest ar- said such use such reasonable rest force as necessary apprehend negroes. you said And if fur- persons ther find that defendants commanded the their hands and consider themselves raise and under arrest persons one of refused to raise hands you but advanced toward then in- are person structed, the conduct such such apprehend design part cause defendants on his personal great injury do defendants some or to kill fendants, them, either then defendants had *13 right against to defend themselves such dan- threatened ger by as is defined the instruction herein. ‘‘ jury 8. The danger instructs court that impending person is threatened compelled and is not to arms folded stand until it with is too late strike, ' TERM, Yol. OCTOBER permits and fear, on reasonable the law him to act ap- canse in this if reasonable case, the defendants had thought prehend Gray, to be whom Ollie you think said if the defendants thief, find design Gray them, do to be thief, injury, personal great either of them, some apprehend immediate there was reasonable cause to danger accomplished, design being then defend- of such right appearances kill ants had to act prevent design accomplished, kill- and such such justifiable, turn would be it should afterward altho appearances danger un- out that false and were your finding founded, and be for the defendants. should ‘‘ you 9. The find and be- are instructed that lieve from the evidence in that defendants and this case, Gray, agreed go in of a deceased, thief, Ollie search stealing whom their corn informed had been pursuant from the fields of defendants and others; that agreement, to such atmet, one Hannah place agreed upon; the time and that deceased, Ollie Gray, place agreed failed to meet at the the time upon, that defendants and Hannah said went search agreement of said thief with accordance said feeding hogs came said thief the act of. to his you corn stolen then him; are instructed that defend- ants thief. said Hannah had the lawful arrest said you ifAnd further Gray, find that deceased, Ollie identity failed and to make known refused to the de- fendants, led conduct defendants to believe that he and that the thief, defendants or either of them fired the fatal shot killed under the honest belief said was one of the thieves who you had been against then corn, cannot find you either will defendants, find the issues in providing you this case further find justifiable shooting Gray that defendants were as de- given fined under the defining instruction in' this case of self-defense. determining In “10. ap- reasonableness of the' *14 MISSOURI. COURT OF SUPREME
Gray Earls. -shooting time, of pearances of the the to defendants at reputa- Cray, the consideration the should take into providing*you defendants to find thief, tion of the negro thief, at time that believe the dangerous man.” violent, a complain instruc- of of defendant’s each Plaintiffs wrongful petition charging shoot- in a here, tions. charging ing in of Ollie and that the death wrongful by unlawful acts the and caused the Pleading charge negligence, failing and in charge only shoot- of an unlawful as be construed can shooting. negligent distinguished merely ing, from a part present pleadings in an issue here Therefore, McLaugh- petition by in the case of answer and made recently in this decided 656, 296 Mo. Marlatt, lin v. there and held, in of what was and Division, view disposition some reference to case, in be made this McLaughlin necessary. Case the seems In case that petition shooting. charged and unlawful intentional an shooting pleaded malice that the was without The answer neg- contributory pleaded also' unintentional, on his own ligence. the-defendant, farm, In case grass. thinking grass, there was fox shot into ordinarily forbidden, harmless one act was His by look and failure to he did not except haste shooting. plaintiff held It was that the before see negligence plain charged in “a pleader should constituting the facts cause of statement concise shooting plaintiff. intentional an and not action,” holding Oonway Elder, The decision shooting charge could unlawful sustained plaintiff shooting defendant cast proof showing was done with- the burden latter part, must or, careless, show the fault out was overruled. mitigating circumstances, between difference material case at ais There McLaughlin Conway cases. It consists bar private persons that these fact in the whom intentionally man, were assum- OCTOBER, TERM, 1922. Yol. felony, take for hut, an offense below identity whose connection with offense
Authority uncertain, were at the time and were in to Arrest. fact com- mistaken; and the offense was one pleted, presence. and had been committed *15 plaintiffs, The various theories, of the of defendants the sufficiently and of the by court are indicated what has recognized negligence been outlined above. There was in-instruction numbered 5 for plaintiffs might have “fired” the “in shots reckless and careless something grave manner.” The case involves more than negligence, mere or carelessness. negro, larceny which the Tom had com Collins, petit larceny.
mitted, [Sec. R. It 3324, 1919.] S. complete, hogs and the corn thrown to the before the directly went in search of him. The same govern facts and reason would the be offense con provisions sidered as which one to of Sections 3385 apply. and 3387, Revised Statutes would 1919, Under person possession prem Section owner or 3387 the in may “any person ises warrant without arrest in found perpetration the actual offense in mentioned maliciously, wilfully is, Section 3385,” or wan tonly right entering premises and without of another taking carrying any “grain,” away (cid:127)and etc., growing In thereon. case either the offense was not presence in the committed nor did perpetration find in the actual it. This is negro, only negro so, because this Tom Collins, person, appears or as from the record, whom suspected or watched and followed as one yet, apprehend corn, undertook to this negro, and found two men, were not because of able, the identify distances and other darkness, circumstances, assuming
this before to take two men. In Wallis, 101 Brown v. S. W. the Texas Court Appeals quoted Hughes Commonwealth, Civil v. 41 (Ky.) W. 296: S. “ presence £In the of’ in means in statute, SUPREME COURT OP MISSOURI. Earls. sight of, or that the manner' act he done such sight hearing officer can it detect or act of say, that he accused. That is to it not sufficient seeing hearing officeris within distance the criminal thereby knowledge act and obtains but he fact, by sight hearing must also able to as the ‘detect ” act of the accused.’ People See also Bartz, Mich. 493.
These were cases wherein the arrest was made or attempted police peace. officer for a breach pointed
No statute has been out or found authoriz- ing private persons to make arrests the circumstances powers here Police officers shown. cities have certain applicable cities, under statutes classes, various “peace empowering but, officers, absence of an authority have no statute, to arrest an individual for a process, except misdemeanor without is, view; perpetration *16 witness the of the offense.” App. citing [State ex rel. v. 101 Mo. Dierker, State App. Mo. 19; v. 73 Hancock, State v. Underwood, 75 Mo. v. State Mo. State 230; Grant, 236; 76 v. 86 Holcomb, Mo. presented, in the situation 371.] Also, the manner in proceeded undertaking which defendants to arrest person thought by to catch the them or to be one two necessary to men, is be since considered, defendants in- justification voke the doctrine of arrest of their acts. Mo. [State Rollins, 536; v. 226 Secs. 3913 and 3914,R. S. They gave identity no 1919.] notice of own or their purpose up your other than in the demand, “Hold suddenly in the made darkness. hands,” adapted An make reasonable officermust disclosure, purpose, of his character and circumstances, to the person against expecting it the whom he make is .to supra; [State act. v. State v. Rollins, 75 Underwood, Spaugh, l. c. Grant, 76 Mo. v. 238; 247; Mo. State v. State The 601.] l. c. defendants’ owed at least an 200 Mo. equal against person duty to the whom were mov ing. much evidence wanton Their own tends show a disregard duty. 135 1922. TERM,
Yol. OCTOBER involuntary quicker an exclamation A wit, might cannot him; it nevertheless, have saved deceased, shooting proceeding be him in a to arrest negligence was manner here cause, shown, only, The and intentional. unlawful and enforce did not have the make lawful presented,- under circumstances mand, case and testimony beyond other that, strongly they shot because to show that tends thought negro, throw was a deceased appearance although im- there hands, danger so, the themselves. mediate If resistance, indiffer- reckless wanton, and showed such rights ence of others constituted an unlawful to. thereof. invasion “intentionally,” petition not use the word does language taking actually con- it must be
but, used, “wrongful charging inten- act” strued as tionally necessarily in the done. This includes malice sense in ehich term is used in the law. Intentionally. personal to- not be ill will need injured. general party may ward the nature, It aof injury may. may let fall where it It be wantonness disregard rights or reckless others. [McNamara Lippincott, v. Co., 681; Transit Mo. Trauerman v. App. al- 27 Mo. Ambs, 28.] Goetz v. 486; legations petition to- and the evidence considered McLaughlin gether distinguish it from the case Maxey, Marlatt. also Mo. See White peremp- refuse Plaintiffs contend it was error to tory instruction and that there self-defense, asked *17 self-defense in Under the facts the record case. only right self-defense been defendants’ a could have right
qualified imperfect It is lawful at most. not undertaking to for a arrest misdemeanor Self-Defense part attempts to shoot the because he escape, person may resistance and a make reasonable illegally. attempt an to arrest him Granted that brought yet they purpose, felonious fendants had no n SUPREME COURT OF MISSOURI.
about though, an unwarranted situation, and perilous peril in imminent they may have believed shot are him in that deceased, belief, not wanton- wholly justified account. If recklessly, there was no self-defense. ly [Nichols should have Winfrey, The instruction 403.] been given. first The to the defendants:
As instructions All sentence of Instruction too broad in case. 7 is is the effect saw, defendants only spoke heard and of one negro, Collins, Tom as the instruction corn, through- uses the number plural in effect, out. tells It, though Misleading Instruction. private persons other the defense had a yet the defendants private persons had both of arrest them It and for misdemeanor. embodied it that commanded deceased under consider himself used arrest.. no such language. There was not of testimony a word they or Hannah said anything about an arrest. instruction was misleading erroneous.
Instruction 8 tells the jury that defendants were compelled to “stand with arms folded until was too late to strike.” The instruction follows language the instruction in Nichols v. Winfrey, Mo. l. c. where the' deceased continuously was' Apprehended Danger. aggressor, defendant, and the in his own store, shot while was advancing deceased after having already struck defendant. adap It ted to the here circumstances unfair shown, prejudicial to defendants. It tells the de jury that fendants had reasonable cause to apprehend immediate danger from Ollie whom thought abe negro thief, had a appearances to act on kill Gray, and justifiable killing would be without further qualification. This substitutes Ollie literally Gray for a negro thief. It and not based confusing on any evidence or the actual situation disclosed:
Instruction 9 recites the agreement. of defendants *18 Yol. 298] 137 OCTOBEE TEEM,
Gray v. Earls. search, go and Ollie to meet and in a thief, premise contains the that if and one Hannah npon hogs feeding came said thief in the act corn to his hy stolen then Hannah him, defendants and had con- to arrest thief. This assumption tained not evidence. an tóFactfana Law. testimony There came upon the thief the .act mentioned. act com- plete negro yard. and the had to his in- returned assumption struction contains the further that if identity, failed and to make led refused known his defendants to believe he thief,” was “the and defend- fired in ants honest belief that he was “one of ” they against provided thieves, not could find justifiable defendants were him under defining instruction in- of self-defense. The confusing misleading, struction as a whole was assumptions contained evidence, fact shown assumptions undertaking unwarranted of law, wholly justify defendants. 10 judging
Instruction that in told appearance Gray, the defendants could take into con reputation negro, sideration the of the Tom Collins. The testimony of defendant Earls shows that before he shot, ^ieard Hannah tell to hold Reputation reply, up. “They hands heard the are says negro. Mr. Hannah,” and he knew He shot anyhow at the other man, and defendant Stout, nearer than he immediately to Hannah and Tom Collins, testimony after. Under the themselves, reputátion it is not seen how the had could applied he thus to the other man, Ollie who defend say ants had no They arms, no threats. made do they thought not claim negro, believe the man was a and whom shot, had arms him, about hut, g;o away twenty feared he would into the cabin feet showing afterwards shoot them. With no acted in self-defense, this instruction should given. been [State v. Harris, 553; 59 l. Mo. c. State
138 OF MISSOURI. SUPREME COURT l. c. Mo. 30; Coleman, l. c. State Zorn, Mo. reason 157.] For the same
reputation excluded. have been should of Tom Collins testify col she
Allowing plaintiffs’ mother to indemnity policy, double with its lected the insurance payable alone, her clause in of death accident, case part estate error. It formed Insurance. Life proper allow it Nor was deceased. questions calling for conclusions defendants to answer thought why they man fired, or what as to apprehensions going were. what their or do, saw was damages. [Nichols suit for error This was this v. Maxcy, Winfrey, 552.] 64 Mo. 554; Mo. White require permit mother or It -error to pre- testify plaintiffs wanted whether she as to or liminary hearing Her wish not. opinion subject time at a former on that Mother’s Wishes upon plain- binding was in no wise Opinion. preliminary hear- tiffs. The result justice could not conclude of .defendants before plaintiffs or [State either defendants in action. this error For like reasons was 159'.] Coleman, plaintiff’s permit testify witness to what mother as to blaming preliminary, the time as to not about the defendants. being-
The statements while taken home of Ollie reaching defend- home, and after he did blame speak why
ants, did not did not know dying being shot, before were not offered as ofaDeceased. gestae, were not of declaration, the res been this should not have admitted. For the rec- to, errors referred the whole judgment re- ord, reversed, should the cause manded. It is so ordered. G,, Small, concurs; Brown, sitting. C., not
PER CURIAM : n opinion foregoing of Lindsay, adopted hereby opinion C., is as the All of of the court. judges concur.