226 Mo. 524 | Mo. | 1910
This prosecution was commenced by information in the circuit court of Dunklin county, April 21, 1908. The information charges murder in the first degree of J. A. Leftwich at said county on the 19th of October, 1907. Afterwards at the May term, 1908, the prosecuting attorney elected to proceed for murder in the second degree only, and thereupon the defendant was duly arraigned and pleaded not guilty. At the same term he was put upon his trial and convicted of manslaughter in the fourth degree, and sentenced to the penitentiary for two years. From that sentence he has appealed in due form.
According to the defendant’s testimony, when he got to the top of the stairs he went in front of the door and stood in front .of it with the pistol in his hand. He says the door was not entirely open but
Mrs. Williams testified that she went up to the sroom next morning, went around on the porch and looked in at the window and saw the deceased lying there in a pool of blood. His head was next the door and his feet out towards the window. His head looked like it might have been just opposite the bottom bullet hole in the door. She testified that the last bullet hole in the door was about a foot and a half from the floor and the other was about two and a half feet.
Elliott testified that he was in the room just across the hall from where the shooting took place. His regular room was the room Leftwich was occupying. When the defendant came up the stairs Leftwich was lying on the bed. When Mrs. Brewer told Leftwich the marshal was coming, he got up and came towards the dóor. He did nothing but come towards the door. He was just like any one walking towards the door. Rollins stopped when he got in front of the door.
Dr. Mason testified that he went to the hotel on Sunday morning after the shooting and found Leftwich lying in the room with his feet towards the window in the north and his head very close to the door. The door was slightly ajar, not fastened; he pushed the door sufficiently to get in, and after getting in • drew the body away from the door sufficiently to al- ' low any one to get in. He found a wound in the head of the deceased; it was on the left side just back of a line drawn from the center of the head down to the ear, just back of what is called the posterior median ■ line. He did not use a probe, but his judgment was that the ball took a backward direction towards the báse of the brain. A man could not live very long with such a wound. His opinion was that the man had been : dead practically all night, six or eight hours. If the bullet that made the lower hole in the door struck the deceased he must have been in a crouching position with his head very close to the door. His opinion was that there would be some movement on the part of the deceased after receiving such a wound, that he shifted 'his position after he was shot. His head was not in a
Tbe coroner testified and described tbe wound as Dr. Mason bad, and stated that be made an examination with a probe. Tbe wound was in tbe left side of tbe bead near tbe median line over tbe ear, and tbe bullet bad penetrated tbe skull and gone through tbe brain and lodged somewhere near tbe base of tbe skull inside; it ranged a little backward. Death was practically instantaneous. From a wound of that kind deceased might have struggled some in dying as there is some reflex action in tbe muscles of all animals. This was practically all tbe evidence in tbe case.
The court submitted tbe case to tbe jury for manslaughter in tbe fourth degree by reason of culpable negligence and gave tbe usual instructions as to tbe competency of tbe defendant to testify in his own behalf; as to tbe right of tbe jury to judge of tbe credibility of tbe witnesses; tbe presumption of innocence and. reasonable doubt, and an instruction as to tbe right of tbe jury to weigh tbe -several statements of tbe defendant in tbe case.
On tbe -part of the defendant tbe court gave tbe following two instructions:
“2. Tbe court instructs tbe jury that tbe defendant, W. T. Rollins, on the 19th day of October, 1908, was tbe city marshal of tbe city of Cardwell, in Dunklin county, Missouri, and as such officer bad tbe right, and it was bis duty, to arrest any person violating tbe ordinances of such city, or tbe laws of tbe State. And if you find from tbe evidence, that tbe deceased, J. A. Leftwich, was boisterous and disturbing the peace of tbe household of Mrs. P. R. Brewer, and that defendant was called in to arrest him and remove him from said bouse, then defendant bad tbe right to make such arrest.
“3. Tbe court instructs tbe jury that if you believe from tbe evidence, that tbe wound that occa*534 sioned the death of J. A. Leftwich was the result of misadventure, and if you further find that the defendant discharged his said pistol at and towards the bottom of the door of the room in which J. A. Leftwich then was, and that defendant fired off his said pistol with the intention upon his part of intimidating the said J. A. Leftwich so that he would submit to lawful arrest at the hands of the defendant, and at' the time of such discharge of said pistol, the defendant had no reason to believe, and did not believe, that the shot so fired would strike or wound the said J. A. Leftwich, you cannot find the defendant guilty of manslaughter in the fourth degree unless you shall find and believe from the evidence that defendant was culpably negligent, that is, unless you find and believe from the evidence that defendant was guilty of 'a recklessness and carelessness incompatible with the proper regard for human life.”
The defendant also asked another instruction which the court refused, and which will be noted further on in the course of the opinion.
I. The information was in all respects sufficient. An indictment or information for murder in the first degree, under our statutes, embraces every grade and every degree of criminal homicide from the highest to the lowest. [State v. Moxley, 115 Mo. l. c. 651; State v. Scheiller, 130 Mo. 510; R. S. 1899, sec. 2369.] The prosecuting attorney in this case, elected to proceed for murder in the second degree only. This he had the right to do, and the court after hearing the evidence, instructed for manslaughter in the fourth degree caused by culpable negligence. It was entirely competent for the court to instruct the jury as to this lower degree, notwithstanding the information was for the highest degree. [State v. Frazier, 137 Mo. l. c. 340, 341; State v. Feeley, 194 Mo. l. c. 323, 324.]
This instruction, however, is assailed by the defendant for another and a different reason, namely,
Moreover, the court did not predicate the guilt of the defendant in the most remote degree upon his want of right or power to make an arrest. On the contrary, the court instructed the jury that if the deceased was boisterous and disturbing the peace of the household of Mrs. Brewer, and the defendant was called in to arrest him and remove him from the house, he had a right to make such arrest. The only part which the right to make an arrest played in this case was that of tending to show the rightfulness of the defendant at the scene of the homicide and the absence of all malice towards the deceased. But when defendant invokes the doctrine of the right of arrest, he overlooks the fact of his failure to make an arrest or any reasonable effort to make an arrest. Section 2540, Revised Statutes 1899, provides: “An arrest is made by the actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.” Section 2541 provides: “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.” [State v. Green, 66 Mo. l. c. 649 et seq.]
All the testimony in this case tends to show that the officer, at no time indicated to the deceased that he had come to arrest him. On the contrary he says himself that the only thing that he said to the deceased was, “Halt,” and then fired over his head. He says the deceased was merely coming to shut the door.- He was making no effort to evade arrest or escape from, the officer. According to the defendant’s own evidence, he was not called upon to use Ms revolver to compel a submission to arrest, nor did he use it for any such
II. There is no merit in the criticism of the third instruction given by the court of its own motion on the credibility of the witnesses. And the same may be said to the complaint of the fifth instruction given by the court in regard to verbal statements made by the defendant. They were entirely proper.
IY. The jury having failed to assess the punishment after having found the defendant guilty, it was entirely competent for the court to assess the same, as it did. [Sec. 2649, R. S. 1899; State v. Foster, 115 Mo. 448.]
After a careful review of the record we have been unable to find any reversible error therein, and the judgment of the circuit court must be and is affirmed.