144 Mo. 638 | Mo. | 1898
Murder in the first degree the charge and verdict returned also for- that degree. George S. Elliott was thé' victim of the deed, and a shotgun the weapon. He had been prosecuting attorney of the county and drew the- indictment against defendant and the brother of the latter,'Joseph, for the murder of one Isaac Large, which indictment was found at the December term, 1896; and was such prosecuting officer at the time he met his death on the twelfth day of January, 1897, in the attempt to arrest defendant under the charge contained in the indictment aforesaid.
Looking through this record, various objections are made and exceptions are saved, which, in the absence of any brief or assignment of errors, in this court, must serve the purpose of such assignment.
2. The written challenge to the array was properly overruled, because it was sufficient that the venire facias for one hundred men was directed to the sheriff of the county and it did not have to be in the hands of the deputies, both of whom assisted the sheriff in summoning the number of jurors specified in the venire; and this was the ground of the challenge. And besides; the statute regulating the summoning of jurors has always been construed merely as directory. Samuels v. State, 3 Mo. 68; State v. Pitts, 58 Mo. 556; State v. Jones, 61 Mo. 232; State v. Knight, Ib. 373; State v. Williams, 136 Mo. loc. cit. 307, and cases cited.
3. As to the juror Bennett, one of the panel of forty from which defendantwas to make his challenges, he was a competent juror' under the ruling of this court in State v. Taylor, 134 Mo. 109; State v. Dyer, 139 Mo. 199. And if he was not a competent juror the exact ground of his incompetency should have been pointed out; the mere challenge "for cause” amounted to nothing, lb.
4. The instruction given by the court embraced murder in the first and second degrees, and also self-defense, and the effect to be given to threats alleged to have been made by Elliott against defendant, and taken as a whole follows approved precedents, and
5. The main and most important question involved in this record is now to be considered; it is as to the power of a citizen to arrest one charged with a felony. Intimately associated with this question, however, is the testimony of witnesses on behalf of defendant, which it is said shows threats made by Elliott against defendant, which testimony will now be set forth: Shankle testified: “Well, I think the best I remember it was about the 8th, the 7th or 8th, of January, that I met Mr. Elliott. I also met Mr. Albright the same day, James Albright the same day I met Mr. Elliott. I had a conversation with Mr. Albright and Mr. Albright agreed with me to come to town and give up ... if there was reward for him, and offered to divide the reward with me, providing there was a substantial reward, if it was good; and asked if I would see the sheriff of this county and see if it was good. I told him I would. I came to town and not finding the sheriff, not knowing him I didn’t find him. At the time I saw Mr. Elliott, I told him I wanted to see the sheriff, and also him. He says he would go to the sheriff’s office, either to his office or to the sheriff’s office, I would not be positive which. We went to the office anyway in this building here. I don’t know whether it is the sheriff’s office or Mr. Elliott’s office, and the sheriff was not in, and Mr. Elliott said the sheriff was not there; he asked me my business; I
Madrey, in his deposition taken in Tennessee, states that he had a conversation with George S. Elliott in Charleston, Missouri, about the twenty-fourth of December, 1896, in regard to defendant; that in that conversation the following occurred: “I asked him to raise a reward, and he said we have nothing to do with that; that I am going out after him in a few days, and all I want is to get a shot at him. I will bring him in. I don’t care just so he can be identified, how he is. That was all the conversation I remember of.” And that witness informed defendant of this conversation in about a week after its occurrence.
Defendant in reply to direct and answer-indicating questions, testified that Shankle and Madrey had both told him that Elliott had threatened his life. If, however, the testimony of Shankle, a witness for defendant, be true, and it is not denied by_ defendant, there was no threat couched in the language used by'Elliott to him, provided always that Elliott had the legal right to arrest defendant, because the power to make the arrest necessarily implies the power to take the person
We gather from the authorities that a private person may arrest another in treason or felony: “If in fact there has been an offense of either of these degrees committed, and the private person on reasonable grounds suspects a particular individual, he, acting in good faith, may arrest him'without incurring any liability, civil or criminal, should the suspicion prove unfounded.” Bishop, New Crim..Proc., sec. 168, and cases cited. Some of the cases seemingly intimate that an arrest in such circumstances is not justifiable unless the person arrested be proven guilty; but this is not the prevalent doctrine. Ib. To the same effect, see 2 Am. and Eng. Ency. of Law [2 Ed.], p. 885, and cases cited.
Hale says: “If A., a mere private man, knowsB. to have committed a felony, he may thereupon arrest him of felony, and he is lawfully in the custody of A. till he be discharged of him by delivering him to the constable or common goal; and therefore if he voluntarily suffers him to escape opt of his custody, though he were no officer, nor B. indicted, it is felony in A. So it is, if a felony be in fact committed, and A. hath a probable cause to suspect B. and accordingly suspects and' arrests him, B. is lawfully in the custody of A. for suspicion of felony; and if he voluntarily lets him escape, it is felony in A. in eventu vis., if B. proves really guilty of the felony.” 1 Hale, P. C. 595.
“If A. commit a felony, B., who is a private person, may arrest him for that felony without any warrant; nay, farther, if A. will not suffer himself to be taken, but either resists or flies, so that he can not be taken, unless he be slain, if B. or any in assistance in that
Elsewhere the same author states: “And now therefore I come to consider touching the arrests by a private person in case of felony. And this is of these kinds. 1. Where the party arrested hath really committed a felony, and this is known to the party arresting. 2. Where the party arrested hath really committed a felony, but it is only suspected, and not certainly known to the party arresting. 3. Where there hath been a felony committed, and the party arresting doth, upon probable grounds, suspect the. person arrested to have committed it, tho in truth he did it not.
“First. As to the first of these, where a person,, hath committed felony and A. knows it. It is true in this case, if the time^and nature of the fact, and the condition of things will bear it, it is best to complain to a justice of peace, and have his warrant, etc. .. .; but such the case may be, that the delay that must arise neces
“Second. As to the second case, viz., where a felony is committed by B., but A. that arrests him, doth not certainly know it, as not being present at the committing of it, I take the law to be all one with the former case, only what he doth herein he doth at his peril; for if in truth B. be a felon, then A. may arrest' him, and may break a house to arrest him, if he be within the house, and refuses to render himself; yea, and if he will not suffer himself to be taken, he may in case of necessity be killed; but this still is at the peril of A. for if he be no felon, it may be manslaughter at least in A. if he doth it. But how far forth this will be
"Third. The third case is, there is a felony committed, but whether committed by B. or not, non con-stat, and therefore we will suppose, that in truth it were not committed by-B. but by some person else, yet A. hath probable causes to suspect B. to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is, because if a person should be punished by an action of trespass, or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people. But to make good such a justification of imprisonment, (1) there must be in fact a felony committed by some person; for were there no felony, there can be no ground of suspicion. Again (2) the party (if a private person) that arrests, must suspect B. to be the felon. (3) He must have reasonable causes of such suspicion, and these must be alleged and proved.” 2 Hale, P. C. (76), (77), (78).
And “for the arresting of the body of a man by a private person, there must be some just cause or some lawful and just suspicion at least; and, therefore, when a man is indicted of felony, that is a good cause iovjmy man to arrest him.” Dalton, ch. 170, sec. 5.
Touching this subject of arrest by a private person, Bedle, J., says: “A private person is justified in arresting when a felony has actually been committed and there is probable ground to fairly suspect the person guilty.” Reuck v. McGregor, 32 N. J. L. 70.
Tindal, J., in Allen v. Wright, on this point gave this charge t*o the jury: “Where it appears, 1st, that a felony had actually been committed; 2nd, that the circumstances were such that you yourselves, or any reasonable person, acting without passion and prej
In the case of an officer, as sheriff and the like, the law enjoins on him as a duty to make arrest of one who has committed a felony, or one whom he has reasonable cause to suspect of having been guilty of a felony. 2 Hale, P. C. (85), (86).
The chief distinction between an officer and private person making an arrest in the circumstances above mentioned, is that in the former case the making an arrest is a matter of duty; in the latter, a matter of mere right. The only exception where it becomes the duty of a private person to arrest or attempt to arrest a felon, is where the felony is perpetrated in his presence. 1 Hale, P. C. 588, supra. Otherwise the officer and the private person stand on the same footing, and are equally under the special protection of the law when making or attempting an arrest. And it is said that a private person when making an arrest for a felony, must notify the felon of his purpose and that having thus notified the felon, he may kill him if he either resists or flies. State v. Bryant, 65 N. C. 327.
But it is said that if the felon have notice, aliunde, of such intended arrest, that this suffices. Croom v. State, 21 Am. St. Rep. 179.| Thus in Georgia, where one occupying the position of a private citizen attempts without warrant to arrest one charged in an indictmen t with a felony, the indictment being found three years before, but when all the circumstances showed that the defendant must have anticipated the arrest and realized the intention of the party attempting the arrest, and the defendant fired on the party attempting his arrest and killed him, it was held that the defendant was justly found guilty of murder. Snelling v. State, 87 Ga. 50.
6. Under the authorities cited, Elliott had the right to break open the door instead of merely knocking at it, as Jimmy Mattingley says he only did. And defendant knew for what purpose Elliott came to the door, as his statement made to Jimmy Mattingley shows; and this statement not having been denied by defendant, must be taken as conclusively true. Payne v. Railroad, 136 Mo. loc. cit. 594, and cases cited; People v. Dyle, 21 N. Y. 578.
7. Relative to the threats said to have been made by Elliott against defendant, it seems very singular that Elliott should have made them, and still at the same time asked Shankle “if he would not be kind enough to him to tell Jim Albright to come in and give up like a man.” Defendant does not deny that Shankle delivered this message as sent to him as stated by Shankle, and therefore Shankle’s statement is to be
In this case, though it is said Elliott had his revolver in his right hand while with his left he tried to open the door, yet he. was unaware that defendant was in the house and of course could not have done any overt act at the time he was shot. In the circumstances detailed in evidence, Elliott was as much slain from ambush as if he had been fired on by one in concealment by the wayside. We therefore hold that no instructions should have been given in relation to either threats or self-defense.
8. Thus removing all questions out of the way respecting self-defense, we have left the case of a private citizen proceeding after due notification to, and full knowledge on the part of, a felon, to arrest him. Inasmuch as a citizen in such circumstances is as much within the special protection of the law, as an officer in like case, the killing of Elliott was nothing less than murder in the first degree and therefore no instruction for murder of a less degree should have been given, and this apart from other considerations already mentioned in the nest preceding paragraph.
9. An instruction was asked by defendant in
Elliott then, possessing the right to make the arrest, it at once became defendant’s duty to submit. Where such duty exists, hot blood can not be engendered by making or attempting a lawful arrest, because in such case “passion is wickedness and resistance crime.” Brooks v. Com., 61 Pa. St. 352; State v. Duncan, 116 Mo. loc. cit. 312.
Holding these views and finding no reversible error in the record, we affirm the judgment and direct the sentence pronounced by the law to be executed.