State v. Evans

161 Mo. 95 | Mo. | 1901

SHERWOOD, P. J.

For the murder of William L. Hennicke, a policeman of Boonville, by shooting him with a pistol, defendant, a negro, was put upon his trial, which re-suited in a verdict of guilty of murder in the first degree; judgment and sentence accordingly.

The homicide happened on this wise: A number of business houses in Boonville had been burglarized during the month of March of last year, which closed the nineteenth century, nor did the burglars neglect the cigar store of Louis Bernard; it had been burglarized three or four times in succession, the last time the night before, and the cash drawer each time depleted of its funds. On the night of the twenty-sixth of the month mentioned, John Bernard, the brother of Louis, remained at the cigar store of the latter, and with Henry Winklemeyer, kept watch for the burglarious thief. He came about 10 o’clock and stopped at the front door two or three times for a moment, but seemed frightened away by passersby, but finally, after the lapse of a few minutes, went up the steps; unlocked the door with a false key, walked away, came back, opened the door, walked in, leaving the door open about two inches; stood at the door holding the latch, when he seemed to take alarm from persons passing by, and was about to go out again, when Winklemeyer halloed to him to throw up his hands, whereupon defendant ran out through the door, closing it behind him, Winklemeyer and Bernard followed in close pursuit, and seeing defendant in front of Dan’s drugstore, Winklemeyer shot at him once, when he disappeared. Thereupon, Bernard returned to the cigar store, closed it, and started home, when officers Hennicke and Jones called to him .across the street, asking him if he could recognize the burglar, when he replied he could; that it was “Jocko,” and on being asked which one, answered “the one that used to be on the bus a good deal.” Bernard knew the negro well, and had known him for three or four years; and the light was such in the cigar store from neighboring establishments, as to render recognition by Bernard of defendant, when in the cigar store, easy.

Winklemeyer, who was twelve feet from defendant when in the cigar store, though he had never known him before, had no difficulty in subsequently identifying him as the same man he had seen enter the cigar store. When Bernard was accosted by the police officers as aforesaid, it was about 10:15 to 10:20 p. m. Hennieke then said to Bernard: “Well, I have some other stores to watch to-night, but we ought to catch him, and so I will go down to-night, I know where he stays.” He says, “We will go down.” So officer Jones and Hennieke and Knack and myself, went down.

“Q. Adolph Knack? A. Yes, sir. *****

“Q. Where did you go? A. We went down to the house this side of the track, the old ‘Sandroek’ house, they call it.

“Q. You speak of the Missouri Pacific track? A. Yes, sir.

“Q. Where is that house situate with reference to the Missouri Pacific track — with reference to the depot? A. It is south of the track.

“Q. Just across the street is it ? A. Yes, sir, just across the street.

“Q. Now what occurred there? A. Why, we went down there and the officers knocked on the door. The woman didn’t want to let them in at first. She said she was in bed. So they told her they were looking for some one, to get up. She finally got up and opened the door and the officers went, in.

“Q. Where were you at that time ? A.. I was standing out in front of the house, or steps. And as they were coming out, why, Evans came around between that hallway — there is a hallway between the two houses — him and some more young fellows and some women. And he stepped upon the step, and the officers came out; they put their hand on bim, and I says, ‘that is the man.’ And he said to the officers, ‘I didn’t do anything.’ Hennicke says, ‘Yon will find out about it in the morning.’

“Q. Well, they arrested him there did they ? A. Yes, sir, he went, too, along with them. They walked down as far • as the track and went over to the Missouri Pacific depot and come up on the other side.

“Q. Now which side of that street would that be ? A. That would be on the north side of the street.

“Q. As they went up the street how were they walking with reference to each other ? A. Evans was in the middle between the two officers. Hennicke was on the north side of him, and Jones on the south side.

“Q. Well? A. Well, as they got in front of Deck’s property down there, why, Evans had a deck of cards in his hands. And he said to Jones, ‘Take these cards.’ Handed them to Jones; Jones put them in his pocket. As he did, Evans jerked down his arm as if to get into his pocket or something. Jones says, ‘No, you don’t.’ And then they began tussling.

“Q. Where is that Deck property with reference to the Missouri Pacific depot? A. It is east.

“Q. Well, how many doors ? A. Why, it is, I guess, one hundred and fifty feet from the depot.

“Q. This occurred about that far then from the depot ? A. Yes, sir.

*“Q. Which hand, if you remember, was the deck of cards in ? A. Why, it was in this hand, the right hand.

“Q. Well? A. And they began tussling, and Evans pulled them into the alley.

“Q. How does the alley run there, Mr. Bernard? A. Runs north and south.

“Q. Crosses Morgan street right there? A. Yes, sir. And they tussled up into the alley about fifteen feet and began tussling there against the fence, and swayed back, and finally a flash and a shot fired toward Jones, and a flash and the report was to Hennieke. But the first report was louder than the second report.

“Q. At this time where were you ? A. I was standing at the mouth of the alley facing them.

“Q. They were, I understand, about fifteen feet in the alley perhaps ? A. Yes, sir. * * * * *

“Q. Erom where you stood could you see the direction of these flashes ? A. Yes, sir.

“Q. The first one went which way? A. Towards officer Jones, and the other went towards officer Hennieke.

“Q. The first then was towards the south was it? A. Yes, sir.

“Q. And the second towards the north? A. Towards the north, yes, sir. ;

“Q. Well, did you hear any other shots fired there, Mr. Bernard? A. No, sir, just these two.

“Q. After you heard these shots, then what occurred? A. Why, in a second or two Hennieke fell forward right onto Evan’s chest, looked like he was trying to throw him. And then they all three kind o’ tussled over and fell with their heads this way.”

Bernard then tells of defendant releasing himself from the officers, and making his escape, and of Hennieke dying in a few moments, in consequence of the shot he had received from defendant. Officer Jones, also had his cheek grazed by the first shot fired by defendant. Defendant fled the city. He was captured the next morning by special officers, at a station twenty miles west of Boonville on the Missouri Pacific railroad.

Policeman Jones’ account of the arrest is the following: “Then we walked out of the door and on tire top step just as we walked out the door, this man Jocko was standing at the door; and I put my hand on him about the same time that Mr. Hennicke did, and I said to him, ‘You are just the fellow I am looking for. We want you.’

“Q. Did Mr. Bernard say anything at that time, about that time ? A. And Bernard says, ‘That is the fellow, that is the fellow.’ And Jocko says, ‘What do' you want to arrest me for? I haven’t done anything.’ Mr. Hennicke says, ‘Never mind about that. We will tell you all about that in the morning.’ By this time we were at the railroad. Then we went north along the railroad—

“Q.. Well, did you arrest the defendant there? A. We arrested him there, yes, sir.

“Q. And as you went to the railroad he was under arrest and in your custody, was he ? A. He was under arrest at the top steps.

“Q. Well,.go ahead, Mr. Jones ? A. Then we got across to the north side of the street, and we went along there, possibly until we got in front of that gate, or in front of Mr. Preston’s grocery store. He had a deck of cards in his hands, and he says to me, ‘What will I do with these ?’ And I just took them — I had hold of his right arm — and I just took hold of the deck of cards and shoved it in my overcoat pocket. By this time we were at that gate, that Jake Deck used to own the property — a man by the name of Bowers lives there now I think. Just as we got along that gate he commenced ramming his hand or trying to get his hand in his hip pocket.

“Q. Which hand? A. His right hand, the one I had hold of. Well, I says to him, ‘No, no, you can’t do that.’ And right there he began to fight and pull and drag, you know, to the corner of the alley.

“Q. And about how far was that from where he first made his motion to his pocket ? A. Well, it must be — I will say it is sixteen feet, anyway; may be a little over that. Well, when we got to the alley he kept fighting and pulling, and me holding onto his wrist to keep his hand out of his pocket, until we went up the alley about maybe the same distance — until we struck a picket fence on the west side of the alley. The picket fence I judge to be about that high; struck me about here (indicating). ' Well, I and him when we struck the fence, fell over the fence — that is, didn’t fall over completely, but bent way over the fence; and that' is where my hold broke on his right hand.

“Q. Up until that time, you had been holding his right hand ? A. Up until that time I had hold of his right hand. And both our hats fell off over the fence, and we both raised up about together, and as we did we were facing one another, and I thought he attempted to strike me with his fist that way (indicating)' — only with his right hand — and I throwed up my hand that way (illustrating), and his gun went off and just left a little black streak up the side of my face here (indicating), and I could feel the heat of the powder or the flash of the gun against my face. Well, then, I grabbed him, grabbed under-holds on him, and he twisted in my arms. That is when he shot the second time.

“Q. Now in which direction did he shoot that time ? A. Well, he shot — Mr. Hennicke was to my left, and then when we were turned, and to Jocko’s right, and then I throwed him—

“Q. Where was Mr. Hennicke, you say, at that time ? A. Mr. Hennicke was the other side of Jocko. Jocko was in between him and I. And he was on the north side and I was on the south side.

“Q. Well, tell the gentlemen of the jury whether or not the second shot went invthe direction of Mr. Hennicke? A. The second shot I didn’t see no flash — yes, I saw the flash, but it didn’t sound loud. It was kind o’ underneath, was low, between us like. It was a kind of a shot — low—didn’t sound loud and clear like the other one did.

“Q. Well, did it go in the direction of Mr. Hennicke? A. Yes, sir; it went in the direction of Mr. Hennicke. Well, then I throwed this fellow very near across the alley.

“Q. You mean the defendant, do you?” etc., etc.

Defendant on his part denied he was ever in Bernard’s cigar store the night of the homicide. He also testified that after his captors had taken him about a hundred feet, he stopped and said to them: “I asked them what they was arresting me for.” Q. “Who did you ask that?” A. “I didn’t particularly ask either one of them, I just spoke, says, ‘what are you arresting me for.’ ” Q. “Did they tell you ?” A. “No, sir.” Q. “What did they do?” A. “After I asked them what they were arresting me for, Mr. Jones says, ‘Come on here.’ And I stopped and says, ‘What are you arresting me for ?’ Mr. Jones says, ‘Come on here.’ I didn’t come here. I stopped. As I stopped, Mr. Jones hit me up side the head.” Q. “What did Mr. Hennicke do ?” A. “When he hit me up side the head I fell up against the side of him, and Mr. Hennicke pulled out his billy and commenced beating me.” Q. “Now, go ahead and state what occurred ?” A. “Then they commenced beating me, then they got me down; and they were beating me, and when I got a show, I got up and fired a shot.” That he dhot because he was mad; and that he was mad because Hennicke and Jones were beating him. He also contradicts Jones and Bernard in other respects.

It is also in evidence that about a month prior to the homicide, Hennicke had arrested defendant for some offense, and while in jail defendant told the matron that Hennicke could' never arrest him again alive.

1. In regard to the jurors, it is sufficient to say that under the settled rule of this court, it is the established law of this State, and has been ever since State v. Taylor, 134 Mo. 109, that the mere challenging a juror “for cause” will not do, that the cause of challenge must be as distinctly specified as the objection to the introduction to evidence.

2. Relative to the arrest of defendant The power of a policeman to make the arrest in question is denied, reliance therefor being based on sections 5784 and 5788, Revised Statutes 1899. These sections relate to the powers and duties of policemen in cities of the third class, and authorize policemen to arrest without process for offenses committed in their presence against the laws of such city. But these sections do not in terms impinge upon the authority of policemen at common law, to make arrests for crimes committed against the State. Bishop says: “If a person is walking the streets at night and the indications are that he has committed a felony, watchmen and beadles have authority at the common law to arrest and detain him in prison for examination, though the proof of an actual felony committed may be wanting.” [1 Crim. Proc., sec. 182.] And he cites among others the case of Lawrence v. Hedger, 3 Taunt. 14, where a watchman arrested a man in the streets of London about ten o’clock at night with a bundle in his hand, as to the contents of which he would not or could not tell, and he was held properly arrested and that no action could be maintained against the watchman. Heath, J., observing: “At every Old Bailey session numbers of persons are convicted in consequence of their being stopped by watchmen while they are carrying bundles in this way.” And Chambre, J\, said: “In this case, what do you talk of groundless suspicion ? There was abundant ground of suspicion here; we should be very sorry if the law were otherwise.” [See also Whart. Crim. L. (10 Ed.), sec. 415; 1 Russ, on Cr. (9 Am. Ed.), 733; State v. Grant, 79 Mo. loc. cit. 134.]

Hale says: “There are certain officers and ministers of public justice, that virtute officii are empowered by law to arrest felons, or those that are suspected of felony, and that before conviction, and also before indictment.

“And these are under a greater protection of the law in execution of this part of their office upon these two accounts.

1. Because they are persons more eminently trusted by the law, as in many other acts incident to their office, so in this.

2. Because they are by law punishable, if they neglect their duty in it.

“And therefore it is all the reason that can be, that they should have the greatest protection and encouragement in the due execution of their office, since their actings herein are not arbitrary, but necessary duties (not permissions), and under severe punishments in their neglect thereof.

“And hence it is, that these officers, that are thus intrusted may without any other warrant but from themselves arrest felons, and those that are probably suspected of felonies; and if they be assaulted and killed in the execution of their office, it is murder; and, on the other side, if persons that are pursued by these officers for felony or the just suspicion thereof, nay for breach of the peace or just suspicion thereof, as night-walkers, persons unduly armed, shall not yield themselves to these officers, but shall either resist or fly before they are apprehended, or being apprehended shall rescue themselves and resist or fly so that they can not be otherwise apprehended, and are upon necessity slain therein, because they can not be otherwise taken, it is no felony in these officers or their assistants, that upon inevitable necessity'kill them, though possibly the parties killed are innocent, for by their resistance against the authority of the king in his officers, they draw their own blood upon themselves.

“The officers that I herein principally intend are, 1. Justices of the peace. 2. Sheriffs. 3. Coroners. '4. Constables. 5. Watchmen. And when I mention these I also include all that come in their aid and assistance; for every man in such cases is bound to be aiding and assisting these officers upon their charge and summons, in preserving the peace and apprehending of malefactors, especially felons.” [2 Hale P. 0., 85, 86.]

Besides, our statutes have given recognition in at least two instances, that the term "policeman ,” which is the legal equivalent of “watchman” at common law, are proper persons to make arrest in State crimes. [R. S. 1899, secs. 2168 and 8818.] Such recognition in legislative enactments is'tantamount to legislative authorization in express terms; and this principle is attested by many authorities: Bonds v. State, 17 Am. Dec. 795; Small v. Field, 102 Mo. loc. cit. 119, 120; Bow v. Allenstown, 31 N. H. 351; People v. Perrin, 56 Cal. 345; State v. Cummins, 42 S. W. loc. cit. 881; McCartney v. Railroad, 112 Ill. 611; People v. President, etc., 9 Wend. 351; Society for the Propagation, etc., v. The Town of Pawlet, 4 Pet. 480; Balt. & Potom. R. R. Co. v. Reaney, 42 Md. loc. cit. 131; Inhabitants etc., v. Railroad, 4 Cush. 63; 1 Bishop New Crim. Proc., sec. 181.

A policeman, then, has the same power of making arrests for crimes or offenses against the State as has a sheriff, constable, etc., and in thus making arrests is covered by the same peculiar protection which the law throws around a sheriff or other like officer.

If a sheriff or other peace officer arrest a person without warrant, he will be justified in doing so although no felony be actually committed; it is sufficient if he have reasonable cause either on his own knowledge of facts, or on facts communicated1 to him by others, to suspect the one apprehended. And in thus arresting such suspected felon, or in conveying him to the place of confinement, if the person arrested, or attempted to be arrested, in his endeavor to escape, kill the officer, the crime will be murder; but if the officer necessarily kill him when he resists arrest, or endeavors to escape, the homicide will be altogether justifiable. [State v. Underwood, 75 Mo. 230; 1 Bishop New Grim. Proc., sec. 181, and cases cited, and authorities supra. See, also, 2 Am. and Eng. Ency. of Law (2 Ed.), 870.]

Here Bernard had given the police officers direct and positive information as to the felon and afterwards at the time of the arrest, identified the felon. More than this certainly could not,be required.

3. (.But it is objected that defendant had no notice of the official character of the officers. This is answered as to Iiennicke by the testimony aforesaid of the matron of the jail as to defendant’s covert threats against Hennicke, and by the official uniforms worn by both officers at the time of the arrest.

4. But further objection is made that defendant was not notified by the officers for what he was arrested. This, however, was not necessary, inasmuch as defendant was apprehended on fresh pursuit; for in such cases notice is not requisite, because the accused is presumed to know for what he is arrested. [1 Whart. Cr. Law (10 Ed.), sec. 418 and cases cited; Lewis v. State, 3 Head. 147; Rex v. Howarth, 1 Mood. C. C. 207; Rex v. Hunt, Ib. 93.]

And it is the rule that notice of the charge and of intention to make the arrest, may be made to appear by some incidental matter. [Gordon’s case, 1 East, P. C. 315.]

And it is agreed on all hands that a private person making an arrest for a past felony, need not give notice of the ground for the arrest, if the accused have notice aliunde. [State v. Albright, infra.] Here the pursuit was fresh, since not more than twenty or twenty-five, minutes elapsed between pursuit begun and apprehension had. \

5. But even could the arrest be regarded as one made by mere private citizens, still, Bernard had knowledge of the crime committed and of the one who committed it, and therefore the killing of him in making the arrest, or of one of his assistants, would also be murder. [State v. Albright, 144 Mo. 638, and cases cited.]

6. Under the authorities cited, even if there had been no felony committed, still, arresting defendant in the circumstances already related, the officers would have been justified in killing defendant, if necessary to overcome his resistance; that is, if he could not otherwise be taken or such resistance overcome-; and the killing of ITennicke was nothing less than murder in the first degree; for in such circumstances “passion becomes wickedness and resistance crime.” Under these views there was in this cause neither murder in the second degree nor manslaughter. {

7. Holding as above, it is only necessary to say that the instructions given (except as to murder in the second degree) were substantially correct, and that those refused defendant were consequently correctly refused.

Therefore, judgment affirmed, and the sentence pronounced ordered to be executed.

All concur.

Case Details

Case Name: State v. Evans

Court Name: Supreme Court of Missouri

Date Published: Mar 12, 1901

Citation: 161 Mo. 95

Court Abbreviation: Mo.