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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 be 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. 533, 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 Defendant insists that the court erred in guilty of either a felony or misdemeanor, refusing to give the first, second, third, and nor even of the violation of the town or fourth instructions asked by him. These dinances; and the court, in effect, so de instructions are all predicated on the theory clared. But defendant had the right to that the deceased was violating an ordiarrest for the violation of a town nance of the town when defendant attemptdinance committed in his presence, had ed to arrest him, when in fact there was no such been the case. Deceased had been ordinance prohibiting the sale of fish on selling, or offering for sale, fish on the side the streets of said town, and were therefore walks, to defendant's personal knowledge, properly refused. and in his presence, whereupon he reported Another contention is that the informathe fact to the chairman of the town board, tion is bad, in that it only charges manwho advised him that it would be necessary slaughter in the fourth degree, if in fact to go and kindly ask Mr. Cox to take his fish 'it charged any offense at all. The objection off the sidewalk, and, if he refused to do to the information is that it does not conso, it would be his duty to remove the fish clude, “and so the said L. N. Dempsey, from the sidewalk himself, and, in case he prosecuting attorney within and for Charibecame loud or noisy or swearing, he should ton county, Missouri, as aforesaid, upon his arrest him for disturbing the peace of the oath, says that he, the said Jasper Coleman, town; and, in attempting to comply with him, the said Rufus Cox, in the manner and the direction of the chairman of the board, form and by the means aforesaid,” etc., but the homicide occurred, as before stated. It omits the words “upon his oath says,” etc. thus seems that defendant had good reason Indictments for murder concluding subto believe that he had the authority to ar stantially the same way have frequently rest deceased, and if, when making such ar- been held bad by this court. Siale v. rest, he was acting in good faith, and de- Meyers, 99 Mo. 107, 12 S. W. 516; State v. ceased resisted, he had the right to apply Stacy, 103 Mo. 11, 15 S. W. 147; State v. force to accomplish it; and if it became Furgerson, 152 Mo. 92, 53 S. W. 427. At necessary to kill him to save his own life common law all indictments for murder or person from great bodily harm, he had a were prosecuted by indictment, and conright to do so. State v. McNally, 87 Mo.cluded as follows: "And so the jurors 644. As was, in effect, said in State v. aforesaid upon their oath aforesaid do say Dierberger, 96 Mo. 666, 9 Am. St. Rep. 380. that the said A. B., him, and the said E. F., 10 S. W. 168, the defendant had a right, ir. in manner and form aforesaid, feloniously, his effort to make the arrest, to use all wilfully, and of his [own] malice aforeforce that was necessary to overcome all re- thought, did kill and murder.” 1 Wharsistance, even to the taking of life; and, if | ton, Prec. of Indictments & Pleas, 114; 5

measure

or

this extreme

concur.

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 of, was at most an irregularity which could the court, said: “All the authorities show have been amended at any time before or the proper conclusion of an indictment for during trial, and cannot be raised for the murder marks the feature of that offense first time in this court. which distinguishes it from manslaughter. these intimations, the judgment is Without such conclusion, the previous reversed and the cause remanded. words charge but the latter offense. 2 Bishop, Crim. Proc. $$ 536, 548, 550; 3 Brace, P. J., and Fox and Lamm, JJ., Chitty, Crim. Law, 243, 737. Hence the

Valliant, J., concurs, except as importance of the conclusion in the count to the state's fourth instruction, which he for murder. That conclusion, in order to thinks is erroneous. Gantt, J., concurs in be valid, charges murder as the result of all that is said, except as to the form of the the previously made allegations.” Without information, from which he dissents. Marsuch conclusion, the offense charged would shall, J., absent. be but manslaughter. In 2 Hawkins, Pleas of the Crown, pp. 369, 370, it is said: Gantt, J., dissenting: "Having already, in the chapter of indict As said by my learned brother, I concur ments, incidentally shown the principal in all the conclusions reached by him in the points relating to this matter, I shall only foregoing opinion, save and except that the take notice in this place that, seeing an information is invalid for the sole reason information differs from an indictment in that the prosecuting attorney, in his conlittle more than this: That the one is clusion, does not say, “And so L. N. Dempfound by the oath of twelve men, and the sey, prosecuting attorney as aforesaid, upother is not so found, but is only the alle on his oath, or official oath doth say,” etc. gation of the officer who exhibits it, what. It will be observed that all the words of soever certainty is requisite in an indict- a proper conclusion of an indictment for ment, the same, at least, is necessary also murder are employed by the prosecuting in an information; and consequently, as all attorney, save and except the words "upon the material parts of the crime must be his oath,” or “official oath.” There is precisely found in the one, so must they be no difference of opinion amongst us as to precisely alleged in the other, and not by the necessity of concluding an indictment way of argument or recital.” In State v. for murder with the words, "and so the Kelm, 79 Mo. 515, it is said that an infor- grand jurors, upon their oath aforesaid, do mation differs principally from an indict- say that he [the said defendant, naming ment in this: That an indictment is an him] wilfully, deliberately, premeditatedly, accusation found by the oath of twelve and of his malice aforethought, him [the men, whereas an information is only the said deceased, naming him], in the manner allegation of the officer who exhibits it; and form and by the means aforesaid, did citing Bacon, Abr. pp. 167–170, 174; 2 kill and murder, against the peace and dig. Hawk. P. C. 26, $ 4. Therefore, being of nity of the state.” Such was the essential the same dignity, and for the same purpose, requirement of the common law, and when they must, in cases of murder, be governed the people of Missouri, in their organic law, in their material allegations by the same ordained “that no person shall, for felony, law. Therefore the information is invalid, be proceeded against criminally otherwise and, being so, the question may be properly than by indictment,” they meant an indict. raised for the first time in this court; and, ment as understood at common law. Long while it cannot be amended in this court, prior to the adoption of our Constitution the it may be amended as to matter of form or word “indictment” had been construed, and substance at any time by leave of court was well understood by our people; and it before trial. Rev. Stat. 1899, $ 2481. Our had uniformly been held that, in an indictconclusion is that an information for mur- ment for murder, it was essential that it der should conclude, “And so the prose. should conclude, "and so the grand jurors, cuting attorney aforesaid upon his oath upon their oath, do say,” etc. The settled does say that the said

him, the construction from Coke down to State v. said --, in manner and form, felonious Meyers, 99 Mo. 107, 12 S. W. 516, I accept, ly, deliberately, premeditatedly, and of his and have followed during my incumbency malice aforethought, did kill and murder.” here.

Depositing of the affidavit of Robert Cox The question here is, Are those words with the clerk of the circuit court of the "upon his oath,” or “upon his official oath,” county was suflicient filing, within the mean as necessary to a valid information for muring of $ 2477, Rev. Stat. 1899. But, even der since the adoption of the amendment

permitting the prosecution of murder by in- | the solicitor general are largely distributed formation as they are in an indictment? among our district attorneys, whose office The conclusion of the majority of my breth- does not exist in England, they would seem ren is that they are, and that the informa- to be entitled, under our common law, to tion in this case is invalid for that reason. prosecute by information, as a right adherWith the utmost respect for the judgment ing to their office, and without leave of of my colleagues on this point, I am con- court.” This statement of Bishop met the strained by my investigation to take the express sanction of this court in State v. contrary view, and dissent. At the outset, Kyle, 166 Mo. 306, 56 L. R. A. 115, 65 S. I agree that both at common law and un- W. 763. der our Constitution an information should Having settled that the information of and must be as certain and definite as to our Constitution is the common-law inforits statement of the essential facts consti- mation, in the absence of a statute prescribtuting an offense as an indictment, being a form or additional safeguards, let us cause the defendant is entitled to know inquire what was the form of the commonthe nature and cause of the accusation law information. A form for an informaagainst him, in order to enable him to pre- tion for murder at common law is not to pare his defense. 2 Hawk. P. C. p. 369; be found, because murder was prosecuted Wharton, Crim. Pl. 9th ed. $ 87. It will by indictment of a grand jury; but obvihardly be controverted that this informa- ously it was the purpose of the people, in tion measures up strictly to every requisite adopting information as a method of proof a good common-law indictment as to the cedure, to adopt the common-law informastatement of every fact necessary to advise tion, as far as applicable to the prosecuthe defendant of the nature and cause of tion of felonies. Nowhere in the criminal the accusation against him. The only pos- informations of the common law was the sible objection urged against it, or that can attorney general or solicitor general or the be lodged against it, is that the prosecuting Crown officer of the King required to allege attorney, who preferred the information in that “upon his oath of office,” or “upon his his official character, did not repeat his con- official oath,” he gave the court to underclusion that "upon his oath” or “official stand and be informed that an offense had oath,” he made the charge of murder. been committed. Mr. Bishop, in his first

As I understand the reasoning of my volume of New Criminal Procedure, $ 712, brethren, it is held that, because an indict- says “that only in formal parts, at the bement was required to conclude that, “upon ginning and close, does this information difthe oath of the grand jurors,” the charge fer from an indictment.” But it does differ of murder was made, it must follow that, in these respects. The reason, I submit, is where an information is resorted to by the this: When the attorney general in Eng. prosecuting attorney, he must conclude by land filed his information, he did so virtute saying “upon his oath,” or “official oath," officii, and it was an official act; and the that he makes the charge. I have already courts took ex officio notice of his office, adverted to the fact that we have held that and of his right to file and prosecute the an indictment for murder must conclude offense without leave of the court. As the with a charge that the defendant did kill law never requires a useless thing, why and murder, upon the oath of the grand ju- should he have been required to state that rors, because we have adopted the common his official act was under his official oath? law indictment. The same reasoning neces. The answer is, the courts of England never sarily applies to an information, for, when required him to allege that he preferred an we incorporated an information, in the Con- information upon his oath of office. Whenstitution, as a mode of prosecuting felonies, ever he filed an information, it was his ofwe likewise imported it from the common ficial act, and was done under the sanction law, and, by the same token, it must be of his oath of office; and so I say the same understood in its common-law sense. State official character is stamped upon the inforv. Kyle, 166 Mo. 303, 56 L. R. A. 115, 65 S. mation filed by the prosecuting attorneys. W. 763; Ex parte Slater, 72 Mo. 102; State The courts are bound to recognize their offiv. Kelm, 79 Mo. 515. Bishop in his new cial acts, without alleging the nontravers. Criminal Procedure, Vol. 1, 4th ed. $ 144, able statement that they have filed their in. says: “The criminal information should formations under their oaths of office. Our be deemed to be such, and such only, as in statute (Rev. Stat. 1899, $ 2535) provides England is presented by the attorney or that no indictment or information shall be solicitor general. This part of the English deemed invalid for want of the averment of common law has plainly become ours. And any matter not necessary to be proved. Every as, with us, the powers which in England circuit court is bound to take judicial notice are exercised by the attorney general and of the incumbent of the office of prosecuting attorney in the counties in which it is held, the state of Missouri, on the 8th day of Auand it is entirely unnecessary to prove the gust, 1903, did kill and murder, against the prosecuting attorney's title to the office, or peace and dignity of the state.” The only i hat what he asserts as such oflicer is un omission, therefore, that can be suggested, der his oath of office. State v. Sickle, Bray- is the failure to state that “upon his oath ton (Vt.) 132; Territory v. Cutinola, 4 N. aforesaid” he makes said information and M. 305, 14 Pac. 809; 3 Burn, Justice of the charge. It was pointed out in Rer v. Peace, 911; 1 Chitty, Crim. Law, 845, 847. Wilkes, 4 Burr. 2527, by Lord Mansfield, In Kelm's Case, 79 No. 515, it was pointed that there is a difference between informaout that “the text-books are uniform in de- tions and indictments. Indictments are tining an information to be an accusation or found upon the oaths of a grand jury, complaint exhibited against a person for and can only be amended by themselves. some criminal offense, either immediately Whereas, "informations are as declarations against the King, or against a private per- in the King's suit.” I have, after the most son, which, from its enormity or dangerous careful research, been unable to find any tendency, the public good requires should case in which at common law it was ruled be restrained and punished, and differs prin- that it was essential to the validity of an cipally from an indictment in this: That information that the attorney general or an indictment is an accusation found by the solicitor general or the Crown oflicer of the oath of twelve men, whereas an information King's bench should state that he made his is only the allegation of the officer who ex- charge "upon his oath,” or “official oath ;” hibits it.' 5 Bacon, Abr. pp. 167, 170, 172; and, as we have no statute prescribing such 2 Hawk. P. C. chap. 26, § 4.” The usual'a form, I think it should be ruled that such and accepted formula was that the attorney an allegation is not essential, and that this general, or the solicitor general if the office objection to this information is not tenable. of attorney general was vacant, and in cer- That the prosecuting attorneys of the sevtain cases the Crown officer in the King's eral counties in this state may prosecute bench as a matter of right, and without by information, as a right adhering to their leave of court, filed the information, and, in office, and without leave of the court, is behalf of the King, "gave the court to under now the accepted law of this state. State stand and be informed that the defendant, v. Kelm, 79 Mo. 516, 517; State v. Ransat," etc., committed the particular offense. berger, 106 Mo. 145, 17 S. W. 290; State v. It was required that he state with certainty Kyle, 166 Mo. 303, 56 L. R. A. 115, 65 S. all the material parts of the alleged crime, W. 763. Prosecuting attorneys are officers and not by way of argument or recital, but whose duties and terms of office are preit was not necessary for him to state that he scribed by law, and the several courts take made such allegations under his official oath, judicial knowledge of the incumbent of this either in the commencement or conclusion office in the several counties. When, thereof his information. Whereas, as the grand fore, a prosecuting attorney files an inforjury could only make their presentment mation in a criminal cause, he is presumed under their oath, it was essential that their to do so by virtue of his office, and it is not indictment should show that they charged necessary for him to allege his right to do the defendant by virtue of their oath. As so. As he is authorized by his official posisaid by Judge Sherwood in State v. Meyers, tion to file an information and prosecute 99 Mo., loc. cit. 116, 12 S. W. 518: “Of the alleged offender, the presumption is course, if a crime is to be charged, it must that when, as in this case, he informs the be done by the grand jurors upon their court in his official character, as prosecutoaths. It does not appear that the grand ing attorney, it should be held that what he jurors have charged murder in the conclu- alleges is under and by virtue of his oath sion before us.” In that case the conclu- of office; and no good reason can be seen sion altogether omitted any charge by the why he should allege that he makes the in. grand jurors under their oath, but merely formation upon his oath, or official oath, stated, "and so said Charles Meyers and as the very filing in his official character John Bogard in manner and form,” etc. necessarily implies that he does so in obeWhereas in this case the conclusion is, “And dience to the obligations of his official oath, so the said L. N. Dempsey, prosecuting at- and in the performance of the duties of his torney within and for Chariton county, office. As already said, the information in Missouri, as aforesaid, says that he, the this case having been made by the prosesaid Jasper Coleman, him, the said Rufus cuting attorney in his official character, it Cox, in the manner and form and by the would add nothing to the security of the means aforesaid, feloniously, wilfully, de defendant for that officer to state that he liberately, premeditatedly, and of his malice charged the defendant with the offense upaforethought, at the county of Chariton, in on his oath as such officer. All that he

V.

alleges, all that he charges, must be con- | ligent, in not observing the approaching car, clusively presumed to be upon that oath, does not relieve the appellant of liability which was one of the prerequisites to his where the motorman saw respondent in a qualifications for the office itself.

perilous situation in time to have avoided To guard against groundless and vindic- injuring her. tive prosecutions, and to secure good faith Bunyan v. Citizens' R. Co. 127 Mo. 12, 29 in the institution of criminal proceedings. S. W. 842; Klockenbrinke v. St. Louis & the general assembly has required the in- 11. River R. Co. 172 Mo. 678, 72 S. W. 900. formation to be verified by the prosecuting Respondent's perilous situation is not attorney or some competent witness; but confined to the time her horse came upon I submit this is the only requirement of an appellant's track. It arose the moment the oath by the prosecuting attorney, and that motorman saw the respondent approaching nowhere is he required to state in the the track in a manner indicating that she body of his information that it is under was intending to cross in front of a near oath, or official oath.

approaching car, which she seemingly did not see.

Bunyan v. Citizens' R. Co. 127 Mo. 12, 29 Fannie R. MARKOWITZ, Respt.,

S. W. 842; Ennis v. Union Depot R. Co. 155

Mo. 20, 55 S. W. 878; Klockenbrink v. ST. METROPOLITAN STREET RAILWAY

Louis & M. River R. Co. 172 Mo. 678, 72 S. COMPANY, Appt.

W. 900; Jackson v. Kansas City, Ft. $. &

31. R. Co. 157 Mo. 621, 80 Am. St. Rep. 650. (186 Mo. 330.)

58 S. W. 32.

This accident was not the result of mu. 1. The owner of a wagon, seated be- tual or concurring negligent acts of the re

side the driver whom he employs, is chargeable with the driver's negli- spondent and the motorman. The causal gence in attempting to cross a street car connection between respondent's negligence track in front of an approaching car which and her resulting injuries ceased the mois in plain sight.

ment the motorman observed her in a posi2. It is negligence to attempt to drive tion of peril and in time to have avoided

across a street car track in dangerous the injury to her.
proximity to an approaching car which is in
plain sight, whetber the car is actually seen

Watson v. Mound City Sireet R. Co. 133 or not.

Mo. 251, 34 S. W. 573; Bunyan v. Citizens' 3. A motorman in charge of a street | R. Co. 127 Mo. 12, 29 S. W. 842. car, upon seeing a wagon approach

On motion for rehearing. ing the track, has the right to presume that

In declaring the law to be that the motorthe driver will use his senses to avoid driving onto the track in front of the car.

man must not only have been guilty of neg. 4. 'To hold a street car company liable ligence, but of gross negligence, or reckless

for the results of a collision with a or wanton conduct, after discovering plainteam attempting to cross the track in front tiff's peril, the decision is contrary to-of a car notwithstanding the negligence of

Sullivan v. Missouri P. R. Co. 117 Mo. the driver, those in charge of the car must have been guilty of gross negligence, or reck- 214, 23 S. W. 149; Kreis v. Missouri P. R. less and wanton conduct.

Co. 131 Mo. 533, 30 S. 1. 310, 33 S. W. 64,

1150; Morgan v. Wabash R. Co. 159 Mo. (December 22, 1904.)

262, 60 S. W. 195; Klockenbrink v. St.

Louis & M. River R. Co. 172 Mo. 678, 72 S. A PPEAL by defendant from a judgment W. 900; Moore v. Lindell R. Co. 176 Mo.

of the Circuit Court for Jackson County 529, 75'S. W. 672; Dlauhi v. St. Louis, I. in favor of plaintiff in an action brought to recover damages for personal inj ries al. 4. & S. R. Co. 139 Mo. 291, 40 S. W. 890: leged to have been caused by defendant's Hanlon v. Missouri P. R. Co. 104 Mo. 390, negligence. Reversed.

16 S. W. 233; Reardon v. Missouri P. R. Co. The facts are stated in the opinion.

114 Mo. 385, 21 S. W. 731. Ur. John H. Lucas for appellant.

Even if this court should insist that it 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 Owosso, 23 L. R. A. 693 ; Illinois C. R. Co. v. imputing negligence of driver to person injured McLeod, 52 L. R. A. 954 ; Koplitz v. St. Paul, while driving with him, see Nisbet v. Garner, 58 L. R. A. 74; Neal v. Rendall, 63 L. R. A. 1 L. R. A. 152, and note; Becke v. Missouri P. 668; Duval v. Atlantic Coast Line R. Co. 65 R. Co. 9 L. R. A. 157, and note; Union P. R. L. R. A. 722. Co. v. Lapsley, 16 L. R. A. 890; Mullen v.

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