230 Mo. 660 | Mo. | 1910
On the 9th day of September, 1908, the prosecuting attorney filed in • the criminal court of Greene' county an information charging the defendant, Hiram Montgomery, with the crime of murder in the first degree. The information was in due form, and charged that defendant shot with a pistol
On the application of the defendant the venue of the cause was changed to Lawrence county, where, at the March term, 1909, upon a plea of not guilty, the defendant was tried and convicted of manslaughter in the fourth degree, his punishment being assessed at imprisonment in the penitentiary for a term of two years. After unavailing motions for a new trial and in arrest, judgment was pronounced in accordance with the verdict, and the defendant appealed to this court.
On the part of the State the testimony tended to prove that on August 23, 1908, on Sunday_ morning about 9 o’clock, John Montgomery, a deputy constable, and John Denton, his prisoner, were standing on the east side of Campbell street near the public square in the city of Springfield, Missouri. Denton had been arrested without a warrant for a breach of the peace and the deputy constable was taking him as a prisoner to the office of a justice of the peace. On the west side of Campbell street, just opposite where the deputy constable and his prisoner were standing, several persons were congregated, among them Mr. Allen, a court stenographer, three city policemen and two city councilmen. One of the persons thus assembled called to Den-ton to come over to where they were standing. Den-ton and Montgomery went across the street, and the defendant, who as deputy constable had shortly before arrested the prisoner and turned him over to John Montgomery, followed but a few minutes thereafter. Allen asked the officers in charge of Denton if they had a warrant for Denton’s, arrest, and was informed they had not. Allen then told them they had better get a warrant and be on the safe side. ■ The defendant seemed much angered at Allen’s interference and drawing and cocking his revolver told Allen he would take him too. As soon as the revolver was drawn on Allen,
The defendant was a witness in his own behalf and his testimony tended to show that he was keeping a hotel in Springfield, Missouri, and that on the morning of the difficulty, as deputy constable, he arrested Denton’s wife in his (defendant’s) hotel for a breach of the peace committed in his presence. When taking her to the office of the justice of the peace, and before he had left the hotel, he was met by her husband; the latter objected to and resisted the taking of his wife as a prisoner, and he also was placed under arrest by the defendant. On the way to the office of the magistrate the wife became ill and the defendant took her to her room and directed John Montgomery, who had come upon the scene, to take Denton on to the office of the justice of the peace. As soon as the defendant had taken Denton’s wife to a room he followed and found John Montgomery with the prisoner on the west side of Campbell street, where Allen and others were advising him to procure a warrant for Denton’s arrest. When the defendant came up he spoke to Denton and told him to go with him. Denton refused and thereupon Mitchell interfered and told the defendant he could not take Denton without a warrant. The defendant then told Mitchell he would take him too, and as defendant went to lay his hand upon Mitchell the latter assaulted the defendant, according to this testimony, throwing one arm around the defendant’s neck and seizing the revolver with the other hand, and defendant
Evidence was also offered tending to prove that Mitchell had threatened defendant sometime before the homicide and that the threats had been communicated to the defendant; also that just before the shooting Mitchell had said to one of the bystanders that if he would stay with him, he (Mitchell) 'would see that the officers did not take the prisoner without a warrant, and that the bystander answered that he would stay with Mitchell.
The case was submitted to the jury upon instructions authorizing a conviction of murder in the.second degree or of manslaughter in'the fourth degree, and authorizing an acquittal upon the ground of self-defense or upon the theory that the defendant killed the deceased while acting in the necessary discharge of his official duties. The court also gave such general instructions ujDon reasonable doubt, good character, credibility of witnesses, etc., as were applicable to the evidence.
Appellant complains that the eourt erred in giving of its own motion and at the request of the State instruction number 4. This instruction is as follows:
“If the jury believe from the evidence that George Mitchell resisted the defendant, while the defendant had one Denton in custody and attempted to rescue one Denton from the defendant and attempted to prevent defendant from taking, said Denton before a magistrate, and if you believe from the evidence that said Mitchell, to effectuate said purpose, assaulted defendant, and if you believe from the evidence that to prevent the accomplishment of such purposes on the part of Mitchell, the defendant resisted said Mitchell, and if you believe from the evidence that in making such resistance and in his efforts to retain his prisoner, the defendant unnecessarily took the life of deceased, then the jury will find the defendant guilty of manslaughter*667 in the fourth degree, and assess his punishment as directed in these instructions.”
In order to properly understand appellant’s contention as to the point under consideration it is necessary to set out the following instructions, numbered 8 and 9, given on behalf of the defendant:
“8. The court instructs the jury that if the defendant had been duly appointed as a deputy constable, then the defendant was a peace officer, and as such it was his right, not only to command the peace but to enforce such command by arresting, without warrant, anyone committing a breach of the peace in his presence, and by taking such offender before the proper officer to be dealt with according to law.
“If, therefore, you find from the evidence that the defendant Hiram Montgomery, had been appointed a deputy constable of Campbell township, in Greene county, Missouri, and that one John Denton had committed a breach of the peace in defendant’s presence and that defendant had arrested said Denton on said charge, and either alone or with the aid and assistance of another deputy constable, to-wit, John Montgomery, if you find he was a deputy constable, was conveying said Denton to the office of C. A. Hubbard, a justice of the peace of said Campbell township, to be dealt with according to law, and while so engaged, the deceased, George Mitchell, either alone or acting with others, obstructed, interfered with or resisted in any manner, by his words, or acts, the defendant as such officer in his efforts to convey said prisoner to the office of said justice of the peace, then the defendant had the right, under the law, to use all the force which to him seemed reasonably necessary under the circumstances to overcome all resistance to the exercise of his authority in the premises, even to the extent of taking the life of said Mitchell, and if in'such circumstances he shot and killed Mitchell, he is justified under the law, and you should find him not guilty. ’ ’
*668 “9. In determining, whether or not defendant used more force than was reasonably necessary in shooting Mitchell, the deceased, you are instructed that the law does not require an officer in making an arrest or in conducting the prisoner before the proper officer to be dealt with according to law, when resistance is-offered to the exercise of his authority, to determine with absolute precision what force is necessary to overcome such' resistance, it is only required that he should not use any more force than may seem to him to be reasonably necessary for the purpose.”
It should also be prefaced that in the first part of instruction number 3 the jury were instructed in substance that if the defendant killed the deceased in a heat of passion upon reasonable provocation, or because of defendant’s apprehension of great personal injury from Mitchell, then the law presumed that the-defendant took the life of Mitchell -by reason of such passion and without malice, and the jury could not convict of murder. And in the second part of instruction numbered 3 the court told the jury that if the defendant killed Mitchell in a violent passion, as stated, in the first part of the instruction, and the infliction of the injuries upon Mitchell by the defendant “were not necessary to the self-defense of the defendant, or to discharge his duties as an officer in the premises, as explained in these instructions, you will find the defendant guilty of manslaughter in the fourth degree,” etc.
Prom the foregoing instructions and what has-been stated it is apparent that the State relied upon two separate and distinct theories of the evidence as warranting a verdict of manslaughter in the fourth degree, namely, that the fatal injuries were inflicted by the defendant (1) in a violent passion upon reasonable provocation, but not in necessary self-defense, and (2) though not inflicted in such passion but as an officer resisting an attempt of Mitchell to rescue a pris
In giving instruction number 4 it is evident that the court sought to present to the jury that phase of the case authorizing a conviction of manslaughter in the fourth degree if the jury should find that, while in the discharge of his official duties as deputy constable, the defendant in resisting an assault made upon him by Mitchell, took the life of Mitchell, and. in so doing used more force than seemed reasonably necessary. The evidence clearly' warranted an instruction submitting the case to the jury upon that theory. In the case of State v. Rose, 142 Mo. 418, a case in many respects similar to the case in hand, Burgess, J., speaking for this court, at page 426, said: “If defendant, without malice, intentionally shot and killed deceased while resisting arrest, and in so doing used no more force or violence than was reasonably necessary to accomplish his arrest, the homicide was justifiable. [2 Bishop, New Crim. Law, secs. 647, 650.] But if he used more force than was reasonably necessary for that purpose, and shot deceased while resisting arrest, he was guilty of manslaughter- in the fourth degree. [R. S. 1889, sec. 3477, supra.]” And in the case of State v. Coleman, 186 Mo. l. c. 160, this court said: “It is equally clear under the facts of this case that it was the duty of defendant as such officer to arrest the deceased, and to use sufficient force to accomplish the arrest and bring the deceased within his control, but if he used more force than was reasonably necessary for that purpose and killed Cos, he was guilty of a criminal offense, its grade depending upon the facts and circumstances in evidence. [State v. Dierberger, 96 Mo. 666; State v. Rose, 142 Mo. 418; State v. Lane, 158 Mo. 572.]” See, also, Kelley’s Crim. Law and Prae., see. 524.
Instruction number 4, of which complaint is made, properly sets forth the facts hypothetically in the converse form of defendant’s instruction number 8, and upon a finding of which facts the jury was directed to return a verdict of manslaughter in the fourth degree. After thus reciting the facts, namely, the defendant’s custody of Denton as a prisoner; the assault of Mitchell upon defendant in an attempt to rescue the prisoner; the resistance of such assault by the defendant in his efforts to retain the prisoner, etc., then instead of submitting a finding of such facts to the jury as a basis from which to determine whether the defendant in so resisting Mitchell used more force than seemed reasonably necessary, and if so that he was guilty of manslaughter in the fourth degree,- the jury was instructed that if “in making such resistance and in his efforts to retain his prisoner, the defendant unnecessarily took the life of the deceased,” they should find him guilty of manslaughter in the fourth degree. Although this instruction, as applicable to the evidence, is not skillfully drawn, it cannot be said that it is inconsistent with instruction number 8 given on behalf of the defendant, and when both instructions are read together they declare the law'upon the subject in terms more favorable than the defendant was entitled to.
Reading the two instructions in accordance with the rule thus announced, we find in instruction number 4 a direction to the jury that if defendant was in charge of a prisoner and Mitchell assaulted defendant in an attempt to rescue the prisoner and in resisting such assault defendant unnecessarily took the life of Mitchell, he was guilty of manslaughter in the fourth degree. On the other hand the jury were told in instruction number 8 that if the defendant in resisting such assault upon him by Mitchell used no more force than seemed to him to be reasonably necessary,' the killing was justifiable. It must follow that if the killing of Mitchell was necessary in. the exercise of defendant’s duty as an officer, and as defined by instruction number 8, the defendant did not “unnecessarily take the life of the deceased,” and the jury could not have found him guilty under instruction number 4. This is the only meaning which a jury of ordinary in
For the foregoing reasons we hold that the appellant was not prejudiced in his substantial rights in the giving of instruction number 4.
Counsel for appellant at the oral argument and in their brief earnestly insisted that the verdict is against the evidence, and that under all the evidence the taking of Mitchell’s life was justifiable, (1) on the ground of self-defense, and (2) because the act was done in the discharge of defendant’s official duties and without the use of more force than seemed to him reasonably necessary.
The first of these complaints requires but brief consideration. The uncontradicted evidence shows that Mitchell was unarmed; there were four other police officers standing within a few feet; Mitchell’s interference or assault upon the defendant, if it may be so called, was of such character as to show an entire absence of that peril or danger or apparent danger to the defendant which, under the law, would justify the taking of life on the ground of self-defense.
Neither is there merit in the second contention that the killing was necessary in the discharge of. the defendant’s duty as deputy constable. Giving full force to the
The defendant was the proprietor of a hotel; he was also a deputy constable. On the morning of the homicide there was a difficulty at the hotel between the defendant’s wife and the wife of Denton, which, in the eyes of the defendant as an officer and proprietor of the hotel, amounted to a breach of the peace; of the two thus engaged in a quarrel the defendant placed Mrs. Denton only under arrest;'when Denton interfered in behalf of his wife, he was also arrested and placed in the custody of another deputy constable to be taken before a magistrate, while the defendant took Mrs. Denton, who in the meantime had become ill, to her room. The defendant did not permit the disinterested deputy to take the prisoner to his destination, but soon followed and overtook them where they had stopped on the street and were talking to a small assemblage of bystanders. While these bystanders were intermeddling and offering advice to the officer and prisoner in the matter which did not concern them, just
Viewing the defendant’s conduct as connected with this homicide and as disclosed by the testimony of the eye-witnesses, the conclusion is irresistible that he did not move upon Mitchell as an officer in the name of the law, but rather as a man who, besides being an officer, had a private grievance, and, fired with passion, recklessly and needlessly took a human life. To say that the taking of the life of an unarmed man in the presence of five officers of the law in broad daylight, and under the circumstances of this ease, was justifiable on the ground that no more force was used than was reasonably necessary in the discharge of the official duty of . the slayer, is to disclose a misconception of the law applicable in such cases, and to place entirely too low an estimate on the value of human life,
In appellant’s brief much stress is laid upon the-right of an officer in making an arrest or preventing a. rescue “to use such force as seemed to him (defendant) to be reasonably necessary in the premises to-maintain his authority,” etc.
The force reasonably necessary to be used by the-officer in such cases must be determined from the-surrounding circumstances and conditions as they appear to the officer at the time he is required to act, but. it must not be understood that the defendant is the-final arbiter in such case, and that if the taking of life-seemed necessary to him the question is then foreclosed against further inquiry upon a trial for homicide. In Wharton on Homicide (3 Ed.), section 502r. the law upon this subject is stated as follows: “It has-been held -that the amount of force and the employment of the usual means of making an arrest and detention within the compass of the means ordinarily-resorted to for securing one found committing a criminal act must be left to the discretion and judgment of the officer, where he is engaged in discharging a. public and official duty, and is actuated by no ill-will. But the prevailing rule seems to be that the law does-not clothe an officer with authority to judge arbitrarily of the necessity of killing a prisoner to secure him, or-of killing a person to prevent the rescue of a prisoner,, and that he cannot kill unless there is necessity for it and that whether there is such a necessity is a question of fact for the jury in a prosecution for the kill
In tbe case of State v. Lane, 158 Mo. 572, tbis court approved an instruction which declared the law in harmony with the prevailing rule as thus stated by Wharton, and the Lane ease is cited by that author in support of the text above quoted.
We have examined the record before us, not only as to the two errors assigned, but as to the entire proceedings of the trial, and have reached the conclusion that the defendant was accorded a fair trial and that reversible error does not appear in the record. Accordingly the judgment of the trial court is affirmed.