Muscoe v. Commonwealth
| Decision Date | 09 January 1890 |
| Citation | 10 S.E. 534,86 Va. 443 |
| Parties | Muscoe v. Commonwealth. |
| Court | Virginia Supreme Court |
Homicide—Resisting Arrest—Police Officer-Instructions.
1. If the ordinance of the city of Charlottesville providing that every policemen, when any offense is committed in the town, shall try to detect and arrest the offender, confers greater power on policemen in respect to arrests than is conferred by the general laws on constables, and authorizes them to arrest without warrant, for misdemeanors not commited in their presence, it is void; and, on trial for murder in killing a police officer of that city who was trying to arrest defendant, without warrant, for an alleged past misdemeanor, an instruction, based on such ordinance, that a police officer has no right to arrest without warrant, except for offenses committed in his presence, or where he has cause to suspect that a felony has been committed, "or in pursuance of legal ordinances of the city of whose police force he is a member, " is misleading and erroneous.
2. A subsequent instruction, leaving it entirely to the jury to say whether or not the arrest of defendant by deceased was legal, is reversible error, though, by the same instruction, the jury are told that a police officer who exceeds his powers in making an arrest is a trespasser, and that one may resist an unlawful arrest, but are not told what the police officer's powers are, except as in the former instruction.1
Error to corporation court of Charlottesville.
William Muscoe, alias William Jordan, was convicted of murder in the first degree. His motion for new trial was denied, and he was sentenced to death, and brings error. G. T. Seal, the deceased, was a policeman of the city of Charlottesville, and was shot and killed by defendant while he was arresting the latter, without a warrant, for a misdemeanor not committed in deceased's presence.
The following ordinances of the city of Charlottesville were shown in evidence: The third and fourth instructions given by the court were as follows:
Jas. H. Hayes, for plaintiff in error. R. A. Ayers, Atty. Gen., for the Commonwealth.
Lewis, P. We are of opinion that by its third and fourth instructions the corporation court misdirected the jury, and that for this error the judgment must be reversed, and a new trial awarded. The third instruction is erroneous, because there was no "legal ordinance of the city" empowering the deceased to arrest the prisoner, without a warrant, for a misdemeanor not committed in his view; and the instruction was therefore calculated to mislead and confuse the jury. The seventh ordinance, relating to vagrants, may be laid out of the case, as the charge upon which the deceased arrested the prisoner was not vagrancy, but petit larceny. It is contended, however, that the sixth ordinance applies to the case, and authorized the arrest. But we do not think so. The ordinance does, indeed, provide on its face that every policeman, when any offense is committed in the town, shall endeavor to detect and arrest the offender; but, if this was intended to confer upon the police force of the city greater authority with regard to arrests than constables possess, the ordinance is ineffectual for any such purpose, for, to that extent, it is not warranted by the charter of the city, or by any statute, and is in contravention of the general law of the state, and therefore void. An ordinance, to be valid, must be reasonable. It must not be oppressive, and, unless plainly authorized by the legislature, it must not be inconsistent with the general principles of the common law, particularly those having relation to the liberty of the people or the rights of private property. It is an established principle that a municipal corporation, deriving its powers, as it does, from legislative grant, can exercise no power not expressly, or by fair implication, conferred upon it; and hence, as the authorities uniformly hold, any doubt arising out of the terms used by the legislature must be resolved in favor of the public. Thompson v. Lee Co., 3 Wall. 327; Kirkham v. Russell, 76 Va. 956; 1 Dill. Mun. Corp. (3d Ed.) § 91, and cases cited. Indeed, the legislature has expressly enacted that, where the council or authorities of any city or town are authorized to make ordinances, the same must not be inconsistent with the constitution and laws of the United States, or of this state. Code 1887, § 5. The provisions of section 1038 of the Code, which, in general terms, authorize the councils of cities and towns to make ordinances, to appoint officers, and to define their powers and duties, are to be construed in the light of these principles; and, so construing them, we must hold that the police force of Charlottesville have no greater authority in apprehending persons charged with crime than the general laws of the state confer upon constables. Section 1034 of the Code declares, specifically, that the powers and duties of town sergeants, within their respective jurisdictions, shall be the same as those of constables; and if, by subsequent sections, the legislature had intended to authorize city councils to confer upon police officers greater powers in respect...
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State v. Clark
...it is necessary to save his own life or his person from great bodily harm." The same doctrine prevails in Virginia. Muscoe v. Commonwealth, 86 Va. 443, 10 S. E. 534; Briggs v. Commonwealth, 82 Va. 554. Our conclusion Is that this instruction was rightfully refused. What we have said in refe......
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...jury are not judges of the law in criminal cases any more than they are in civil cases. Brown v. Com.. 86 Va. 466, 10 S. E. 745; Muscoe's Case, 86 Va. 443. 10 S. E. 534. In the Brown Case, Judge Lewis quotes from Mr, Justice Story in United States v. Battiste, 2 Sumn. 240, Fed. Cas. No. 145......
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......230; State v. Phillips, 118 Iowa 660, 92 N.W. 876; People v. Melendrez, 129 Cal. 549, 62 P. 109; Thomas v. State, 91 Ga. 204, 18 S.E. 305; Muscoe v. Commonwealth, 86 Va. 443, 10 S.E. 534; Wharton on. Homicide, 3d ed., 611, sec. 393; 2 Michie on Homicide, 1455;. State v. McNinch, 90 N.C. ......
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