text:
    THE STATE, Appellant, v. BOYD.
    Division Two,
    May 22, 1906.
    1. INDICTMENT: Duplicity: Neglect of Duty by Police Officer: Bawdy Houses. An indictment charging neglect of duty by a police officer in failing to prevent the setting up or keeping of bawdy houses in his district, is not bad for duplicity merely because it charges that the officer failed to suppress any one or all of the fourteen bawdy houses alleged to have been set up and maintained in his district.
    2. -: Police Officer: Neglect of Duty: Criminal Offense: No Charge of Willfulness or Corruption. An information charging a police officer with neglect of official duty to suppress bawdy houses, having for its purpose, not only the removal of the defendant from office, but his conviction of a criminal offense which may deprive him of his property and his personal liberty, is fatally defective if it does not charge that his official misconduct was willful, corrupt or fraudulent.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      Chas P. Williams for the State.
    (1) The New York cases furnish the only direct authority. People v. Herlihy, 73 N. Y. Supp. 236, 170 N. Y. 584; People v. Diamond, 76 N. Y. Supp. 57. (2) Keeping a hawdy house is an indictable misdemeanor in the city of St. Louis. G. S. 1865, chap. 206, sec. 19; State v. Clarke, 54 Mo. 17; State v. DeBar, 58 Mo. 395; State v. Lewis, 5 Mo. App. 465; Laws 1879, p. 89; R. S. 1899, sec. 2197. (3) There is direct statutory imposition .of the duty to prevent and arrest such offenders in the ctiy of St. Louis. R. S. 1899, secs. 6232, 6212, 6213. These statutes embody in these respects a command to individual policemen. State v. Grant, 76 Mo. 236; State v. Holcomb, 86 Mo. 380; State v. Hancock, 73 Mo. App. 19. (4) The use of the word ‘‘ corruptly ’ ’ is not necessary. People v. Bedell, 2 Bill 196; Rex v. Holland, 5 D. & E. 623; People v. Norton, 7 Barb. 479; Rex v. Saintsbury, 4 D. & E. 457; People v. Herliby, 73 N. Y. Supp. 236; State v. Miller, 100 N. C. 543; State v. Rags-dale, 59 Mo. App. 590; State v. G-rassle, 74 Mo. App. 316; State v. Gardner, 2 Mo. 23, distinguished. (5) The question of duplicity: State v. Foy, 98 N. 0. 745; People v. Herlihy, 73 N. Y. Supp. 236; “Woodford v. People, 62 N. Y. 117; State v. Heinze, 45 Mo. App. 403.

      Boyle, Priest & Lehmann, Thomas J. Rowe and Simon S. Bass for respondent.
    (1) The indictment is mutifarious, and bad for that reason. 1 Bishop’s New Crim. Proc. (4 Ed.), sec. 432; State v. Jamison, 90 N. W. 622; People v. Flaherty, 57 N. E. 73; People v. Williams, 65 Pac. 323; State v. Healy, 50 Mo. App. 243; State v. Harrison, 62 Mo. App. 112; State v. Fox, 148 Mo. 517. (2) The indictment does not show knowledge by defendant of any of the matters concerning which it is alleged he was guilty of neglect. State v. Leigh, 3 Dev. & Bat. 127; State v. Darling, 36 Atl. 632. (3) The indictment pleads only legal conclusions, and states no facts showing a neglect of duty. State v. Burke, 151 Mo. 142; U. S. v. Hess, 124 IT. S. 483; Railroad v. Comm’rs, 19 Fed. 679; Ex parte Jackson, 45 Ark. 158. (4) The alleged neglect of duty must be shown to be corrupt. State v. Gardner, 2 Mo. 23; State v. Hein, 50 Mo. 362; State v. Pinger, 57 Mo. 243; State v. Grassle, 74 Mo. App. 313; Smith v. Sing, 68 Cal. 324; Triplett v. Numter, 50 Cal. 645.
   FOX, J.

This cause is certified to this court by the St. Louis Court of Appeals. The respondent was indicted for official misconduct. To the indictment he interposed a demurrer, which was by the St. Louis Court of Criminal Correction sustained, and from the action of the court upon the demurrer the State prosecuted its appeal to the St. Louis Court of Appeals. In that court the assignments of error were heard and the conclusions of the court announced in an opinion by Bland, J., Rbyburn, J., dissenting. The dissent by one of the judges of that court furnished the basis for certifying the cause to this court.

The majority opinion of the St. Louis Court of Appeals is as follows:

“Omitting caption, the indictment is as follows: ‘The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court duly impaneled, sworn and charged, upon their oath present, that at the city of St. Louis aforesaid, and on the fifteenth day of February, in the year one thousand and nine hundred and three (and for a long time prior thereto), one Samuel J. Boyd was a public officer and a person holding trust and appointment, within and for the city of St. Louis and State of Missouri, to-wit, a member of the metropolitan police force and department of the city of St. Louis, of the grade and designation of captain of police, duly appointed, enrolled and employed by the Board of Police Commissioners of said city, assigned and detailed to, and the principal officer of police, and in command of that portion of territory of said city known and designated, for the purpose of police government, and duly established by the said Board of Police Commissioners of said city, as the Fourth Police District of said city; and that the said Samuel J. Boyd was then and there (and for a long time had been) by virtue of the laws of the State of Missouri, a state officer.
“ ‘That he, the said Samuel J. Boyd, was then and there (and for a long time prior thereto had been) duly appointed and designated as such captain of police by the said Board of Police Commissioners of said city, under and by virtue of the laws of the State of Missouri, and was then and there (and for a long time prior thereto had been) duly commissioned, sworn and assigned and acting as such captain of police, and in command, control, supervision and direction, for the purposes of police government and to enable the said Board of Police Commissioners to perform the duties imposed upon them by law, of the said Fourth Police District of said city.
“ ‘That under and by virtue of the laws of the State of Missouri it was the official duty of the said Board of Police Commissioners of said city, and of every member of the said police force and department of said city appointed, enrolled and employed as such by the said Board of Police Commissioners, and the official duty of him, the said Samuel J. Boyd, as such member of said police force and department, and as such captain of police, and as such police officer, and as such state officer, at all times of the day and night, within the boundaries of said city, to preserve the public peace, to prevent crime and arrest offenders, to prevent and remove nuisances on all streets and highways and other places, and to see that all laws of the State of Missouri, relating to vagrants and disorderly persons, were enforced.
“ ‘That he, the said Samuel J. Boyd, as such captain of police, then and there (and for a long time prior thereto) had under his command and subject to his orders numerous sergeants and patrolmen of police, members of the said police force and department, and was vested with adequate power and authority as such captain of police in command of said Fourth Police District, and as such public and state officer, for the proper and efficient performance of the duty aforesaid.
‘ ‘ ‘ That at the said city of St. Louis, and on the said fifteenth day of February, in the year one thousand nine hundred and three (and for a long time prior thereto) and within the territory so known and designated as the said Fourth Police District of said city so commanded by him, the said Samuel J. Boyd, as captain of police as aforesaid, there were and had been, for a long time, continuously, openly and notoriously set up, kept and maintained certain common bawdy houses and brothels; and that then and there and for a long time prior thereto unlawful and disorderly conduct and practices were committed in each and all of said houses, and divers common prostitutes and bawds, vagrants and disorderly persons resorted to and resided in sard houses for the purpose of common prostitution and bawdry, and solicited men for the purpose of sexual intercourse therefrom and in front thereof; which said common bawdy houses and brothels were so set up, kept and maintained in said Fourth Police District in certain buildings situated upon certain streets and highways of said city, known and designated as North Twelfth street, North High street, Linden street and Gay street; which said buildings were known and designated respectively by the following street numbers, to-wit, the building designated as number 703 North Twelfth street; the building designated as number 705 North Twelfth street; the building designated as number 707 North Twelfth street; the building designated as number 709 North Twelfth street; the building designated as number 711 North Twelfth street; the building designated as number 713 North Twelfth street; the building designated as number 721 North Twelfth street; the building designated as number 726 North Twelfth street; the building designated as number 821 North Twelfth street; the building designated as number 1205 Linden; the building designated as numbers 1208 and 1210 Linden street; the building designated as number 1235 Linden street; the building designated as number 721 North High street; wherein the said common bawdy houses and brothels were then and there (and for a long time had been) so continuously, openly and notoriously set up, kept and maintained respectively by Fannie Adams, Rose Brown, Birdie Hill (alias Hall), Becky Weinstein, Lena Cohen (alias Smith), Ida Smith, May Smith, Annie Brown, Becky Schwartz, Martha Sharp, Annie Smith, R. Johnson, Lillie Smith and May Connor; that it was the official duty as aforesaid of the said Samuel J. Boyd, as captain of police as aforesaid, in command of said Fourth Police District as aforesaid, and as such police officer and state officer as aforesaid, to arrest and cause to he arrested the said Fannie Adams, Rose Brown, Birdie Hill (alias Hall), Becky Weinstein, Lena Cohen (alias Smith), Ida Smith, May Smith, Annie Brown, Becky Schwartz, Martha Sharp, Annie Smith, R. Johnson, Lillie Smith and May Connor, for violation of the law and for crime in so setting up, keeping and maintaining said common bawdy houses and brothels as aforesaid in said city of St. Louis, that they might be dealt with according to law, and to prevent said violation of law and crime, and to prevent and remove such common bawdy houses and brothels as common nuisances, and to arrest and cause to be arrested said common prostitutes, bawds and disorderly persons as vagrants.
“ ‘That nevertheless the said Samuel J. Boyd, being such captain of police as aforesaid, and commanding said Fourth Police District, as aforesaid, and being such public officer and state officer as aforesaid, and then and there (and for a long time prior thereto) well knowing the premises as aforesaid, did then and there, unlawfully and willfully, wholly neglect and omit to perform his said official duty as aforesaid, and then and there continuously did unlawfully and willfully wholly neglect and omit to use and exercise and to cause to be used and exercised all proper, reasonable and effective means within his power and authority as such captain of police, and as such public officer and state officer, for the prevention of the setting up, keeping and maintaining of the said common bawdy houses and brothels and each of them, and for the detention and arrest of the persons so setting up, keeping and maintaining the same.
“ ‘But on the contrary, he, the said Samuel J. Boyd, captain, of police as aforesaid, and public officer and state officer as aforesaid, did thgn and there (and for a long time prior thereto) unlawfully and willfully suffer and permit the said common bawdy houses and brothels to be openly and notoriously set up, kept and maintained at and in the buildings aforesaid, and the said unlawful and disorderly conduct and practice to be openly and notoriously committed therein as aforesaid, without any interference on the part of him, the said Samuel J. Boyd, captain of police as aforesaid, and public officer and state officer, as aforesaid, and .without any proper, reasonable and effective endeavor on his part toward the suppression thereof, or toward the detection and arrest of the persons setting up, keeping and maintaining the same, and without any proper, reasonable or effective endeavor on his part for the enforcement of the laws of this State respecting common bawdy houses and brothels and for the preventing of the violation of the laws of this State in respect to the setting up and keeping of common bawdy houses and brothels, and in respect to vagrants and disorderly persons, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State. W. Scott Hancock,
“ ‘Assistant Circuit Attorney.’
“A demurrer to this indictment was sustained and judgment rendered on the demurrer, from which judgment the State appealed.
“The indictment alleges the existence of fourteen separate and apart houses of ill fame, giving street and number of each house, in the police district over which the defendant, as captain of police, had jurisdiction,, and alleges that it was his official duty to suppress these houses. The indictment further alleges that each of these fourteenhouses was kept and presided over by a separate person giving the name of each of the fourteen proprietresses, and that it was the official duty of the defendant to arrest, or cause to be arrested,, these persons for violating the law against the keeping of the character of houses described. It also alleges that these houses ‘were and had been, for a long time, continuously, openly and notoriously set up, kept and maintained; . .. . and that then and there for a long time prior thereto unlawful and disorderly conduct and practices were committed in each and all of said houses, and divers common prostitutes and bawds, vagrants and disorderly persons, resorted to and resided in said houses for the purpose of common prostitution and bawdry;’ and that it was the official duty of the defendant, as captain of police, to arrest these persons, as vagrants.
“It is nowhere alleged in the indictment that the offenses, for the commission of which it is charged it was the duty of defendant to make arrests, were committed in the presence or view of defendant, but that their commission was open and notorious and well known to the defendant. At common law, a sheriff, constable, or other police officer, has no authority to make arrests without warrants, for a misdemeanor not committed in his presence or view, only in exceptional cases. The offenses charged in the indictment as having been committed, do not come within the exception. [State v. Holcomb, 86 Mo. 371; State v. Underwood, 75 Mo. 230; 1 Bishop, on Criminal Procedure, sec. 638.] The inquiry, therefore, as to whether or not a police officer of the city of St. Louis may arrest for a misdemeanor not committed in his presence or view, becomes pertinent. The general duties required of police boards and police officers, in respect to the preservation of the peace, etc., are foupd in section 6212, Revised Statutes 1899. This section provides: ‘ They shall, at all times of the day and night, within the boundaries of said cities, as well on water as on land, preserve the public peace, prevent crimes and arrest offenders. ’ etc. It has been held under this section, or rather the one of which it is a substantial copy (sec. 5, Acts of 1860, Laws of 1860-1, p. 448) that a police officer may, without warrant, arrest for a past misdemeanor, provided the officer making the arrest has reasonable grounds to suspect a misdemeanor has been, committed (State v. Grant, 76 Mo. 236; State v. Hancock, 73 Mo. App. 19) and that members of the metropolitan police force are officers of the State and as such are authorized to make arrests for violation of the law of the State. [State ex rel. v. Mason, 153 Mo. 23; State v. Evans, 161 Mo. 95.] In the revision of 1899, they are declared to be both state and city officers (R. S. 1899, sec. 6232). Their duty as defined by section 6212, supra, is ‘to preserve the public peace, prevent crime and arrest offenders.’ In the discharge of this duty, they may arrest, without warrant, for a past misdemeanor, or to prevent the commission of any crime, or for the purpose of preventing a threatened breach of the peace. It has been well said that ‘ where it is the duty of an officer to make an arrest, he is bound to make it.’ We conclude that the defendant not only had power to make arrests for misdemeanors not committed in his presence or view, but that it was his duty to arrest when he knew of the commission of any crime within the city.
“The indictment purports to charge three distinct omissions of official duty: First, the omission to take legal steps and to use lawful powers to prevent the’ setting up, keeping and maintaining of bawdy houses in the Fourth Police District. Second, the omission to arrest the fourteen keepers of bawdy houses in said district. Third, the omission to arrest the inmates and habitues of the fourteen houses in said district as vagrants.
‘ ‘ One of the grounds of demurrer is that the indictment is duplicitous and multifarious. Bishop, in his work on Criminal Procedure (vol. 1, sec. 432) says that duplicity ‘consists in alleging, for one single purpose or object, two or more distinct grounds of complaint or defense, when one of them would be as effectual in law as both or all. Duplicity in an indictment is the joinder of two or more distinct offenses in one count.’ This definition of duplicity in an indictment is approvingly cited in State v. Fox, 148 Mo. 525. In State v. Healy, 50 Mo. App. 243, it was held, that two distinct publications of the same criminal libel constituted an offense in itself, and an indictment that charged both publications in one count was bad for duplicity. In State v. Bridges, 24 Mo. 353, A and B were charged in the same count with betting on the result of an election, and C with becoming stakeholder. The indictment was held bad for duplicity.
“The setting up or keeping of a bawdy house is a misdemeanor punishable by a fine of not less than two hundred nor exceeding one thousand dollars. [R. S. 1899, sec. 2197.] On conviction of vagrancy, the statute (sec. 2228, R. S. 1899) declares the punishment shall be ‘by imprisonment in the .county jail not less than twenty days, or by a fine not less than twenty dollars, or both such fine and imprisonment.’ If the defendant was put upon trial under this indictment on the charge of failure to arrest the fourteen keepers of the bawdy houses named and failure to arrest the inmates and habitues of said houses, six of the jurors might believe him guilty of an omission to arrest Fannie Adams, or any one or more of the fourteen keepers of the houses named, while the other six might believe him not guilty of an omission to arrest, as a vagrant, some inmates or habitues of some one or more of the fourteen houses, and thus the twelve agree on a verdict of guilty, when in reality only six agreed that the defendant was guilty of one and the same omission of duty charged in the indictment, and the other six believed him not guilty of that omission, • but guilty of some other omission of duty as charged in the indictment. [People v. Williams, 65 Pac. 323.] If, therefore, the purpose of the indictment was to charge that the omission of duty consisted in the failure to arrest the various offenders named and described in the indictment, it is bad for duplicity. But we do not think it was the intention of the pleader to charge the omission to arrest the offenders named as the gravamen of the offense.
“The indictment is, as near as may be, a copy of the indictment in the case of People v. Herlihy, 73 N. Y. Supp. 236, in which it was charged that there were one hundred and nine bawdy houses in the precinct over which defendant had jurisdiction as captain of police. The street and number of each house was stated. The neglect of duty charged was that the-defendant as police officer, ‘did there continuously, unlawfully and willfully wholly neglect and omit to enforce and prevent violations of the law of this State in respect to the keeping and maintenance of such houses of ill-fame and prostitution, etc. It was contended that the indictment was bad for duplicity, that it charged in one count one hundred and nine distinct offenses. In respect to this contention, the court said: ‘We are of the opinion that it does not. It is true that, if the defendant willfully and knowingly permitted one house of ill-fame to be maintained within his precinct, he was guilty of the crime charged in the indictment; but the allegation that he permitted over 100 of such houses to be maintained does not render him the less guilty, nor does it charge him with an additional offense. The crime is the same. The gravamen of the offense alleged is neglect of duty in failing to suppress or close such houses, and in this respect the charge is analogous to one of conspiracy, which consists in an unlawful and corrupt agreement of the parties to it to do an unlawful act, which agreement is entirely distinct from the unlawful act, which the parties had in mind when they entered into the agreement or conspiracy. For this reason it has been held that parties who enter into a conspiracy are, by that act, guilty of but one offense, whether their agreement is to commit one or many crimes. [State v. Kennedy, 63 Iowa 200.] Here the offense of which the defendant is charged, as already indicated, consists in his willful omission and neglect of duty to suppress and prevent the maintenance of houses of ill-fame within his precinct at the time specified. This is the charge, and, if he is guilty of it, then he is guilty of but one offense, and it matters not whether there be but one house or upwards of 100, as alleged.’ The duty of the defendant, as police officer of the city of New York, was, under section 315, of the Greater New York charter, to ‘carefully observe and inspect all . . . houses of ill-fame or prostitution and houses where common prostitutes resort or reside, . . . . and to repress and restrain all unlawful and disorderly conduct or practices therein,’ etc. This section of the charter was a statutory warrant directed to the police officer, and comprehended all the houses of the character named in it, not one singly, but all singly and collectively, and directed the officer to' repress the evil, whenever and wherever it was found to exist, whether in one or in many houses.
“By placing the indictment in the case of People v. Herlihy, 73 N. Y. Supp. 236, and the one in hand, side by side, we see that the pleader patterned after the New York indictment, and intended to charge, and did charge, the identical offense alleged in that indictment which, to use the language of the court in the New York case, ‘consists in his willful omission and neglect of duty to suppress and prevent the maintenance of houses of ill-fame within his precinct at the time specified.’ The gravamen of the offense charged against the defendant is that he willfully and unlawfully permitted houses of ill-fame to be set up, kept and maintained in his district at the time specified in the indictment. The allegations of omission of duty to arrest the offenders named and described are but amplifications of the principal fact charged, and the indictment is valid if there is any statute of this State, charter provisión or ordinance of the city of St. Louis, which makes it the duty of police officers to prevent the setting up, keeping and maintaining of bawdy houses in said city; there is no state statute that makes it the special duty of the board of police, no provision of the kind is found in the city’s charter, nor has the legislative department of the city passed any ordinance making it the special duty of the board of police to prevent the setting up, keeping and maintaining of bawdy houses in the city limits. But the setting up or keeping of a bawdy house is a crime and it is the duty of the board of police to ‘prevent crime and arrest offenders;’ hence, it is the duty of the metropolitan police force to prevent . the setting up or keeping of houses of ill-fame within the city limits. The only power, however, they may exercise in the performance of this duty is to arrest the offenders, when they are known to them. Under this view of the law, we think it competent, under the allegations of the indictment, to show that houses of ill-fame were permitted by defendant, as captain of police, to be notoriously kept in his district, with his knowledge, and that he made no reasonable effort to repress them by arresting the keepers and taking them before the courts of justice to answer for their crimes. As we construe the indictment it charges a single offense, to-wit, the omission of defendant as a police officer to take any steps •to suppress any one or all of the fourteen bawdy houses alleged to have been set up and maintained in his district. To extend the scope of the indictment so as to cover every omission of duty incidentally charged, as failure to arrest any one or all of the fourteen keepers of the fourteen houses or any of their inmates would require the defendant on the same trial to defend against many separate and distinct offenses all charged in one count of the same indictment.

“Judgment reversed and cause remanded.

Goode, J., concurs; Beyburn, J., dissents. ’ ’

OPINION.

It is apparent upon the record in this cause that this court is simply confronted with the one legal proposition, that is, does the indictment fail to properly charge the defendant with an offense under the law, and did the court correctly sustain the demurrer interposed to the indictment?

Upon a careful consideration of the able opinion hy the learned and esteemed judge of the St. Louis Court of Appeals, so far as concerns the discussion of the legal proposition to which his attention was especially directed, that of “duplicity,” and the conclusions announced upon that question, we are of the opinion that the law was clearly and correctly announced. But upon grounds not discussed in the opinion, we have reached the conclusion that the indictment in this cause did not properly charge the offense, and the action of the court in sustaining the demurrer was proper.

The defendant is charged as a public officer of this State with a criminal offense, that of neglect of duty in the discharge of the duties of his office. "While there is no dispute upon the proposition that under the provisions of law the penalty of removal from office may he imposed in the absence of a charge of improper motive in the conduct of the officer, yet when we undertake to convict him of a criminal offense, such as malfeasance and misconduct in the administration of the duties of his office, it is essential to this charge that an improper motive for such conduct he alleged. This principle was fully, recognized hy the framers of the organic law of this State. Section 7, article 14, Constitution of Missouri, provides: “The General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty.”

This provision of the Constitution clearly contemplated that the General Assembly had provided for the imposition of penalties upon officers for violation or neglect of duty, and with equal clearness indicated the conception of the framers of that provision as to the essential elements of such wrongful acts and neglect of the officials which subjected them to the imposition of such penalties, that is, “willful, corrupt or fraudulent violation or neglect of official duty.” In other words, this constitutional provision simply means to recognize that the General Assembly had provided penalties for the willful, corrupt or fraudulent violation or neglect of duty by public officials, and then commanded it in addition to this to make provision for the “removal from office of county, city, town or township officers.” It will be noted that the authority under this provision to provide for the removal from office of the officers designated is not restricted to the grounds of removal specified in section 7 of the Constitution, that is, “willful, corrupt or fraudulent violation or neglect of official duty,” but it is a delegation of power to make such reasonable and proper provisions for the removal of officers as may seem just (in addition to the penalties imposed for the offenses especially designated), even though the act of the officers may not amount to a willful, corrupt or fraudulent violation or neglect of duty. [State ex rel. v. Walbridge, 119 Mo. 383.]

The statute upon which this prosecution is predicated provides: * ‘ Every officer or person holding any trust or appointment, who shall be convicted of any willful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, of by both such fine and imprisonment.” This statute was in full force at the time of the adoption of the constitutional provision herein referred to, and the conclusion is irresistible that the framers of section 7 of our Constitution had in mind all provisions of the law imposing penalties upon officers for official misconduct, including the statute upon which this indictment is based. It could not be otherwise, for this statute, in express terms, imposes a penalty for violation or neglect of official duty. This being true, we have a construction by the organic law of this State as to the character and nature of the violation or neglect of official duty which subjects the offender to the penalty imposed by the statute, upon which this prosecution is predicated, that is, for a “willful, corrupt or fraudulent violation or neglect of official duty. ’ ’

In a very early period of the history of this State, and of the organization of this court, there was in judgment before this court, in State v. Gardner, 2 Mo. 23, the question of the essentials of a valid indictment for misconduct in office. "While the terms of the statute applicable to that case were in many respects unlike the provisions of the statute now under discussion, yet the principles announced in that case, and the subsequent cases approving them, indicate very clearly the views of this court upon the proposition confronting us. The statute in force in the Gardner case denounced any willful misconduct by any justice of the peace, sheriff, coroner or constable. The indictment charged the offense in the language of the statute. McGirk, O. J., speaking for this court, said: ‘ ‘ The point made in this ease is, whether the indictment charges any misdemeanor. The words of the law are: ‘On conviction for any willful misdemeanor.’ The words of the indictment are: ‘That the defendant willfully issued a summons, ’ etc. And the circuit attorney insists that it being clearly a void summons, is a misdemeanor; and it having been alleged to be willful, the statute is satisfied and the indictment good. I am of a contrary opinion. In this- case two things are required: First, that the indictment should show facts as would amount to a misdemeanor independent of the word willful, and to make this out the indictment should charge the act to have been done knowingly and corruptly, and secondly, that the act should be alleged to be willful. ’ ’

In State v. Hein, 50 Mo. 362, notwithstanding the statute expressly enumerated the character and nature of the conduct of the officer which would constitute the offense, yet being a charge against an officer for malfeasance in office, the same strict rule in respect to allegations, that the act, or omission to act, was corruptly and knowingly done, was required. This case so clearly indicates the views of this court as to the essential elements of a charge against a public officer for misconduct in office, that we feel warranted in quoting fully from it. Wagner, J., in treating the proposition in that case, said: “This was an indictment against the justices of the Cooper County Court, and charges ‘that said parties, being then and there justices of the county court of said county, duly elected, etc., did then and there, under color of their offices as such justices, unlawfully, willfully, and by a gross abuse of authority in their official capacity, and under color of their said offices as justices of the said Cooper County Court, draw and order to be drawn on the treasurer of said county a warrant,’ etc. The indictment was demurred to as insufficient, and the demurrer was sustained and the State appealed to this court. The section of law under which this indictment was framed declares that ‘every person exercising or holding any office or public trust who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity, or under color of his office, shall, on conviction, be punished,’ etc. [Wagn. Stat. p. 487, sec. 16.] The act of which the officers must be guilty must be a willful act, but the indictment to be good should contain other averments. It should show such acts as. would amount to the imputed crime independent of the word ‘willful;’ and to make this out, the indictment should charge the act to have been done knowingly and corruptly, and the act should be alleged to be willful. ’ ’

It will be observed that the statute in that case expressly provided that any officer “who shall be guilty of willful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall be punished,” etc., yet it was held that an indictment in the language of the statute was insufficient, and being an officer it should be charged that the acts were knowingly and corruptly done. The terms of the statute upon which this indictment is based is far less descriptive of the offense than the one in judgment in the Iiein case; the offense under this statute, as applicable to this case, consists of “willful neglect to perform any duty enjoined upon the officer by law.”

If the principle of pleading announced in the case last cited is correct, and is longer to be followed, then we are unable to assign any reason why it should not be applicable to the case at bar. When the two statutes are fully considered, there is much stronger reason for applying the strict rule of pleading to the one under discussion than the other. In State v. Pinger, 57 Mo. 243, the statute upon which the prosecution was based provided, among other .things, “.that if any member of a county court shall knowingly vote for the appropriation, disposition or disbursement of any money or property belonging to the county, for any purpose not directed and warranted by law, such person so voting for such illegal appropriation, disbursement or disposition of any such money or property shall be deemed and taken, if such illegal appropriation, etc., be in fact effected, to have feloniously embezzled and converted to his own use,” etc. The indictment charged the offense in the language of the statute, and the only question was whether the indictment contained necessary averments to charge a substantial offense. The court in that case, after reviewing the principles announced in the Gardner and Hein cases, and fully approving them, proceeds to the discussion of the case it had in hand, and said: “Now the act we are construing says, that if the officer shall knowingly vote for the appropriation, for any purpose not directly warranted by law, he shall be deemed, etc. The indictment essentially follows this language, but that is not sufficient. . Of course the officer must knowingly do the act or cast the vote; if it was not so done, it would not constitute a crime under any circumstances. But he might do it intelligently and knowingly; and it might be a matter of doubt whether the appropriation was justified or warranted by law or not. If upon a construction of the law it was determined that the appropriation was not directed or warranted, surely the law would not criminally punish the officer for a mistaken judgment. It would be necessary, therefore, to make the further averment that he was actuated by some dishonest or corrupt motive. Hence, the best ■authorities are in harmony with the law, as previously adjudged by this, court. In speaking on this subject, "Wharton says, It is generally necessary to constitute the offense that the motive should be corrupt; and that in an indictment against an officer of justice for misbehavior in office, it is necessary that an act imputed as misbehavior be distinctly and substantially charged to have been done with corrupt, partial, malicious or improper motives, and above all with the knowledge that it was wrong, though no technical words in framing the charge will be required.’ [3 Whart. Crim. Law, secs. 2520-21.] This doctrine is supported with a great array of authorities.” To the same effect is State v. Kite, 81 Mo. 97; State v. Newkirk, 49 Mo. 85.

Appellant directs our attention to State v. Ragsdale, 59 Mo. App. 590. The conclusions reached in this case in no way conflict with the views expressed in that case. The Ragsdale case was correctly decided upon the statute upon which the charge was based. It is true the information was against a public officer, hut the statute denouncing the offense charged expressly designated the essential improper motive necessary to constitute the offense, hence an information in the language of the statute was sufficient. The principles of the cases upon which the conclusions in the case at bar are based are fully recognized by the learned judge in the Ragsdale casé.

State v. Grassle, 71 Mo. App. 313, is in accord with the views herein expressed, except the intimation in the opinion that it is only necessary to allege that the act was knowingly and corruptly done, when the charge is against a judicial officer. The statute imposing a penalty upon officers for misconduct in office, or any willful misdemeanor or neglect of official duty, makes no such distinction, and the rule must he treated as applicable to all alike.

The Constitution of this State, as herein pointed outj recognized that the penalties imposed upon officers, as provided by the statute upon which this prosecution rests, was for willful, corrupt or fraudulent violation or neglect of official duty, and then commanded the General Assembly to make additional provisions for the removal of officers designated by the Constitution ; hence, after a careful and thorough consideration of this subject, we have reached the conclusion that while officers may, in pursuance of reasonable enactments by the General Assembly or a municipality, be removed and the penalty of deprivation of office imposed upon them for misconduct in office, or inattention or neglect of duty, in the absence of a charge of any improper motive, yet under the law as it now stands, when it is undertaken to visit upon them the penalties of the statute for the commission of a criminal offense for such misconduct in office, it is essential that they he charged with willful, corrupt or fraudulent violation or neglect of official duty.

Ample provision is made for disposing of officials who fail to personally devote their time to the discharge of the duties of the positions for which they have been selected. [Sec. 18, art. 2, Const, of Mo.]

Doubtless the defendant in this cause, who was a captain in the police department, was under the supervision of the Board of Police Commissioners, and the chief of police, and for any failure to perform the duties incumbent upon him there is ample provision for removing him from office for such failure, but when the State seeks to convict him of a criminal offense which may deprive him not only of property, at least sufficient to pay the fine imposed, but as well his personal liberty, we are of the opinion that it is essential to the validity of a charge of this character to embrace in the allegations some improper motive in the malfeasance charged in the indictment.

Entertaining the views as herein expressed, and the indictment failing to contain the essential averments necessary to constitute the offense as herein indicated, the judgment of the St. Louis Court of Criminal Correction, upon the demurrer to the indictment, should be affirmed, and it is so ordered.

Gantt, J., concurs; Burgess, P. Jabsent.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. WALKER, Appellant.
    Division Two,
    May 22, 1906.
    MURDER: Self-Defense: Instruction: Evidence. Where there is no evidence that the defendant sought and provoked a difficulty with deceased in order to wreak his vengeance on him, it is error for the trial court to frit away the defendant’s right of self-defense and excuse the aggressor on such a ground. And in this case, which was a prosecution for murder, the evidence is examined and it is held that defendant was entitled to an unqualified instruction on self-defense.
    Appeal from Ozark Circuit Court.—How. Jno. T. Moore, Judge.
    Reversed and remanded.

      Seth Conrad and Livingston & Livingston for appellant.
    (1) There is no evidence, fact or circumstance in the whole case upon which a conviction can stand. The evidence, both for the State and for defendant, makes out a complete, absolute, perfect case of self-defense. (2) We challenge the State to find in this record one iota of evidence, any fact or circumstance, that would in the remotest degree authorize or justify the giving of the qualified instructions on self-defense. The giving of these instructions, whatever view the court may take of the case, is palpable and inexcusable error.

      Herbert S. Hadley, Attorney-General,- and N. T. Gentry, Assistant Attorney-General, for the State.
    The instructions were full and complete in every respect; they properly defined murder in the first and second degrees, reasonable doubt, the burden of proof, the weight to he given to defendant’s testimony, the credibility of the witnesses and self-defense. If any error was committed, said error was in favor of the defendant. State v. Hudspeth, 159 Mo. 196; State v. Inks, 135 Mo. 638; State v. McCarver, 194 Mo. 717.
   GANTT, J.

At the August term, 1905, of the Ozark Circuit Court, the prosecuting attorney .within and for said county filed an information charging the defendant Walker' with murder, in the first degree, of one Guy T. Harrison, at the said county, on the 21st day of July, 1905. The defendant was arrested and duly arraigned, and at the same term was put upon his trial, and was convicted of murder in the second degree, and his punishment assessed at ten years in the state penitentiary. From the conviction and sentence he appeals to this court.

The evidence on behalf of the State tended to prove that the deceased, Guy T. Harrison, was a member of the bar, residing at Gainesville, Ozark coilnty, and about thirty-eight years of age, and weighed about 180 pounds, strong and vigorous, and the defendant is about forty-five years of age, small in size, and had for many years been crippled and deformed as the result of rheumatism. Mr. Harrison, the deceased, owned a farm near the town of Gainesville, but resided in the town. The defendant lived on a farm adjoining this farm of the deceased. Dr. White testified that on the 21st of July, 1905, he examined the body of Guy T. Harrison, who was dead at the time; he found a gun-shot wound about two inches and a half below the collar bone, on the right side and just to the right of the breast bone. The bullet seemed to have entered something like two and a half inches below the collar bone on the right side of the breast bone and ranged backwards and somewhat downwards to the left. The ball went directly through the body and the deceased was shot from the front and the ball entered into his front. The shot was necessarily fatal. He testified further, that on the day after the killing he saw the defendant, and found in the corner of his mouth on the upper lip a bruise, the lip was mashed, and when he raised the lip he could see that the membrane was cut; there was also a small cut under his right eye as if he had been struck on his cheek bone; it was still black under the eye, and he gave him a wash to treat the wound in his mouth.

D. D. Turnbaugh testified that he resided in Gaines-ville and was publisher of the Ozark County Times on the 21st of July, 1905. He was acquainted with Guy Harrison in his lifetime; he examined the place where Harrison was killed on that day; it was located in a little plum thicket about thirty-five or fifty feet from the public road. There was a little open place in this thicket some four or five feet square in which the body was lying; this place was some four or five feet above the body of the branch which runs near there. He testified that a man standing in that little open place could not see a man going along the road, nor could a man going along the road see anyone in that open space without stooping down and looking under the grove; he testified that he made investigations for bullet marks on the timber and found bullet abrasions on three limbs, and he took a position to get in line with these abrasions; to have made the abrasions, in his opinion, a man would have had to get down on his right knee and used the left as a rest. They were not on a level, the bullet that made the abrasions was rising a little.

Mr. R. Q. Gilliland testified that he went to the scene of the killing on the day it occurred and looked for a trace of a bullet, but did not find it, but on the next Tuesday following the killing they found the course of the bullet; it had hit two limbs on some plum bushes; they were slightly ascending; he was of the opinion that a man would have to be down on his knees to have fired the ball in the direction it took.

Fait Hayes testified that he was working for the deceased on the day he was killed; he was on the farm of the deceased; he heard some four shots that morning within an hour and a half; no two of them were fired near each other; he was about a quarter of a mile from the place when the last shot was fired. Asa Scott was with him; Scott was cutting and the witness was hauling timber; just before the fourth shot was fired he heard some talking down where the body of the deceased was afterwards found, but he could not distinguish the words; he was just getting on his wagon when he heard the last shot fired and when he had gone about 150 yards, he heard his name called; he met another man by the name of George Scott, and heard some one call him Fait; when he got down there, he found Mr. Walker and Glennie Harrison, the son of the deceased. Addressing the defendant, he said, “What is the matter Lum?” Defendant and Glennie were then about fifty yards from where they found the body. He testified that he ran; going down to this place he heard hogs squealing and dogs barking and the shooting and someone calling him, and that was why he ran. When he asked the defendant what was the matter, the defendant said, “I have killed Guy.” He inquired of defendant, “Is he dead?” and he answered, “Yes, he is dead,” and he said, “You go to-town and take the news.” Witness then said to defendant, “Lum, this is a bad thing;” defendant said, “Yes, it is a bad thing, but he came on me with his gun. I want you to go in and see him, his gun is lying there by him cocked;” he went into the thicket and took Glennie with him,' also the defendant with him; when he reached the body of the deceased, he said, “I do not see any gun,” whereupon Glennie, the son of the deceased, said, “His gun is under him, he was lying on his face and I turned him over on his back. ’ ’ And Glennie then reached under his father’s body and picked up the gun by the stock. Witness said, “Glennie, is that your father’s gun?” and he said, “ Yes; ” he then said, ‘ ‘ Glennie, where were you ? ’ ’ and lie answered, “I was down there in the field.” He further stated that when he said to the defendant, “It is a had thing,” the defendant said, “Yes it is a had thing, hut I had to do it, or get shot myself;” he said’ “that the deceased came on him with his gun.” He testified that when Glennie took the pistol from under the hody of his father, it was cocked, the- hammer was clear back; he thought it was a self-acting pistol; he had the gun in his hand afterwards that day, it was still cocked; it was still lying there when he came back. Mr. Conkin, the sheriff, picked it up, he tried to let the hammer down, he put one thumb .on the hammer and pulled on the trigger, but it would not go down, and finding that it was fast, reached it over to witness, but witness said to the sheriff, “Do not hand me that thing cocked in that way, ’ ’ and the sheriff took it back and laid it down. The sheriff tried to break it the first time and could not, but he took it back and let it down. On the Monday after the killing, witness had a conversation with the defendant, the defendant came down to where witness was working. In that conversation, the defendant said he was down there getting some hogs out of the field on the day of the killing and had trouble trying to get them out, and they ran into the thicket and he followed them in there; he broke his shoe string and set down to tie his shoe string, and while he was sitting there tying his shoe string, the deceased came up the road and stopped and looked up the road and then down the road and defendant spoke to the deceased and said, “Guy, what are you doing here?” and the deceased answered, “I am killing these d--hogs, by G-.” Defendant says, “Guy, don’t you know it is wrong to butcher up a man’s hogs that way?” whereupon deceased says; “No, I am going to kill every G--d--one of them, and you too,” and then he said the deceased just came right up to him before he could get up to do anything at all; he never thought of having any trouble with him only to talk the matter over, but Guy, the deceased, came right up on him and drew his gun, and he kind of stumped his toe as he came and stumbled towards him and punched defendant in the mouth with his gun, and he, defendant, discharged his gun about that time; when Guy came up to him, the defendant’s gun was lying to the side of him and he said, when the gun was discharged, “Lord have mercy, I have let my gun go off. ’ ’ Witness testified that he had known the defendant six or seven years, and knew his physical condition; that defendant could not straighten out his fingers. He testified that defendant told him how he cocked his gun, he did it with the side of his hand; he said he was still down when Guy came on him with the gun; he called witness to his help, and said, “He came on me with his gun, and hurt my lip right there.” He said, “He hit me there, or something like that.” On cross-examination, the witness stated that he went to work that morning about seven o ’clock, and Scott was working with him; they were engaged in building a new string of fence; he had been out working maybe three quarters of an hour when he heard the first shot, and then in perhaps three quarters of an hour after that he heard another shot, and the hogs squealing and the dogs barking, and he heard a third shot; it was something like an hour and a half from the third shot before he heard the fourth shot, and he heard loud talking just before this last shot was fired. The loud talking was continued up until this last shot was fired; he knew of no one else being in that field that morning outside of himself and Scott, except Glennie Harrison. When he left to go to town to take the news, he left Glennie Harrison, George Scott and the defendant down there, and when he came back with the sheriff, the pistol was lying just where it was when he left.

Glennie Harrison, the son of the deceased, testified that he was fifteen years of age; that on the morning of the killing he was riding horseback and had a dog with him to run the hogs out of the field; there was corn growing in the field; he ran some of the hogs ont through the water-gate, and he heard a shot fired on the north side of the road, and he came hack and hitched his mare, climbed over the water-gate and found his dog lying there dead; after he found his dog was killed, he came to town and told his father. “I told him that somebody had killed my dog, he asked me if the hogs were in the field, and I told him that they were; that I was trying to drive them out and somebody shot my dog; the deceased then said, ‘We will go down and get the d--sons of b-out, or get it rather,’ so we started and went down by our house and father went into the house while I waited for him out in the road.” He, Glennie, had no weapons; his father went into the house, and when he came back he had his pistol; we went on down to the field, and his father asked him how many hogs was in, and he told him; his father then said, “We will go down and get the d--son of b--out;” his father went on one side of the field and he went on the other. His father fired a shot at a hog and then went on down and fired another shot; he fired a third shot and killed a hog, and they picked it up and threw it over the water-gate; he then told his father that one hog went up southwest and they went up that way, but did not find anything but two pigs; the pigs turned into the brush and his father took up some rocks, put his pistol in his pocket and said, “We can kill these little ones with rocks,” and he and his father turned and went into the brush about twenty feet apart, his father went in first; his father went into the brush after the hogs; he did not know that Mr. Walker, the defendant, was on the place; when he got down in the brush about thirty-five or forty feet, he heard the defendant speak to his father; he said, ‘‘ Guy, what are you doing here?” and his father said, “I am killing these G- d--hogs.” Defendant said, “Don’t you know you are doing wrong?” and his father said, “No, I am protecting my crop, I will kill. every G--d--one of them;” then defendant said, “Are yon going to pay me for the hogs you have killed?” and his father said “Not a Gr--d-cent,” and then he said, “Don’t,” and the gun fired; only one shot was fired, he recognized the defendant’s voice as the man who was talking to his father in the thicket; when he heard the gun fired, he turned and went to the point were his father started into the brush, and saw the defendant rising up from over his father; he stoopted down and saw him; his father was lying on his face with his head towards the south. Walker, the defendant, then called for Bill Holt; when he called Holt, he, Glennie, answered him; defendant says, “Who is it?” and I said, “It is Glennie;” defendant said, “Glennie, I have shot your papa, come and shoot me. ’ ’ He then went in where his father was killed; he was not dead at that time; he called to him but he did not answer him at all; he picked up the pistol, it was lying right at the back of his father’s head; he picked it up and the defendant said, “Don’t; lay it down, it is cocked.” He looked at the pistol and it was cocked, and he laid it down, and he turned his father over on his back; he was dying then; in turning him over he turned him over on the pistol. The defendant said to Glennie at that time, “He tried to shoot me, he hurt me on the mouth with his pistol;” he called attention to his lip being swollen and he then said, “We had better call for the boys.” They then went out and called, and Hays answered. Hays came down, and the defendant told Hays to go to town and take the news. This constituted the State’s case in chief.

The defendant testified in his own behalf that he was forty-five years old; that he had been afflicted for the ]ast seventeen years with rheumatism, and for the last five years had been almost helpless; his shoulders were drawn and his hands were drawn out of shape; for two or three days before the killing, he had been in Gainesville sitting np with a sick man, Mr. Cope. The evening before the difficulty, he went home; on the morning of the difficulty, he went down into the deceased’s field to see to his hogs, he had heard they were in Mr. Harrison’s field. He went down into the field and looked for one of them, said to have been killed the day before, but did not find it; then he went around the edge of the corn field and found his hogs there at the edge of the branch like, and started up the branch to get them out at the water-gate, but when he got there the water-gate had been fixed and he could not get them out; he saw some blood on the planks there and looked over the fence and saw one of his hogs dead; he then thought he would drive his hogs to the upper end of the field where there was a rail fence and lay the fence down and get them out, and when he got nearly up there some of them turned back to the road that runs east and west; he kept them on the north side of the road and got ahead of them where the two roads come together, and some of them started up towards this field south of the hollow and he got ahead of them there and drove them back up by the side of the thicket and they turned in there and he followed them into the thicket, and when he got in there a little ways he sat down to tie his shoe; before he got his shoe tied he heard some one hollow, “Whoopee, sic;” that was the first he knew that anybody was in the field; he was still sitting there tying his shoe, and in about a half a minute he saw Mr. Harrison come up right north of him; he stopped and looked at the defendant. Defendant asked him what he was doing there. He said, “• I am killing hogs;” there was something said about driving them and defendant said to him, ‘£ Don’t you know it is wrong to kill hogs that way?” and Harrison said, “No, G--d--it, I don’t.” Defendant told him he did not know his hogs were getting in his field until yesterday, when Harrison said, “You are a G-d—— liar, you turned them in.” Whereupon, defendant said, “Guy, I do not want you to kill any more of my hogs.” The deceased then walked right towards defendant and said, “I will kill every G--- d--one of them, and you too,” and drew his pistol; that was the first that the defendant knew that the deceased had a pistol; when he said that, he was six or seven steps distant, and the defendant grabbed for his gun with his left hand; his gun was on the right side of him and he started to get up just as he grabbed for his gun and got it in his left hand; deceased came running up to him and punched him in the face and struck him on the right side of the upper lip; the defendant tried to get up, but did not have the strength in his legs, and about the time he punched him in the face he heard the shot of the gun; the deceased was right over him. When the deceased punched the defendant in the mouth and knocked him back, defendant grabbed his gun as quick as he could and pushed on the hammer and had the gun between him and the deceased; he did not know whether it was his gun or the deceased’s gun that fired; the deceased sprang on top of him, and when he fired the deceased fell on him, and it was some moments before he got out from under him. When deceased fell he dropped his gun, and as quick as he could get from under him he hollooed for Bill Holt. Asked if any one said, “Don’t,” during that difficulty, he answered that he did it himself. He was asked if he could get up off of the ground without getting up on his knees first, and he answered that he could not. He demonstrated to the jury that he cocked his gun with the side of his hand, because he did not have strength enough in his thumb to pull the hammer back. The first person he saw after the shooting was G-lennie Harrison, and he told him to come in there. He testified that he never had Mr. Harrison’s pistol in his hands at any time. He did not see it after he got up until G-lennie came in and turned him over. He called for Bill Holt because he thought he was there in the field. On cross-examination he testified he could not stand up and shoot unless he had a rest or his knees against a tree or something that way. “Q. You took this gun that morning to shoot crows? A. I was going to see to my hogs and then going to kill crows. Q. The gun is what yon call a Stevens rifie? Ans. It is a single gun.” He thought he took six or seven cartridges, he generally carried them in his right pocket. After he fired his gun he loaded it again; he could not say why he did load it. He had first learned the day before that his hogs had been down in Harrison’s field, and that they were dogging his hogs, or rather that Glennie Harrison was dogging his hogs; he did not like it, his feelings were hurt; he went down to get the hogs out of Harrison’s field that morning. He testified that he did not kill Harrison’s dog; he heard two shots that morning when he was down looking for his hogs; he testified that he never thought of Harrison being down there, he thought the Scott boys were doing the shooting. When he drove the hogs down to the water-gate he did not know that it had been fixed, and then he attempted to drive them up to the rail fence and let it down, and the pigs turned into a thicket; he followed them in there. Witness then detailed circumstances of the killing as already stated.' He testified that he shot the deceased to protect his own life and because he thought the deceased intended to kill him.

Mr. Conkin, the sheriff of the county, testified in behalf of the defendant that when he reached the place where the homicide occurred he found the defendant Walker, Glennie Harrison, George and Asa Scott there; the body of Mr. Harrison was lying on its back; the pistol was lying there beside him; he requested Hays to pick up the pistol, but the latter declined to do so, and the witness picked it up himself; he found that the hammer was hung, it would not work, the pistol was cocked; he testified that he noticed where the bullet had gone through the brush or limbs, that the bullet ranged up and cut three twigs; he testified that if a man had been standing up and shot a pistol from the point where he found the body, it could have never made the abrasions on the limb; that the party who shot the bullet that cut the twigs must have been sitting down. He testified that he had known Guy Harrison, the deceased, for, many years, and that they were friends; he knew his reputation as a quarrelsome, turbulent, overbearing man; it was bad.

William Luna testified that he was probate judge of Ozark county, and had been sheriff; he was well acquainted with Mr. Harrison in his lifetime. He testified that he undressed the body of Mr. Harrison after his death; he found powder stains on the shirt when he took it off of him; he also testified that the range of the bullet that cut the twigs was upward. He testified that the reputation of Mr. Harrison as a quarrelsome, turbulent man was bad.

Mr. J. S. Miller also testified that he was the constable of the township and had known Mr. Harrison all his life and that his reputation as a quarrelsome, turbulent, overbearing man was bad.

Tesley Luna testified that he was acquainted with Mr. Harrison; that sometime in the preceding summer he had a conversation with' Mr. Harrison, the deceased, about Walker, the defendant; that deceased said that he ought to or had a notion to get him a shot gun and go down there, it was something about hogs in the field, some of Walker’s hogs, and that he had a good notion to get him a shot gun and go down and kill him, that is about what he stated. This is the substance of all the testimony in the case.

1. We have given a full statement of all the material evidence for the reason that the propriety of the instructions can only be ascertained by a knowledge of the testimony.

That the evidence demanded an instruction on self-defense is apparent from the most cursory reading. Indeed, the most serious question on this appeal is whether the circuit court should not have directed an acquittal, hut there can he no two opinions that the defendant was entitled to a clear instruction on the law of self-defense without the qualifications injected into the instruction, which we have numbered four for the purpose of this opinion. There was not a scintilla of evidence tending to prove that the defendant sought, brought on or provoked the difficulty in which he shot and killed the deceased; neither was he doing any. unlawful act when he went upon his neighbor’s lands merely to drive his hogs therefrom and prevent the destruction of the crops of his neighbor and the hogs. The only circumstance that by any sort of deduction could be tortured into a seeking of the difficulty was the fact that defendant at the time the difficulty arose was in the plum thicket with a gun, on the farm of deceased; but when it is considered that he had gone there in following his hogs to get them out of the field and the fact that the place was entirely removed from any usual traveled route of the deceased, the utter improbability of his meeting the deceased at this place is at once apparent. He had no cause to apprehend that the deceased, a practicing lawyer, would at that time of the day be in this field pursuing the hogs, or that he would come into the thicket, as there was no path through it. The law is that one may not deliberately seek and provoke a difficulty with another with a design to kill him and then invoke the right of self-defense, but it is also the law that where there is no evidence of such seeldng and provoking a difficulty in order to get an opportunity to wreak one’s vengeance on another, it is error for the trial court to frit away the right of self-defense by inviting the jury to enter the field of conjecture and excuse the'aggressor on such a ground when there is, as in this case, no basis for such a qualification of the law of self-defense. Tins instruction likewise argumentatively destroyed all the effect of the threats made by deceased against defendant and the proof of his violent, quarrelsome and overhearing disposition. It would have been preferable not to have mentioned either of these, because, as stated, they were practically excused by the court. But the crowning error in this instruction is found in that clause which told the jury “that even though they believe the deceased, Harrison, did advance on the defendant with a drawn pistol and with the intent to take the life of defendant or do him great bodily harm, yet if they believe from the evidence that defendant was on the premises of deceased with intent to bring on or provoke a difficulty with deceased for the purpose of taking the life of deceased or with the fixed felonious intent of voluntarily entering* into a difficulty with deceased to take his life, there was no self-defense in the case, even though they believed from the evidence that the deceased did advance on the defendant and drew his revolver and attempted to take the life of the defendant.” The evidence that defendant was on the premises of the deceased, in the circumstances of this case, had no criminal significance. Deceased at no time requested defendant to' leave his premises nor was his presence there in any sense a cause of the assault made upon him. Certainly, it afforded no ground for deceased drawing his revolver and attempting the life of the defendant without any provocation. We can conceive of no more hurtful in-, struction than this one was and one with less basis. There was nothing in the remarks of defendant to deceased, accepting his son’s version of what occurred, that justified the deadly assault made by deceased upon defendant. On this point the testimony of defendant was corroborated in all material points by that of the son of deceased, and by the physical facts which appeared to the other disinterested witnesses when they appeared on the scene of the homicide. • The proximity of the combatants, the loaded pistol, the wounds upon the mouth and face of the defendant, the range of the bullet, and the crippled condition of defendant from rheumatism, all indicate that the deceased was the aggressor, and but for the condition of the revolver, the result probably would have been that the defendant would have been the victim instead of deceased. For the errors in this instruction the judgment must be reversed and 'the cause remanded. As the case must go back for a new trial it is proper to add that, upon the facts disclosed, the court should have instructed on manslaughter in the fourth degree. We are impressed from a careful reading of the whole record that the defendant did not have a fair and impartial trial and that the instructions of the court produced a verdict which the law and the testimony did not justify. The judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed.

Burgess, P. J., and Fox, J., concur;


author: BURGESS, P. J.

text:
    THE STATE v. COLLINS, Appellant.
    Division Two,
    May 22, 1906.
    BILL OF EXCEPTIONS: Not Signed. Where the purported bill of exceptions is not signed by the judge who tried the case, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Howell Circuit Court.—Hon. Wm. N. Evans, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   BURGESS, P. J.

On the third day of June, 1905, the prosecuting attorney of Howell county filed in the office of the clerk of the circuit court of said county an information, duly verified by him, charging the defendant with having, at said county, on the 28th day of June, 1905, feloniously assaulted and shot at,, with intent to kill, one P. W. Smith. Thereafter, on the 11th day of October, 1905, defendant was put upon trial, found guilty by a jury, and his punishment assessed at two years imprisonment in the penitentiary. Defendant appeals.

What purports to be the bill of exceptions filed in this cause is not signed by the judge of the court before whom it was tried; hence, no matter of exception can be considered on this appeal.

The information is in due form, and the record otherwise free from error.

The judgment is affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. HARDY, Appellant.
    Division Two,
    May 22, 1906.
    BILL OF EXCEPTIONS: Not Filed in Time. Where the hill of exceptions is not filed within the time allowed, there is nothing for the appellate court to review hut the record proper, and if that is free from error, the judgment will he affirmed.
    Appeal from Jasper Circuit Court.—Hon. Howard Gray, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T Gentry, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by tbe defendant from a judgment of the circuit court of Jasper county convicting him of assault upon one Minnie L. Stotts with intent to ravish. Tbe prosecuting attorney, on tbe 14th day of June, 1905, filed an information charging tbe defendant with tbe commission of tbe offense as above indicated. At tbe June term, 1905, of said circuit court, tbe defendant was tried and convicted; bis punishment was assessed at five years in tbe penitentiary. After filing unsuccessful motions for a new trial and in arrest of judgment, defendant appealed. Although given time in which to file bis bill of exceptions, defendant failed to do so; so there is nothing before this court except tbe record proper.

OPINION.

We have carefully examined tbe record proper, which is all that is before us for consideration, and find that tbe information charges tbe offense in such form as has frequently met tbe approval of this court. Tbe record discloses tbe arraignment of tbe defendant in accordance with tbe requirements of tbe statute, and tbe subsequent proceedings respecting tbe impaneling of tbe jury, tbe return of their verdict, and tbe sentence and judgment in accordance with tbe verdict, appear to be in every particular regular and in strict accord with tbe law and an orderly trial; hence it follows that tbe judgment of tbe trial court should be affirmed, and it is so ordered.

All concur.