State v. Browers

¶1 (concurring)’.- — I concur in the result, and the rulings of the principal opinion oil’the first'and second assignments of error, and agree that the trial court should have given an instruction on self-defense as a part of the law of the ease under Sec. ■ 4070(4) 1 although the appellant did not request it, and raised the *1200 point for the first time in. his motion for new trial. State v. Graves, 352 Mo. 1102, 1119(16), 182 S. W. (2d) 46, 56(26). But I think the instruction should have been given because there was substantial evidence showing the officer, Blue, used, more force than was reasonably necessary in malting the arrest, State v. Nolan, 354 Mo. 980, 991(7), 192 S. W. (2d) 1016, 1022(4)—and do not agree to the reason given in the principal opinion, namely, that no officer has a right to shoot in making an arrest for a misdemeanor, although the accused is trying to escape.

¶2 The two decisions 2 cited by the principal opinion in support of that holding were overruled in State v. Ford, 344 Mo. 1219, 1225-6, 130 S. W. (2d) 635, 639(3). However, in that case the officer had a warrant for the :arrest of a misdemeanant, and the latter resisted and was shot and killed- by the officer, the latter being the defendant in the ensuing prosecution for the homicide. In the : instant case1 the officer did not have a warrant; he shot at but did not hit the -misdemeanant while -in flight ■ (hot resistance); 'and the- misdemeanant’s brother, the present appellant, interfered; shot and wounded the officer (as the State contends); and now - invokes self-defense, or rather defense of his' brother. The Ford case considered, but did not decide,- what the law would be when the misdémeanant flees. There is enough difference in the facts of the two cases to call for further discussion of that-’question. In doing-that it is necessary to review the facts immediately attending the arrest.

¶3 Most of them are sufficiently set out in the second paragraph of the principal opinion. . But it should be further stated that when the guardsman Lamons was talking to appellant and his brother about their having just previously run into or sideswiped the guardsman’s jeep "find run it off the highway without stopping at the scene of the accident, etc., (as the evidence shows) in violation of Sec. 8401(f), one of the brothers said, “Hell yes, we-run over them'.up here, we run over one last week”; and later said, “You had -better go on or we will run over you again. ’ ’ - -Lamons said they ‘ ‘ seemed belligerent. ’ ’ A witness Clark- saw them from'- a: distance and knew they were quarreling. And the appellant affirmatively testified his' brother Irvin “had a little dispute” with city marshal Blue, who was 53 years old, whereas appellant and- his brother were young men. Irvin Browers did not testify. ■ •

¶4 So we have this situation. When the marshal was attempting to arrest Irvin Browers, it must have been either for the sideswiping of the jeep without’ stopping at the scene of the accident, or-for breach of the peace in quarreling with and. threatening the two guardsmen, or the marshal himself, on the public and crowded street *1201 in front of the courthouse. The first offense is a felony, under Sec. 8404 (e), and the breach of the peace is a mis demeanor under Sec. 4636. See also: 5 C. J.; sec. 31, p. 401; 4 C. J. S., sec. 6c, p. 589; 4 Am. Jur., sec. 73, p. 52, see. 74, p. 53.

¶5 If it was for the felony, the marshal had the right, to make the arrest on reasonable suspicion, State v. Raines, 339 Mo. 884, 889(2), 98 S. W. (2d) 580, 583(3). And to justify'that suspicion he had the statements of the two guardsmen, the fresh physical evidence afforded by the damaged or disfigured jeep, itself, and the attitude and conduct of the appellant and his brother Irvin. ' If it was the misdemeanor he needed to have a warrant, or the offense must have be'en committed in his view, as was the undisputed fact. State v. Burnett, 354 Mo. 45, 48(1), 188 S. W. (2d) 51, 53(1); State v. McBride, 327 Mo. 184, 188(5), 37 S. W. 423, 425(5).

¶6 Assuming the arrest here was for the misdemeanor of breach of the peace — which concededly was. committed in the marshal’s presence — is the broad holding of the principal opinion correct, that no officer has a right to shoot in making an arrest for a misdemeanor? Or, putting the question more narrowly, is that true when the offense is breach of the peace, and the misdemeanant is merely fleeing, and not resisting by physical violence? In my opinion.the rights of the officer are governed by specific statutes to be referred to presently.

¶7 The reasoning of the Kaercher case, supra, marginal note 2, cited by the principal opinion,.for withholding the officer’s right to shoot a misdemeanant in flight, is as follows: “As the lawmaking power itself could not inflict the death penalty as a'punishment for a misdemeanor, ‘it would ill become the “majesty” of the law .to sacrifice a human life to avoid a.failure of justice in the case of a-petty-offender who is often brought into court without- arrest and -dismissed with a nominal fine.’ ” .

¶8 This doctrine implies that the officer should not have the right to shoot and kill, in making, an arrest, unless the crime charged is a capital offense, or at least not such as is punishable in a minor way, as by a small fine. But the rule is w7ell established, as to any felony, that the -officer may use such force as is reasonably necessary to effect the arrest, even to the point of killing the accused. 3 And of -the hundreds (probably) of statutory felonies in this state only four are capital offenses. 4 A felony is simply an offense punishable by imprisonment in the penitentiary; See. 4864.- And in a great many of-these the’punishment-is graduated down to much .less than, could be imposed for a misdemeanor; Thus, as it happens, of the two offenses involved *1202 in this case, the punishment for disturbing the peace is fixed by Sec. 4853 at jail' imprisonment not exceeding one year, or a fine not exceeding $1,000, or both; whereas the punishment for the felony of leaving the scene of a motor vehicle accident can run as low as a fine of $1 under Sec. 8404(a).

¶9 ■ Now turning to our specific statutes governing arrests and the force an officer may use in making them. As to breach of the peace, the third clause of Sec. 4379 provides a homicide shall be deemed justifiable “when necessarily committed ... in lawfully keeping or preserving the peace.” The general statute, Sec. 3960, 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.” This section is in the Article on Process, and covers both felonies and misdemeanors. -As will be noted, it makes no distinction between a culprit in flight and one who resists. The officer’s right is the same in. both instances.

¶10 ■ And the immediately preceding Sec. 3959 provides: “An arrest is made by an 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.” The words “or otherwise”, show this section is not confined to arrests made on a warrant, but applies also when an arrest may properly be made without a warrant, as is so often true of breach of the peace. The section also shows a person under arrest is in the' ‘ ‘ custody ’ ’ of the officer.

¶11 -Oorrelat'ively, Sec’s 4291, 4292 denoimce resistance to an officer in making an arrest by the service of'a warrant, or “in the discharge of any official duty,” which would cover arrests without a warrant in proper cases, for it is the officer’s official duty to make such arrests, and he is subject to punishment if he wilfully or corruptly fails to make them. See. 4315. Aiding a prisoner to escape from the “custody” of an officer is likewise denounced by See. 4304'.

¶12 •It cannot be denied that if the initial arrest of Irvin Browers in this case was “lawful”, then he had no right to. flee after he had submitted to arrest, nothwithstanding he protested once that he “hadn’t done anything to be arrested for.”' He knew the facts preceding the arrest, and they are undenied. Likewise, if the arrest was lawful, his brother, the appellant Harvey Browers, who knew the officer was city marshal and deputy sheriff and all the preceding circumstances, had no right to resist the arrest, and could not do so on the ground of self-defense: State v. Cushenberry, 157 Mo. 168, 183(7), 56 S. W. 737, 743(7); State v. Noland (Mo. Div. 2), 229 S. W. 198, 199(2); State v. Lowry, 321 Mo. 870, 882(6), 12 S. W. (2d) 469, 473(7); State v. Batson, 339 Mo. 298, 304, 96 S. W. (2d) 384, 388(5); *1203 State v. Nolan, 354 Mo. 980, 988(3), 992(8), 192 S. W. (2d) 1016, 1020(7), 1023(16).

¶13 In my opinion the record is devoid of any evidence tending to show the grounds for the arrest of Irvin Browers' were insufficient to make it legal. But there is evidence that the officer used more force than-was reasonably necessary in attempting to maintain, the arrest. Officer Blue testified that when Irvin Browers broke away from- him and fled across the street to the barber shop,1 he (Blue) fired his revolver once into the pavement. But two State’s witnesses, one of them being the guardsman Lamons, testified he fired in the direction of the fleeing man, and a number of defense witnesses. said -the same. This was before the officer had made any effort to apprehend the fugitive by pursuit or other means. And after the appellant Harvey Browers had interfered, and then taken refuge behind a bystander, there is testimony from several witnesses that officer Blue called him a s-o-b, and threatened to kill him, indeed, both him and the bystander. After that the struggle ensued between appellant, and the officer, in which the State contends the latter, was shot. This was sufficient to justify an instruction on self-defense in behalf of the. appellant. 4 Am. Jur., sec. 73, p. 52; 5 C. J., sec. 59, p. 424; 6 C. J. S., sec. 13a, p. 612; State v. Havens, supra, 177 S. W. (2d) l. c. 628(5); State v. Nolan, supra, 354 Mo. l. c. 992(7), 192 S. W. (2d) l. c. 1022(14).