96 Mo. 165 | Mo. | 1888
The defendant stands convicted of an assault with intent to kill, without malice aforethought, L. D. Howard, who was the deputy marshal of Ash Grove, a city of the fourth class. It appears that defendant was intoxicated, boisterous, and handled a gun which he had so carelessly as to be dangerous to persons on the streets. He defied the power of the marshal to arrest him. The marshal refrained from making an arrest for the moment, as defendant’s comrades undertook to get him out of town, but defendant got into a scuffle with them, during which he had in his hand an open knife. The marshal then undertook to arrest him for a violation of the ordinances of the city, whereupon he drew his knife in resistance of the arrest. The marshal hit him once with a pistol, and was about to strike the second time, when the pistol fell to the ground. Defendant picked it up and shot at the marshal twice; the last shot was fired while the marshal was on the retreat, the ball taking effect in his arm. There is some evidence tending to show that the officer used more force than was necessary to accomplish the arrest.
1. The first point made on the trial is, that since Ash Grove was incorporated in 1871 as a town, the county court had no power, under'the general law relating to cities and towns, to declare it a city of 'the fourth class ; and that the change from a town to a city could only be made by a vote of the inhabitants. From all this it is contended that Howard was not an officer at all. Concede that a change from a town to a city should have been by a vote and not an order of the county court, still that does not aid this defendant. The city is acting as a city of the fourth class,' under color of law, and its right to do so is not questioned by the state. On the contrary the state recognizes its right to be and to exercise the powers of a city of the fourth class ; and its corporate capacity, as such city, cannot be questioned in this collateral proceeding. The Inhabitants of Fredericktown v. Fox, 84 Mo. 59; St. Louis v. Shields, 62 Mo. 247; Catholic Church v. Tobbein, 82 Mo. 418.
2. Defendant asked several instructions invoking the right of self-defense, but they ignore the fact that Howard was an officer and had the right to arrest, on view, for a violation of the ordinances of the city ; they also ignore the fact that the defendant was resisting the arrest, and hence they were properly refused. Under an instruction given, the jury were required to find that Howard was marshal of' Ash Grove, and this to the knowledge of defendant; that defendant was violating an ordinance of the city, in the presence of the marshal, in the resnects set out in the instruction and in
An officer in making an arrest should use no unnecessary violence; but it being his duty to make an arrest, the law clothes him with the power to accomplish that result. His duty is to overcome all resistance and bring the party to be arrested under physical restraint, and the means he may use must be co-exfcensive with the duty, and .so the law is -written. 1 Bish. Crim. Proc. (2 Ed.) sec. 160. The instructions present fairly the law of the case and the judgment is affirmed.