State v. Browers

TIPTON, J. An information was filed in the circuit court of -Iron County, Missouri, charging the appellant and his, brother, Irvin Browers, with the crime of felonious assault, under Section 4410, R. S. Mo., 1939. Their application for a change of venue was granted and the cause was sent to Washington County where a-severance was granted the appellant. The jury found the appellant guilty as charged and assessed his punishment at a fine of $100.00. From that judgment and sentence he has- duly, .appealed to this court. - The appellant’s first assignment of error is that .the evidence is insufficient to sustain the verdict. We will, therefore, relate the evidence most favorable to the State. The evidence, disclosed that, on August 3, 1945, a trailer truck and a state guard jeep drove up.on Highway No. 21 and stopped near the court house in .Ironton, Missouri. The appellant got out of his truck and state guardsman Earl T. Lamons stepped out of the jeep. Appellant and Lamons began arguing about- the appellant’s driving his truck into the jeep some distance from Ironton. Lamons called to George Blue, the city marshal of Ironton. When Blue arrived near the scene of the argument, Trvin Browers jumped off the rear of the truck .and, said to Blue, “Don’t you interfere, you -s-— o— b — ...” Blue pulled his,revolver and told Irvin Browers he was under arrest. Blpe. testified, “He stood there a minute and I told him to get going.. He said, ‘Where are we going?’ I said, ‘We are going to-jail.’ He started ■walking and ive went up in the cro-wd and he started circling in the crowd and when he did he run up against a tree. When he did that *1198 I hit him with a blackjack and he started running away. When he did, I shot in the ground trying to stop him and I jumped down in the street and when I did Harvey Browers jumped on my back and knocked me down . . . ” A state guardsman took the gun out of Blue’s hand and someone took Harvey Browers off of Blue. Irvin Browers had crossed the street and had gone into a barber shop. Blue started after appellant with a gun in one hand and a blackjack in the other, and told him he-was-under arrest.. Appellant grabbed a person in the crowd and held this person in front of him as a shield. Blue testified on cross examination that appellant held this person to keep him, Blue, from hitting appellant with a blackjack; that he -hit at appellant with the blackjack; that Irvin came back across the street and jumped on his back, knocking him down; and when he did this appellant took the gun away from Blue, shot three times in the ground, fired one shot into a building and then shot Blue in the side. Appellant then hit him with the butt of the gun, kicked him and stamped him. Blue also testified that when he told Irvin Browers he was under arrest that Irvin did not have a gun and did not resist hini. ■ The evidence showed that Blue was bleeding about his face and that his chest bone was broken. ' Appellant denied that he shot Blue and contended that Blue shot himself when Irvin jumped on his back.' He testified that he grabbed Blue after he shot at his brother and finally got his gun to keep Blue from killing his brother. • The’ évidence discloses "no felony had been committed. If any crime had been committed, it was in the operation of appellant’s truck before it reached' Ironton, but' the evidence does not disclose that to be a fact. Appellant contends that assuming a. misdemeanor had been committed, Blue had no right to shoot at Irvin Browers, even though he was trying to escape, citing State v. McGehee, 308 Mo. 560, 274 S. W. 70 and State ex rel. Kaercher v. Roth, 330 Mo. 105, 49 S. W. 2d 109; and, also, since Blue had no right to arrest Irvin Browers, he had the right to resist such arrest with such force as was necessary to prevent it. If this be true, the fact remains that Blue’s status at the time of the assault was that of'a private citizen. As previously stated, the information was drawn-under Section 4410, supra, and "all that is required under that section are circumstances which would constitute murder or manslaughter if death had ensued. “All that is necessary under this section is that there shall be. an unlawful wounding or the infliction of great bodily harm in case's and under circumstances not (Acusable or justifiable.” State v. janke, 238 Mo. 378, l. c. 383, 141 S. W. 1136. We think the evidence in sufficient to sustain a verdict under the information. *1199 The appellant’s next assignment of error.is that instruction number one is erroneous. His complaint is that by this instruction ‘the jury was told that if the appellant used a pistol loaded with gun powder and leaden balls, and did then and there strike, beat or stamp George Blue he was guilty of a felony. The first part would warrant an instruction on felonious wounding, but the second part, in the absence of any qualifying term, could only mean a misdemeanor.” In other words, appellant contends that since the jury was told to find that the striking, beating or stamping of Blue was not done with a- deadly weapon that those facts would constitute only common assault. , • We cannot agree with appellant. -Appellant-was charged with felonious assault under Section 4410, supra. We held in the case of State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73; that the breaking of the skin constitutes a wounding within the meaning of that section. The instruction was therefore.-proper. ■, . Appellant contends that-the trial court, erred in failing .to. instruct on the law of self defense. There-is evidence in this case that Irvin Browers had not committed a crime, neither a felony nor a misdemeanor, and that city marshal Blue shot at him while trying to make an illegal arrest. In State v. McGehee, supra, we held that a'person had a right to . resist an arrest with such force as is necessary to prevent the arrest if the officer had no right to arrest him. In State ex rel. Kaercher v. Roth, supra, we held that an officer is never justified in shooting at one guilty of a misdemeanor to effectuate his arrest ,or prevent his escape. Appellant .testified that he attacked Blue after he shot , at his brother to prevent him from killing his brother. If this is true, appellant had the right to use such force as was reasonably necessary to repel the assault «n his brother. State v. Lemon, 263 S. W. 186; State v. Rennison, 306 Mo. 473, 267 S. W. 850; State v. Wright, 352 Mo. 66, 175 S. W. 2d 866; State v. Havens, 177 S. W. 2d 625. Since there was evidence to show self defense, it was the; duty of the'trial court to give a proper instruction on self defense, whether requested or not. ■ For the failure to'give an.instruction on self defense, the judgment .of the trial court- should be reversed and .remanded. It is so ordered. All concur; Ellison, J., in separate'concurring opinion in which Leedy, P. J., concurs.