*1 mеan, con- it pre-trial order else this Whatever -unmodified amount case that ‘‘‘the purposes clusively establishes for jurisdiction of $5,000.00 and appeal was dispute” at the time appeals. court of is, therefore, appeal, Ap- Court St. Louis transferred to the Accordingly the cause is CC., Bohling, concur. peals. Westhues and adopted C., is foregoing opinion PER CURIAM: —The by Barrett, judges All the concur. as of the court. opinion S. 39555. 192 Appellant. Nolan, Edward v. Neil No. (2d) 1016. Two, 11, 1946. March Division *2 Randolph Lewis F. for appellant.
(cid:127) Taylor, Attorney General, Berry, Jr., E. and Will F. Assistant J. Attorney General, respondent.
BOHLING, guilty C. Neil E. Nolan adjudged manslarighter killing N. Mead, of Alva policeman, and punishment eight years’ imprisonment. appeals. fixed at His He contention the State failed to make case calls for the facts. Mead, Blessing McCullough
Officers Joseph, Missouri, and of the St. Department duty midnight Police went on at March and were cruising in a squad city burglar-* The B. & car. M. Tavern in said night. ized between 1:30 and m. of said This was broadcast 2:00 A. over squad radio all cars about 2:00-a. and advised m., burglary larceny change, and of the about pennies, $12.00 etc., gun, Mead, probably and two. About 2:00 a. Officers m., Blessing McCullough and appeared with interferred what to be starting fight They "of a the men off the ordered street. observing cruised minutes, returned, around few a man still on the street corner, Blessing Mead left automobile why out gone. “Nick,” night find he had not man .a there, Blessing restaurant then told a dirty Mead little “about boy coming getting a ten change.” dollar bill for a lot of small gave “Nick” a description boy officers the direction ' They following in- which he squad went. returned to the car and given “Nick,'” boy directions located the on the southwest corner 5th driving, Mead, pulled and Edmond streets. who was over corner, heading wrong direction, southwest McCullough Blessing, got their wearing uniforms, out. Me-' Cullough boy, Nolan, was in the year, lead. The his seventeenth is- M. here. had committed the B. & He *5 actually Tavern He but this was not then known to officers. respоnse question. stated he lived in in Me-- Florence Addition a to Cullough started to another at time reach- question, ask same ing appellant. McCullough for appellant he said took of hold jerked Appellant, statement, pnt loose. appellant the occurrence way: cops up “. two drove and started to I search me. I guns cops had two so made a break for it. One of the had ahold of got away.” Blessing ap- I appellant, me when Officer chased having diagon- pellant proceeded about a half block start. The chase ally Fifth alley street; across street into an and to thence east. Charles appellant among The officer lost at Sixth and streets Charles some parked crossing parking automobiles but saw lot at soon appellant stop. Seventh and He “hollered” for When Charles. to Blessing swung street, squad car, Mead, Seventh reached driven stopped off Edmond street and on headed south Seventh. Mead car,- jumped gave According appel- appellant. out and chase to going. lant’s statement, kept him “halt” but officer told building. Appellant Then the officerfired and hit the then back. fired again. appellant leg. The officer fired Appel- This shot struck in the running leg lant shot a second time and continued until his buckled Blessing him, under him. When reached Officer Mead was down on face, his knees pitched forward. He was dead. He had bullet right right region in his arm wounds and left сhest over heart, latter caxised immediate death.
The contention that submissible case was made without appellant deadly weapon; merit. That used that he intended Mead; part shoot Officer that he shot Officer vital Mead body questioned. is not These of the instant ease circumstances give were sufficient presumption rise to a second murder degree in the establishing absence of other facts murder in the first degree by proof establishing manslaughter by deliberation proof establishing justifiable of want of malice or homicide. excusable or Holme, 640, 647(I), State Kyles, 1050(1); (Mo.), S. W. v. Harris Miller, State v. 143 S. 2d 364[2]; 848[1], 242[1, ; (Mo.), Moore S. W. 2] 1058[2]. presented appellant Several issues or fall on stand jury legally factual find issue ivhether the circumstances the could that They Officer Mead was a lawful arrest. arise with several appellant connection instructions. One denied the benefit his plea jury appellant of self-defense if the killed in know found ingly resisting a attempted lawful in a lawful manner. An arrest jury ap other advised that Officer had the Mead pellant believe reasonable cause to and did believe felony appellant burglary larceny had committed the & appellant B. M. Tavern. Another was to the effect that if knew Mead appellant was a place and intended to under arrest breaking into & the B. M. Tavern and that Mead was using only such force as was reasonably necessary said ar make rest and had reasonable cause to re- guilty, believe then *6 if part appellant unlawful, appellant
sistance on the was arrest, guilty. killed to he av.oid light The evidence is to be reviewed in the favorable most to determining sufficiency State in for the of the fact its submission attempted of the issue lawfulness of the arrest of a warrant, having the officers warrant. In this connection neither by any thoughts State nor reasons Officer Mead was bound might Blessing which have the acts of Officers dominated or McCul- lough. Whitley v. (Mo.), State 183 S. W. Distinctions 319[3], authority with respeсt arrests, among exist to make to other fac- tors, private (the officers and authority between individuals of offi- embracing exceeding private naturally citizens); cers that of with respect grade offense, any, committed, felony to the whether a misdemeanor; or a and whether committed within the view of the person making the arrest.
Officer City Mead was a member of the force of the of St. Joseph. policeman, “A then, power making has the same arrests agаinst crimes sheriff, constable, or offenses the State as etc., has a making by peculiar protection in thus arrests is the same covered which the law throws a around sheriff or other officer.” like 5), 108(2, 5) ; Evans, 590, 593(2, 84 Am. Rep. 669, discussing St. after the issue. Gartland, See also State v. 165, 169; 263 S. W. 6495, 6581, Secs. R. S. 1939. by may By “Arrests officers without 1. a warrant be executed: justice of the Peace ... 2. The sheriff ... The cor oner ... . . felony 4. The constable . And case of actually may upon probable committed ... he suspiciоn arrest felon; (as purpose upon and for that is justice’s authorized warrant) open to break doors even kill to the felon if taken; and, cannot otherwise be if he or his assistants be killed arrests, such it is murder in all concerned.” Black Cooley’s stone #292. In Commentaries (Yol. the note edition 2, p. 1445) felony by it is stated: has in been committed “If fact person arrested, may justified by any the arrest be person without warrant, whether there is time obtain one or not. . . . But felony if no private committed and a one, individual warrant, arrest without a although such arrest is illegal, an officer justified if would be acted reliable information. [Citing . Arrest without warrant an made cases.] actually where no has committed, but suspected, suspected individual being criminal; private but a person justify only’ can by showing the actual commission of felony, grounds suspect reasonable the accused.”1 Hale, *72, Hawk., PI. 1See also Cr. Chs. PI. Cr. Chs. 13; Chitty, *17; *15, Stephens, (27 3); L. Library), *242(2, Cr. Cr. L. Law appeal con- Whitley (Mo.), 183 S. from night degreе. Shaiper One for murder the first viction Wagner Whitley holding Joyce Louis saw and one of St. O’Connor was drunk was be- They suspected David O’Connor. Being response inquiries ing scene. told robbed and ran *7 Whitley Wagner O’Connor, nor knew each or neither other the that patrol placed the under arrest and started toward a three a away, Shaiper Whitley the box few blocks lead. After Joyce traversing feet, 500 observed a between sudden scuffle about Whitley Shaiper pistol immediatеly a shot, heard followed mortally Shaiper Whitley fell by more. wounded and fled. He two night the apprehended Whitley later. Earlier in one had robbed Ladinsky; appears far as of any but so record neither officer had felony. Whitley knowledge that or information of law- attacked the right he of had the fulness his arrest claimed resist. The court grounds: (1) these contentions on two That Whitley overruled had arrest; (2) anyway not resist to and did an submitted the facts grounds Whitley’s arrest if sufficient he had not afforded sub- Whitley also attacked an instruction to mitted. the far effect, so as he, in fact material, Ladinsky was, that if robbed time the a acting suspicion so as to create reasonable arrest, that he had engaged committing felony, or was committed then it was Shaiper arrest duty defendant, of Officer “to of de- Whitley thereto.” regardless to submit contended that, fendant just Ladinsky, fact robbed he had in whether officer was not protection stated in the if to the instruction he entitled did not have knowledge felony. The eourt that stated instruction should n be) declared to (if proceeded not theretofore law and be to so considering Whitley’s law, contention establish “so technical ’’ verge upon as to the ridiculous. The court, and narrow on the issue by pointed respect instruction out with presented to an arrest by a “. warrant officer . (b) . and he that suspicion any person who fact guilty arrest is in of a recent ’’ be advised felony, whether the such felony (1. or not. c. . . guilt The court continued: “. 320.) fact of the recent felony deprive right should be held the defendant of his resist”; hold lawful guilty “. . . of one and: we of an antece- felony to the arresting which unknown dent officer. . . . But being knowing guilt guilty, and (as thereof the in- [Whitley] jury’s verdict), by is from the ference law incumbent on 83; Bishop, (2d Ed.), 125, III; 1 Wharton, Russel Crimes Cr. 3 Proc. 1 136, 383; (12th East, Ed.), 1 Arch., Secs. Cr. L. Pr. Jur. PI. 1 Cr. Cr. 1(c) seq.; (8th Ed.) 81, 18, 36; et Am. 25, Jur. Sec. Secs. Am. 586, 6, 227; b, b; 8, 19; S.) C. J. Sec. S. Secs. C. J. S. Sec. 353; 50(a). Annotations, Id., 915, 144; (N. Sec. L. R. 33 L. A. R. A. R.ep. 682. St. Am. arrest, taking he penalty, refused, him to if submit under resisting away his defense when tried for act done while statutory arrest.” This harmonizes with constitutional enact- ments and later court decisions. Williams, 14 S. W. 2d After involved lawfulness of an arrest without a warrant. [3-6],
pointing they transported defendants admitted and were out that transporting “moonshine,” whiskey” “corn convicted 1929; “Ordinarily R. we under Sec. court said: ground arrest; or, be an- say ample put would that was for the if it way, probable other cause. . . . there “But an officer on reason- has to arrest without warrant ground person committed a suspect able arrested has . . necessarily justified . He is an “. because he believes committed, always justified has he is offense offense but committed, it not. fact has been whether had reason to believe only justified If committed, a crime has not been then can *8 ground the of com- reasonable to believe that it has been existence particle, applicable mitted. As to case it would not matter a arrest, ground the the deputy when sheriff made whéther reasonable felony presented a to his mind or believe had committed to justified ground existed-, crime is not; because the reasonable the The justification. That a complete fact been committed. is arrest was therefore lawful.” a Raines, 884, Mo. 98 S. W. 2d 890, 580,
State v. [4], and arrest prosecution burglary, without a warrant for involved quoted warrant. thereto, search The court a search incident McNally, Williams, supra. v. also State v. applied State Cоnsult and 1219, W. (II, III); Ford, 1225, v. 334 Mo. 130 S. 644, State Mo. 138(I). App. 133, 25 Mo. Julian, 2d State necessary all explicitly authorize officers use Our statutes in or notice of an person an arrest flee resist force to effect after They may 1939.). R. command (Sec. 3960, him tention to S. arrest be (Secs. 3961, Id.), and felons are to 3882, assistance to retake required and and others thereto pursued by officers all forthwith failing 3882, Id.). or (Sec. Officers without warrant arrested be a misdemeanor themselves commit refusing arrest felons pursue Id.). (Sec. 3884, Persons arrested punishment subject and are discharge process” are entitled to warrant or other confined “without charges be twenty arrest unless hours the custody from within of them, Id.). Persons 3883, Id. Sec. (See. See against duly filed felony” duty, any of any official case “discharge resisting Id.). Id., See. Sec. (Sec. 4291, see commit “. . . justifiable is when committed: provides homicide ways lawful necessarily committed third, when ” apprehend any felony . person means to committed 17, Schedule, also See. Mo. Consult Const.
Among' protecting discharge reasons .for officers in advanced republic ours, their lawful are: In a like duties citizens are sov ereign. At common law sheriffs, statute constables, other required discharge like officers are protect their official duties — sovereign penalties. The legal processes execution of and the —under discharge obligations give law; legal to the life and resistance in opposition law, unlawful, thereto is to the inquiry needs as 1939; Green, See. R. malice. S. security The people dignity requires well as as the law officers, flight making arrests, to overcome place and resistance and person especially physical restraint, under This duty felons. is accomplished by pressing discharged forward. It is not by defensive They action. aggressors. are “would be of all men the effecting most miserable” if while they placed lawful arrests be level ordinary having same as a private quarrel individuals protection public denied that commensurate with the exacted. Having imposed (see to arrest in all lawful instances v. Boyd, App. 518, 525, sovereign 191,W. 193), S. needlessly targets expose protectors does not its as for felons to shoot down on the provocation. sovereign least The affords them with special protection. Dierberger, right
168. If one has the another, to arrest that other has no to resist. It illogical say rights is and irreconcilable to these cоexist. engage equal They Officers need not felons on terms. are entitled to flight force, overcome with superior or resistance extent killing necessary. the felon if
The state mental of the time accused subject inquiry. material A citizen who has committed no *9 guilt readily is of a conscious and an arrest on pretense can false (cid:127)' indignation anger righteous arouse can that passion. and and How outrage springs 'honest sense of which innocent into the mind o'f the arise in the breast a felon? of Neither reason nor law reaches A such a result. felon of law, knows his violations of his An crimes. enemy sovereign society, the and the of security of knows he has liberty his discharge imposed forfeited and the of that duties protectors security sovereign' ap of the the of the his demands prehension justice. to answer at the bar of Fear oí a desire to escape punishment to a Re motivates resistance lawful arrest. passion sistance thus a becomes wickedness.' crime-and Con becomes 'sequently, duty upon- imposes the law that the .officers to1 arrest exacts, necessary felons as a that corollary, felons submit-to .lawful ' ~ arrest. is; officers,
“And hence it that these that thus'intrusted; are without other warrant from but themselves arrest felons
990 they office, of it assaulted and killed in the execution their ” quoted Evans, . 2 Hale PL Or., *85, is murder in State v. 15; (a); 2 supra. Chitty Hawk. Pl. Ch. L. *15 Cr., 12, Sec. Cr. Doug. (1 Bench) 359; Erben, v. Payne, King’s Samuel v. Burns Hart, 40 N. 318- Wakely (Pa.) 316, Y. v. Binn. 9; Hоlley (3 Mix, Y.), 350, duty v. N. is Wend. The officers’ bringing performed upon person the before a whose magistrate, inquiry discharge person is to make in accord and- commit or the liberty; lightly deprived with law. not to be of Citizens are their the but mischief and inconvenience sometimes occasioned the innocent early compared insignificant was with conse considered when the police public permitting suspected and the of quences the felons and investigation. Catchpolе See Ledwith escape felons without Rep. per (1783), Mansfield. Caldecott’s Lord Constitutional statutory this policy enactments evidence Missouri. only
In have but instant case we fact of the the the felony person being attempted the the fact of the arrested felon. The also grounds’. justified was on two ground of suspect appellant guilty Mead had reasonable Officer Driving squad car, received the official larceny burglary Tavern; of the & M. knew of the B. broadcаst change, pistol, possibly two, that considerable small had Blessing by boy He Officer were informed “Nick” taken. that change. for a of The officers just $10 lot small secured bill McCullough and nearby. Mead knew appellant of located boy must break Blessing appellant. He have seen the approaching McCullough. fleeing and appellant He was knew hold Officer fresh; Blessing pursuing. pursuit crime The Officer knowledge burg man, the restaurant -“Nick” fresh. suspicions record, had his so far аs shown lary larceny, getting a lot bill for $10 an extent such aroused to appellant morning night,” awful bad change at two in “an small jury he notified the officers. snowing blowing, The raining, Mead, joining Blessing Officer that Officer well find could reasonably suspected commission appellant, pursuit discharging statutory duty larceny and was burglary and fleeing lawful arrest of a with to effect the felon enjoined upon Furthermore, presumption warrant. is that waiting for out discharge their lawful are officers peace Cushenberry, 180(2), make arrests. ex rel. Bates v. 742(2); Taylor, Barboursville 737,W. S. L. R. presumption A. The 485, E. Va. [4]. arrested person admits commission when rebut difficult *10 felony. burglary guilty larceny was of the B. Appellant peace cops,” officers, calling He knew “the were Tavern. & M.
991 im flight His was to avoid arrest. The law to arrest. him to submit Whitley, Con supra. to submit. State v. posed him the upon sult supra; 321 Mo. State 870, v. Noland 884 Ford, (IX), (Mo.), supra; 12 S. W. 2d 229 W. among S. others. 469, 198, 474 199[2] [11] ; State ; State v. v. McNally, Lowry, McGehee, 308 no error. State v. Appеllant’s authorities disclose 327 70, McBride, and State v. 567(I), 3], S. W. 560, Mo. [1, sufficiently distinguish 423, 37 W. are 188, Mo. S. 2d 184, [3-6], only they in that involved most mis able from the instant case opinion). purposes It is sufficient (see the McBride for demeanor all any necessity inquiry propriety for into the ob here, cases, simply point in those circumstances found servations in'all J., Cooley, C.) were, opinions (White, that the authors of said out Williams, opinion of the later in State v. respectively, authors involving supra, cases felonies and suрra, Raines, and State rulings harmony herein. v. McGehee was overruled in with the 635, 130 W. Ford, Mo. S. 2d part State v. Casualty Co., App. (VI), McKeon v. National liability 711 involved defendant’s under an ac S. W. [5], killed for the death of one McKeon who was policy cident insurance charge against him, sought who had no policemen, when St. Louis idéntification, purpose a warrant for the sole him without said, ruling a robber. What was there was said whether possible, as say, “That policy: was accidental within the McKеon’s death insured, causing intentionally injury if the act done accidental; injury was in hand, was not on the other if the the result aggressive was ac tentionally another, act of result caused ” police aggressors that the were cidental. The determination policy provisions to the facts of that applying the purpose controlling and the facts here. The issue differ. case is not there Burnett, 2d In State v. [1], any had committed crime or was that defendant evidence suspеcted of 3, 23(III), an 70(4), S. W. held Jordan, officer to arrest without a on the warrant
instruction grounds suspicion support for the crime had no reasonable evidence, was a mere abstraction and should not in the have readily necessarily error. It is reversible observable given; not presentation the State’s here facts differ and raises the instant issues in the Jordan ease. considered contentions are overruled. Appellant’s 9 was abstract nature, No. did not direct a
Instruсtion jury it informed to arrest verdict but guilty had reasonable cause to believe of a whom he persons may reasonably necessary force as believe to be such “and use separate arrest,” then, in a paragraph, that it accomplish *11 992
was Officer to arrest if believed him appellant Mead’s Mead guilty of the & M. Tavern. Appellant says committed at the B. quoted necessary the make the words officerthe sole arbiter of force the by 3960, to effect an arrest. Officer Mead was authorized Sec. R. S. necessary 1939, arrest”; think to “use all means to effect the and we prejudiced. appellant, evidence, from under was not It clear appellant’s testimony after trial statement his arrest and his at the escape 'that he arrest, says, guns account had fled to on of the he he although him; by leg, on appellant shot Mead testified: in “I never before stop my leg did or after he me until buckled shot up effect, neсessary me.” in So, appellant, admits it was for Mead flight if stop appellant’s shoot he was to appellant. and arrest But did instruction not authorize Mead to force as use such necessary seemed to him Montgomery, 660, as in State v. 232, may 236. 675, It the force limited to such “as he necessary.” reasonably “Reasonably to be believe for believe” called belief; is, ordinarily lawful an standard belief of careful prudent greater man. If Mead believed force than reаsonable necessary, then his belief was not reasonable and such force not “reasonably” authorized because of the limitation upon If word “believe.” his belief necessary as to the' force was reason able, necessary then it within the use of “all means to effect appears favorably arrest.” The instruction to more be worded statute. arbitrarily than An abuse this power unnecessary, confided in use excessive or. but applicaton force, discharging wanton should entitled in public a bounden law leeway exacted at least to that arising from presumption acting officers generally accorded in good against have his unreasonably weighed faith and not actions Lane, him. Consult instructions 587, Mo. 572, 969; Rose, 418, 427, 329, S. W. 44 S. W. Ford, See also State v. S. W. 2d Taylor, ex Bates v. Va. Barboursville rel. 174 S. E. doubt, Lastly, A. L. if any, R. on this issue was [4]. verdict directing appel removed when the instruction conditioned guilt using “only reasonably lant’s Mead such force as was ’’ necessary accomplish This said arrest. was well within the statu tory Appellant’s position is not authorization. well taken. preserved
What have said covers all review; we issues for our presented appellant’s brief in his issues motion for new - trial. We examined the other issues mentioned have either in the They brief in the are merit. Ap motion. For instance: pellant, manslaughter, may urge convicted not successfully 'error, greater any, submitting in the instruction offense of second degreе jury. (Mo.), State v. Flinn murder to S. W. 2d appellant’s legal he had testimony, Under self-defense 511[12], fact Mead was on the asserted that Officer based issue Lowry, supra. It Noland, supra; State v. arrest. State unlawful in quoted infra in clause necessary to the words define was not duty of jury arresting, an officer had the without a forming the “reasonable cause to believe” had persons whom warrant, technical, daily The are not are use and words committed readily instant were case understandable. circumstances request as we find no have so considered at the trial Appellant must *12 Raines, Compare 333 Mo. for their definition. [5], b, Tedder, (a, 62 S. W. 2d [7, 8]; b, c, d). Appellant fared well with the 889, 892(a, c, S. W. d), 112(6), 594(6). Evans, jury. See legal complaint. He has no cause Barrett, GC., concur. judgment
The is affirmed. Westhues adopted foregoing opinion Bohling, C., is PER CURIAM:—The concur; J., Ellison, J., P. Leedy, opinion as the the court. sitting. Tipton, J., not Inc. No. Products, McKelly, Appellant, v.
Louis F. Metco (2d)W. 28. 39429. 193 S. February 11, One,
Division 1946.
Rehearing Denied, March appellant. Bichard M. Stout for Brinkman and
J. J.