258 Mo. 479 | Mo. | 1914
At the September term, 1912, of the criminal court of Jackson county, defendant was tried and convicted of murder in the first degree for the killing of one Robert Marshall, and his punishment assessed at death. The homicide occurred near the corner of Nineteenth and Grove streets, Kansas City, Missouri, at about 11:30 p. m., August 10, 1912. Deceased was a colored policeman. Defendant is a negro and was about twenty years of age at the time.
Just prior to the killing, defendant was standing on the sidewalk, on the south side of Nineteenth street, a few feet west of its intersection with Grove street, talking to one Nadine Monroe, a negro woman, who was standing in an adjoining yard. At this time two negro policemen, the deceased and Thomas W. How-' ard, dressed in plain clothes, were patrolling the street together and came up to where defendant was standing. Officer Howard testified for the State that he was not acquainted with the defendant at the time of the occurrence, but knew him by sight, and that as he and deceased came up to defendant, witness asked the defendant, his name and where he lived. Defendant relied that his name was “Ted Smith” and that he lived -down on Sixth street. The witness saw a big bulge on defendant’s right side, under his waistband, and, on account of this, he told defendant that “they” were police officers and that they wanted to search him and told defendant to throw up his hands. Witness also testified that at the time he told defendant they were officers, “I done my coat like that [indicat
Witness said that they did not have a warrant for defendant’s arrest, but that they had orders to search persons that looked suspicious. Later the witness was recalled and testified as follows: “Well, when Officer Marshall and I came down the street, I was told there was some shooting over in the jungles, that a white man got held up over there in the sand yard. We went over there, and we seen this boy there, and I saw that bulging there. I had kind of a suspicion that he had a gun and I went to searching him. ’ ’
After the witness went down to where the shooting occurred, he went up the stairway and through the building and down the back stairway into the back yard where he made an unsuccessful search for the defendant.
Virginia Childs testified that just before the shooting, she was standing on the northeast corner of Nineteenth and Grove streets and saw the two officers approach the defendant across the street from her; she could not hear what was said but she saw the officers talking to defendant and saw Officer Howard fall and the defendant run, pursued by Officer Marshall; that defendant ran around the corner and turned into the stairway at 1910 Grove street. Witness did not know how many shots were fired but stated that most of them were fired by Officer Marshall and that she thought Officer Marshall fired the first shot; she did not know whether deceased shot to hit defendant; that she ran across the street toward the stairway up which defendant had gone and that she heard deceased say “Come out” once, and that she also heard him say “Bring me a light, Maud.” That a short time after defendant went into the stairway she saw a flash from defendant’s gun and saw deceased fall. The witness afterwards saw two bullet holes in the door near the stairway. After the shooting, the witness and a man by the name of Ward went down to the hotel where defendant was staying and that defendant said he was going to St. Joe; that at defendant’s request she went down
Lilly Marshall testified that on the night of the homicide she was sitting out on the front porch at 1910 Grove street, about 11:30' p. m., and saw the defendant come running around the corner with the deceased running after him and that deceased ordered defendant to halt and fired a shot in the direction of defendant and that thereupon defendant turned into a nearby hallway and ran up the steps. Deceased then fired two more shots and asked the witness for a light. Witness took a lamp to the door and deceased exclaimed “Look out.” Witness shut the door and then heard two shots fired after that; that defendant fired two shots and that she then heard him go down the back stairs; that the witness then returned to the front door and found Officer Marshall dead. After deceased quit shooting, the witness heard two shots fired from the stairway.
J. L. Ghent, a city detective, testified that he, with twelve other officers, arrested defendant at 1410 West Twelfth street in Kansas City; that the defendant made no resistance to the arrest after seeing the number of officers that were present; that after defendant was taken to headquarters he admitted that he had shot Officer Marshall and that the reason he had shot him was because he did not know that he was a police officer and that as he went in the stairway he fell and fired one shot at the bottom of the stairway and then
Dr. Czarlinsky, the Coroner, testified that in'his official capacity he viewed the dead body of Officer Marshall on August 11, 1912, and found the bullet wound upon the body of the deceased about two inches below the collar bone and about one-half inch to the right of the middle of the breast, and that a post-mortem examination showed that the bullet had pierced the ascending aorta and had dropped into the pleura cavity and that the pleura was filled with blood, indicating that deceased had died from the effects of the bullet wound.
Alexander' J'ohnson, a city detective, testified that defendant told him that, “He killed Officer Marshall and that if he had been out he was going back to kill Officer Howard; that he was after Officer Howard more than he was after Officer Marshall.”
Defendant took the stand in his own behalf and testified that he was a laborer and that on the night of the trouble he was standing near the corner of Nineteenth and Grove, talking to Nadine Monroe, when the deceased and Officer Howard approached; that he had never seen either of them before' and did not know that they were police officers or officers of any ldnd. That neither of said officers told him that they were police officers or that they were officers of any kind and that Officer Howard did not show him his star; that Howard asked him his name and that he replied, “Ted Banks;” Howard then said, “That isn’t your name,’’ and'said: “Throw up your hands, let us see what you have got on you;” and that Howard then caught him by the arm and “snatched” him out on the
On cross-examination, defendant was handed a written instrument marked “Exhibit B,” which purported to be signed by him, and he was asked if the signature was his and he replied that it was. Thereupon, over the objection and exception of defendant, the State was permitted to read into the evidence the signed statement of defendant which was as follows:
“K. 0. MO. 9/3/1912. Prom Teddie Banks. Ward and I pulled off a job worth $55' out on the Santa Pe railroad just below where the Independence car crosses the track, these people were colored, one of the men there was blind, the old woman was old and had one eye and the man was old and sick, at the time which was the 4 or 5 of Aug, or on the night it rained so bad in the early part of the month. We also pulled off two or three jobs of highway robbery around Tracy and 19th and Harrison sts, dates I don’t remember but they was in July last past and 1st of Aug, This house was on the south side of the track near the sand yard, below the show grounds. We also held up two men on the Southwest Boulevard on the bloofe driveway near Allen ave, and two on the 24th st during July 15, 16 or 17, or near that part of the mo. ’ ’
Defendant admitted on cross-examination that in October, 1909, he was convicted for an assault with intent to kill at Atchison, Kansas, under the name of
Section 5121, Revised Statute 1909; provides that “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.” But the officer is not justified in using unnecessary force in making an arrest. The rule with reference to the right of the person sought to be arrested to resist unnecessary force on the part of the arresting officer is stated by an able writer, as follows:
“An officer seeking to make an arrest may only use such force as is reasonably necessary to subject the person sought to be arrested to his authority; and where he goes further, and uses unnecessary force, the rule applicable to a private individual attacked by another, that if a person believes, or has reason to believe, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent, applies. ... A person sought tó be arrested may oppose a felonious aggression in the execution of the arrest, even to slaying the officer when necessary to save his own life, or to save himself from serious bodily harm.” [Wharton on Homicide, (3.Ed.), p. 621, sec. 401.]
The court did instruct on self-defense, based upon the theory that defendant did not know the deceased was an officer. That instruction will be discussed in the following paragraph.
“The court instructs the jury that if they find and believe from the evidence in this case that the defendant, Mannie Banks, alias Ted Banks, did not know that the deceased, Eobert Marshall, was a police officer at the time that the defendant shot deceased (if you find from the evidence that the defendant did shoot deceased), then the defendant had the right to shoot deceased if*492 apparently necessary to save defendant as defined in instruction No. 9. The court further instructs the jury that if the defendant shot Robert Marshall unnecessarily, or in knowingly resisting a lawful arrest, attempted in a lawful manner there can be no self-defense in the case.”
Instruction numbered 9 to which reference is made in the above instruction, was in the form of the usual self-defense instruction.
It will be noticed that by instruction numbered 8, the jury were told that “if the defendant shot Robert Marshall unnecessarily . . . there can be no self-defense in the ease.” This constituted error. By this portion of the instruction, defendant was virtually deprived of his right to act on appearances if he had good reason to believe and did believe that deceased was about to kill him or do him great bodily injury. It is true that in the first part of instruction numbered 8, and also in No. 9, the jury were told that if defendant had good reason to believe and did believe that deceased was about to kill him or do him great bodily injury that then the defendant had the right to shoot in his own defense, yet the clause above referred to, in effect, flatly contradicts his right to act upon appearances, and in a way nullified the other portions of said instructions. [State v. Darling, 202 Mo. 150, l. c. 165.] If a person believes he is about to be killed or about to receive great bodily injury and he has good reason to so believe then he has the right to shoot in self-defense, even though it should afterwards develop that the appearances were false and that the killing was, in fact, unnecessary. To hold that killing in self-defense could only occur when absolutely necessary would be to deprive defendant of his right to act upon appearances and thereby, in a large measure, destroy the right of self-defense. [State v. Sloan, 47 Mo. 604.]
Under the facts developed in the present case, said Exhibit “R,” was not admissible for any purpose, and the court, therefore, committed error in admitting the same over defendant’s objection and exception.
The judgment is reversed and the cause remanded.
The foregoing opinion of "Williams, 0., is adopted as the opinion of the court.