14 Mo. 138 | Mo. | 1851
delivered the opinion of the court.
No question arises on this record, except the one growing out of the refusal of instructions asked and the giving of others in their stead.
The court gave no instruction to the jury in relation to the power of an officer to arrest without warrant, and this omission is the matter principally complained of. lit cannot be denied, that the legality of the defendant’s arrest was a material question in determining the character of the homicide. It is well established, that where persons have authority to arrest, and are resisted in the proper exercise of such authority, and killed, such homicide is murder in all who have taken part in such resistance. Foster 270; 1 Hale P. C., 465. On the other hand, where the arrest is illegal, the offence is reduced to manslaughter. Comm’th vs. Drew, 4 Marsh. R., 396. Three things it is said, must be attended to in matters of this kind; the legality of the deceased, authority, legality of the manner in which he executed it, and the defendants knowledge of that authority.,! It is unnecessary here to dwell upon the two last requisites, since the testimony was clear that the defendant was duly apprised of the official character of the deceased, @nd that the arrest was conducted with no unnecessary violence and
By the common law, arrests were permitted without warrant, in cases of felony, or suspicions of felony, and in cases of breach of the peace and other misdemeanors committed in the presence of the officers»/ So at the common law, a constable might arrest night walkers, or persons reasonably suspected of felony. This power of arresting without warrant has also been extended to many other cases in England by statute. These statutes authorize constables and other peace officers to apprehend evil disposed persons, suspected persons and reputed thieves. The stat. 32 Geo. 3, C. 17, empowers constables, watchmen, &c., to apprehend reputed thieves, frequenting the streets, highways and avenues of public resort and convey them before a magistrate.
The ordinance of the city of St. Louis in relation to the police of the city contain some provisions very similar to the foregoing. The ordinance No. 2364 declares:
“All able bodied persons, who not having visible means to maintain themselves, lives idly, without employment; or, are found loitering or rambling about, or wandering about and lodging in groceries, tippling houses, beer houses, out-houses, sheds or stables, or in the open air and not giving a good account of themselves; or wandering about and begging; or going about from door to door begging; or placing themselves in the streets or other thoroughfares, or in public places to beg or receive alms; all keepers or exhibiters of any gambling table or device; all persons who for the purpose of gaming, travel about or remain on steamboats, or go from place to place; and all persons, upon whom shall be found any instrument or thing used for the commission of burglary or for picking locks or pockets, and who cannot give a good account of their possession of the same, shall be deemed vagrants.”
The second section of this ordinance says, that any such person found in this city shall be arrested and taken before the recorder, &c., to be tried.
The ordinance No. 2410 provides: “It shall be the duty of the privates (policemen) to be punctual at roll call — to obey punctually the order of the chief of the police; &c. They shall preserve order and peace and quiet throughout the city — they shall arrest all persons found under suspicious circumstances, and who cannot give a good account of themselves, and convey all persons so arrested to the station house, &c. They shall have authority to enter any house, enclosure or other place where breach of the peace or crime, or breach óf ordinance has
The evidence in this case tended to show that this arrest was made under instructions from the marshal who isjhead of the city police — that this officer’s order was given, because the defendant had given his promise upon being discharged from an arrest for vagrancy to leave the city within a certain time and had not kept it; because, in the opinion of the marshal, the defendant was a suspicious and dangerous character; and because the marshal believed him to be a vagrant.
It is quite apparent that the breach of promise by defendant did not of itself warrant the arrest. The agreement between the city authorities and the defendant was not outhorized by any law or ordinance, and was void, and a breach of it was no offence.
It may be, however, that the defendant was a suspicious character; that he was a night walker; that he was found with burglarious instrur ments upon him; or in the actual commission of some offence against the peace of the city or some ordinance made in pursuance of the charter. It was the. province of the jury to determine this, under proper instructions from the court. If the-jury should be of opinion that the arrest was made solely because the defendant had committed a breach of promise with the city officers by remaining in the city limits beyond a stipulated time, the arrest was illegally
; We are of opinion that the legality or illegality of the arrest in this case might affect the degree of guilt of the prisoner, although we do not undertake to say that under the circumstances of this case, such would be the result. The general rule is, that a homicide committed in resisting an illegal arrest is manslaughter merely. Yet there may be sufficient evidence of express malice, even in case of an illegal arrest to ustify a finding of murder. R. V. Stockley 1 East P. C., 310; R. V. Custis Futer, 135; 1 Hale P. C., 465.
It is not competent for this court to say, that the arrest in this case as legal or illegal, nor is it in our power to determine that in either
The third instruction given by the court was proper enough; but it will be observed, that an attempt to coerce a man’s person is not upon the same foot in the eye of the law as a trespass upon his property. In the latter case, the use of a deadly weapon is sufficient to constitute the killing a murder, but this is not the law in an illegal arrest of the person. Comm’th vs. Drew, 4 Mass. R., 391.
The second instruction given by the criminal court must have been based on the assumption that the arrest was a legal one; although the court had declined giving any instruction relative to the legality or illegality of the arrest. The question, whether the homicide was committed under the prosecution of an illegal arrest, or not, was not submitted to the jury; although it was presented in several instructions asked on behalf of the defendant.
There was certainly very strong proof in the case to show great deliberation on the part of the deceased, and although we might not anticipate a different result upon a second trial — we feel it our duty to order one, on the ground that the instruction of the court did not put the jury fully in possession of the law applicable to the case.
Judgment reversed and cause remanded.
