Defendant insists that the court erred in refusing to give the first, second, third, and fourth instructions asked by him. These instructions are all predicated on the theory that the deceased was violating an ordinance of the town when defendant attempted to arrest him, when in fact there was no ordinance prohibiting the sale of fish on the streets of said town, and were therefore properly refused. this extreme measure is necessary." 2 | he used no more force than was reasonably Bishop, Crim. Law, § 647. In the case of necessary to then and there accomplish the State v. Dierberger, 96 Mo. 666, 9 Am. St. arrest, then he should be acquitted. But Rep. 380, 10 S. W. 168, it was said: "These although defendant may have believed he authors, ancient and modern, lay down the had authority to arrest the deceased, yet law in substantially the same terms. They if, in so doing, he used more force than show that the protection which an officer is was reasonably necessary to accomplish the entitled to receive is a different thing from arrest, and shot and killed the deceased in self-defense. The officer, when making an malice and with premeditation because he arrest, may, of course, defend himself, as did not remove his hand from his pocket may any other person who is assaulted, but when commanded to do so by defendant, dethe law does not stop here. The officer fendant was guilty of murder in the second must of necessity be the aggressor. His degree, unless acting in self-defense. But mission is not accomplished when he wards if defendant used more force than was off the assault. He must press forward and reasonably necessary in making the arrest, accomplish his object. He is not bound to he was guilty of manslaughter in the fourth put off the arrest until a more favorable degree. State v. Rose, 142 Mo. 418, 44 S. time. Because of these duties devolved up- W. 329. But no instruction was asked on on him, the law throws around him a special manslaughter in the fourth degree, nor protection. As we said in the recent case was the court's attention called to its failof State v. Fuller, 96 Mo. 165, 9 S. W. 583, ure to instruct upon the law of the case; his duty is to overcome all resistance and hence there was no error in its failure to bring the party to be arrested under phys- do so. State v. Cantlin, 118 Mo. 100, 23 S. ical restraint, and the means he may use W. 1091; State v. Waters, 156 Mo. 132, 56 must be coextensive with the duty." State S. W. 734; State v. Furgerson, 162 Mo. v. Rose, 142 Mo. 418, 44 S. W. 329. But 668, 63 S. W. 101. in the case at bar the deceased was not guilty of either a felony or misdemeanor, nor even of the violation of the town or dinances; and the court, in effect, so declared. But defendant had the right to arrest for the violation of a town ordinance committed in his presence, had such been the case. Deceased had been selling, or offering for sale, fish on the sidewalks, to defendant's personal knowledge, and in his presence, whereupon he reported the fact to the chairman of the town board, who advised him that it would be necessary to go and kindly ask Mr. Cox to take his fish off the sidewalk, and, if he refused to do so, it would be his duty to remove the fish from the sidewalk himself, and, in case he became loud or noisy or swearing, he should arrest him for disturbing the peace of the town; and, in attempting to comply with the direction of the chairman of the board, the homicide occurred, as before stated. It thus seems that defendant had good reason to believe that he had the authority to arrest deceased, and if, when making such arrest, he was acting in good faith, and deceased resisted, he had the right to apply force to accomplish it; and if it became necessary to kill him to save his own life or person from great bodily harm, he had a right to do so. State v. McNally, 87 Mo. 644. As was, in effect, said in State v. Dierberger, 96 Mo. 666, 9 Am. St. Rep. 380. 10 S. W. 168, the defendant had a right, ir. his effort to make the arrest, to use all force that was necessary to overcome all resistance, even to the taking of life; and, if Another contention is that the information is bad, in that it only charges manslaughter in the fourth degree, if in fact it charged any offense at all. The objection to the information is that it does not conclude, "and so the said L. N. Dempsey, prosecuting attorney within and for Chariton county, Missouri, as aforesaid, upon his oath, says that he, the said Jasper Coleman, him, the said Rufus Cox, in the manner and form and by the means aforesaid," etc., but omits the words "upon his oath says," etc. Indictments for murder concluding substantially the same way have frequently been held bad by this court. Siale V. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Stacy, 103 Mo. 11, 15 S. W. 147; State v. Furgerson, 152 Mo. 92, 53 S. W. 427. At common law all indictments for murder were prosecuted by indictment, and concluded as follows: "And so the jurors aforesaid upon their oath aforesaid do say that the said A. B., him, and the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his [own] malice aforethought, did kill and murder." 1 Wharton, Prec. of Indictments & Pleas, 114; 5 of, was at most an irregularity which could have been amended at any time before or during trial, and cannot be raised for the first time in this court. For these intimations, the judgment is reversed and the cause remanded. Brace, P. J., and Fox and Lamm, JJ., concur. Valliant, J., concurs, except as to the state's fourth instruction, which he thinks is erroneous. Gantt, J., concurs in all that is said, except as to the form of the information, from which he dissents. Marshall, J., absent. Gantt, J., dissenting: Chitty, Crim. Law, 738; Kelley, Crim. Law | if it were not, the failure of the clerk to & Pr. 309. In State v. Meyers, 99 Mo. 107, indorse upon it "Filed," and the date there12 S. W. 516, Sherwood, J., in speaking for the court, said: "All the authorities show the proper conclusion of an indictment for murder marks the feature of that offense which distinguishes it from manslaughter. Without such conclusion, the previous words charge but the latter offense. 2 Bishop, Crim. Proc. $$ 536, 548, 550; 3 Chitty, Crim. Law, 243, 737. Hence the importance of the conclusion in the count for murder. That conclusion, in order to be valid, charges murder as the result of the previously made allegations." Without such conclusion, the offense charged would be but manslaughter. In 2 Hawkins, Pleas of the Crown, pp. 369, 370, it is said: "Having already, in the chapter of indictments, incidentally shown the principal points relating to this matter, I shall only take notice in this place that, seeing an information differs from an indictment in little more than this: That the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it, whatsoever certainty is requisite in an indictment, the same, at least, is necessary also in an information; and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital." In State v. Kelm, 79 Mo. 515, it is said that an information differs principally from an indictment in this: That an indictment is an accusation found by the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it; citing Bacon, Abr. pp. 167-170, 174; 2 Hawk. P. C. 26, § 4. Therefore, being of the same dignity, and for the same purpose, they must, in cases of murder, be governed in their material allegations by the same law. Therefore the information is invalid, and, being so, the question may be properly raised for the first time in this court; and, while it cannot be amended in this court, it may be amended as to matter of form or substance at any time by leave of court before trial. Rev. Stat. 1899, § 2481. Our conclusion is that an information for murder should conclude, "And so the prose cuting attorney aforesaid upon his oath does say that the said him, the said in manner and form, felonious ly, deliberately, premeditatedly, and of his malice aforethought, did kill and murder." Depositing of the affidavit of Robert Cox with the clerk of the circuit court of the county was sufficient filing, within the meaning of 2477, Rev. Stat. 1899. But, even As said by my learned brother, I concur in all the conclusions reached by him in the foregoing opinion, save and except that the information is invalid for the sole reason that the prosecuting attorney, in his conclusion, does not say, "And so L. N. Dempsey, prosecuting attorney as aforesaid, upon his oath, or official oath doth say," etc. It will be observed that all the words of a proper conclusion of an indictment for murder are employed by the prosecuting attorney, save and except the words "upon his oath," or "official oath." There is no difference of opinion amongst us as to the necessity of concluding an indictment for murder with the words, "and so the grand jurors, upon their oath aforesaid, do say that he [the said defendant, naming him] wilfully, deliberately, premeditatedly, and of his malice aforethought, him [the said deceased, naming him], in the manner and form and by the means aforesaid, did kill and murder, against the peace and dignity of the state." Such was the essential requirement of the common law, and when the people of Missouri, in their organic law, ordained "that no person shall, for felony, be proceeded against criminally otherwise than by indictment," they meant an indictment as understood at common law. Long prior to the adoption of our Constitution the word “indictment” had been construed, and was well understood by our people; and it had uniformly been held that, in an indictment for murder, it was essential that it should conclude, "and so the grand jurors, upon their oath, do say," etc. The settled construction from Coke down to State v. Meyers, 99 Mo. 107, 12 S. W. 516, I accept, and have followed during my incumbency here. The question here is, Are those words "upon his oath," or "upon his official oath," as necessary to a valid information for murder since the adoption of the amendment permitting the prosecution of murder by in formation as they are in an indictment? The conclusion of the majority of my brethren is that they are, and that the information in this case is invalid for that reason. With the utmost respect for the judgment of my colleagues on this point, I am constrained by my investigation to take the contrary view, and dissent. At the outset, I agree that both at common law and under our Constitution an information should and must be as certain and definite as to its statement of the essential facts constituting an offense as an indictment, because the defendant is entitled to know the nature and cause of the accusation against him, in order to enable him to prepare his defense. 2 Hawk. P. C. p. 369; Wharton, Crim. Pl. 9th ed. § 87. It will hardly be controverted that this information measures up strictly to every requisite of a good common-law indictment as to the statement of every fact necessary to advise the defendant of the nature and cause of the accusation against him. The only possible objection urged against it, or that can be lodged against it, is that the prosecuting attorney, who preferred the information in his official character, did not repeat his conclusion that "upon his oath" or "official oath," he made the charge of murder. As I understand the reasoning of my brethren, it is held that, because an indictment was required to conclude that, "upon the oath of the grand jurors," the charge of murder was made, it must follow that, where an information is resorted to by the prosecuting attorney, he must conclude by saying "upon his oath," or "official oath," that he makes the charge. I have already adverted to the fact that we have held that an indictment for murder must conclude with a charge that the defendant did kill and murder, upon the oath of the grand jurors, because we have adopted the commonlaw indictment. The same reasoning necessarily applies to an information, for, when we incorporated an information, in the Constitution, as a mode of prosecuting felonies, we likewise imported it from the common law, and, by the same token, it must be understood in its common-law sense. State v. Kyle, 166 Mo. 303, 56 L. R. A. 115, 65 S. W. 763; Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515. Bishop in his new Criminal Procedure, Vol. 1, 4th ed. § 144, says: "The criminal information should be deemed to be such, and such only, as in England is presented by the attorney or solicitor general. This part of the English common law has plainly become ours. And as, with us, the powers which in England are exercised by the attorney general and the solicitor general are largely distributed among our district attorneys, whose office does not exist in England, they would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court." This statement of Bishop met the express sanction of this court in State v. Kyle, 166 Mo. 306, 56 L. R. A. 115, 65 S. W. 763. Having settled that the information of our Constitution is the common-law information, in the absence of a statute prescribing a form or additional safeguards, let us inquire what was the form of the commonlaw information. A form for an information for murder at common law is not to be found, because murder was prosecuted by indictment of a grand jury; but obviously it was the purpose of the people, in adopting information as a method of procedure, to adopt the common-law information, as far as applicable to the prosecution of felonies. Nowhere in the criminal informations of the common law was the attorney general or solicitor general or the Crown officer of the King required to allege that "upon his oath of office," or "upon his official oath," he gave the court to understand and be informed that an offense had been committed. Mr. Bishop, in his first volume of New Criminal Procedure, § 712, says "that only in formal parts, at the beginning and close, does this information differ from an indictment." But it does differ in these respects. The reason, I submit, is this: When the attorney general in England filed his information, he did so virtute officii, and it was an official act; and the courts took ex officio notice of his office, and of his right to file and prosecute the offense without leave of the court. As the law never requires a useless thing, why should he have been required to state that his official act was under his official oath? The answer is, the courts of England never required him to allege that he preferred an information upon his oath of office. Whenever he filed an information, it was his official act, and was done under the sanction of his oath of office; and so I say the same official character is stamped upon the information filed by the prosecuting attorneys. The courts are bound to recognize their official acts, without alleging the nontraversable statement that they have filed their informations under their oaths of office. Our statute (Rev. Stat. 1899, § 2535) provides that no indictment or information shall be deemed invalid for want of the averment of any matter not necessary to be proved. Every circuit court is bound to take judicial notice of the incumbent of the office of prosecuting attorney in the counties in which it is held, and it is entirely unnecessary to prove the prosecuting attorney's title to the office, or that what he asserts as such officer is under his oath of office. State v. Sickle, Brayton (Vt.) 132; Territory v. Cutinola, 4 N. M. 305, 14 Pac. 809; 3 Burn, Justice of the Peace, 911; 1 Chitty, Crim. Law, 845, 847. In Kelm's Case, 79 Mo. 515, it was pointed out that "the text-books are uniform in defining an information to be an accusation or complaint exhibited against a person for some criminal offense, 'either immediately against the King, or against a private person, which, from its enormity or dangerous tendency, the public good requires should be restrained and punished, and differs principally from an indictment in this: That an indictment is an accusation found by the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it.' 5 Bacon, Abr. pp. 167, 170, 172; 2 Hawk. P. C. chap. 26, § 4." The usual and accepted formula was that the attorney general, or the solicitor general if the office of attorney general was vacant, and in certain cases the Crown officer in the King's bench as a matter of right, and without leave of court, filed the information, and, in behalf of the King, "gave the court to understand and be informed that the defendant, at," etc., committed the particular offense. It was required that he state with certainty all the material parts of the alleged crime, and not by way of argument or recital, but it was not necessary for him to state that he made such allegations under his official oath, either in the commencement or conclusion of his information. Whereas, as the grand jury could only make their presentment under their oath, it was essential that their indictment should show that they charged the defendant by virtue of their oath. As said by Judge Sherwood in State v. Meyers, 99 Mo., loc. cit. 116, 12 S. W. 518: "Of course, if a crime is to be charged, it must be done by the grand jurors upon their oaths. It does not appear that the grand, jurors have charged murder in the conclusion before us." In that case the conclusion altogether omitted any charge by the grand jurors under their oath, but merely stated, "and so said Charles Meyers and John Bogard in manner and form," etc. Whereas in this case the conclusion is, "And so the said L. N. Dempsey, prosecuting attorney within and for Chariton county, Missouri, as aforesaid, says that he, the said Jasper Coleman, him, the said Rufus Cox, in the manner and form and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, at the county of Chariton, in the state of Missouri, on the 8th day of August, 1903, did kill and murder, against the peace and dignity of the state." The only omission, therefore, that can be suggested, is the failure to state that "upon his oath aforesaid" he makes said information and charge. It was pointed out in Rex v. Wilkes, 4 Burr. 2527, by Lord Mansfield, that there is a difference between informations and indictments. Indictments are found upon the oaths of a grand jury, and can only be amended by themselves. Whereas, "informations are as declarations in the King's suit." I have, after the most careful research, been unable to find any case in which at common law it was ruled that it was essential to the validity of an information that the attorney general or solicitor general or the Crown officer of the King's bench should state that he made his charge "upon his oath," or "official oath;" and, as we have no statute prescribing such a form, I think it should be ruled that such an allegation is not essential, and that this objection to this information is not tenable. That the prosecuting attorneys of the sereral counties in this state may prosecute by information, as a right adhering to their office, and without leave of the court, is now the accepted law of this state. State v. Kelm, 79 Mo. 516, 517; State v. Ransberger, 106 Mo. 145, 17 S. W. 290; State v. Kyle, 166 Mo. 303, 56 L. R. A. 115, 65 S. W. 763. Prosecuting attorneys are officers whose duties and terms of office are prescribed by law, and the several courts take judicial knowledge of the incumbent of this office in the several counties. When, therefore, a prosecuting attorney files an information in a criminal cause, he is presumed to do so by virtue of his office, and it is not necessary for him to allege his right to do so. As he is authorized by his official position to file an information and prosecute the alleged offender, the presumption is that when, as in this case, he informs the court in his official character, as prosecuting attorney, it should be held that what he alleges is under and by virtue of his oath of office; and no good reason can be seen why he should allege that he makes the information upon his oath, or official oath, as the very filing in his official character necessarily implies that he does so in obedience to the obligations of his official oath, and in the performance of the duties of his office. As already said, the information in this case having been made by the prosecuting attorney in his official character, it would add nothing to the security of the defendant for that officer to state that he charged the defendant with the offense upon his oath as such officer. All that he alleges, all that he charges, must be conclusively presumed to be upon that oath, which was one of the prerequisites to his qualifications for the office itself. To guard against groundless and vindictive prosecutions, and to secure good faith in the institution of criminal proceedings. the general assembly has required the information to be verified by the prosecuting attorney or some competent witness; but I submit this is the only requirement of an oath by the prosecuting attorney, and that nowhere is he required to state in the body of his information that it is under oath, or official oath. ligent, in not observing the approaching car, does not relieve the appellant of liability where the motorman saw respondent in a perilous situation in time to have avoided injuring her. Bunyan v. Citizens' R. Co. 127 Mo. 12, 29 S. W. 842; Klockenbrink v. St. Louis & M. River R. Co. 172 Mo. 678, 72 S. W. 900. Respondent's perilous situation is not confined to the time her horse came upon appellant's track. It arose the moment the motorman saw the respondent approaching the track in a manner indicating that she was intending to cross in front of a near approaching car, which she seemingly did not see. Bunyan v. Citizens' R. Co. 127 Mo. 12, 29 S. W. 842; Ennis v. Union Depot R. Co. 155 Mo. 20, 55 S. W. 878; Klockenbrink v. St. Louis & M. River R. Co. 172 Mo. 678, 72 S. W. 900; Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 621, 80 Am. St. Rep. 650, 58 S. W. 32. This accident was not the result of mu tual or concurring negligent acts of the respondent and the motorman. The causal connection between respondent's negligence and her resulting injuries ceased the moment the motorman observed her in a position of peril and in time to have avoided the injury to her. Watson v. Mound City Street R. Co. 133 Mo. 251, 34 S. W. 573; Bunyan v. Citizens' On motion for rehearing. 3. A motorman in charge of a street | R. Co. 127 Mo. 12, 29 S. W. 842. 4. To hold a street car company liable PPEAL by defendant from a judgment of the Circuit Court for Jackson County in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed. In declaring the law to be that the motorman must not only have been guilty of negligence, but of gross negligence, or reckless or wanton conduct, after discovering plaintiff's peril, the decision is contrary to- Sullivan v. Missouri P. R. Co. 117 Mo. 214, 23 S. W. 149; Kreis v. Missouri P. R. Co. 131 Mo. 533, 30 S. W. 310, 33 S. W. 64, 1150; Morgan v. Wabash R. Co. 159 Mo. 262, 60 S. W. 195; Klockenbrink v. St. Louis & M. River R. Co. 172 Mo. 678, 72 S. W. 900; Moore v. Lindell R. Co. 176 Mo. 529, 75 S. W. 672; Dlauhi v. St. Louis, I. M. & S. R. Co. 139 Mo. 291, 40 S. W. 890: Hanlon v. Missouri P. R. Co. 104 Mo. 390, 16 S. W. 233; Reardon v. Missouri P. R. Co. 114 Mo. 385, 21 S. W. 731. Even if this court should insist that it The facts are stated in the opinion. Mr. John H. Lucas for appellant. Messrs. Leon Block and William C. must be shown that the motorman was Hock, for respondent: grossly negligent, would not any neglect Respondent's negligence, if she was neg- whatever in operating and guiding an elec NOTE. For other cases in this series as to imputing negligence of driver to person injured while driving with him, see Nisbet v. Garner, 1 L. R. A. 152, and note; Becke v. Missouri P. R. Co. 9 L. R. A. 157, and note; Union P. R. Co. v. Lapsley, 16 L. R. A. 800; Mullen v. Owosso, 23 L. R. A. 693; Illinois C. R. Co. v. McLeod, 52 L. R. A. 954; Koplitz v. St. Paul, 58 L. R. A. 74; Neal v. Rendall, 63 L. R. A. 668; Duval v. Atlantic Coast Line R. Co. 65 L. R. A. 722. |