Arthurs v. Johnson
| Decision Date | 24 June 1955 |
| Citation | 280 S.W.2d 504 |
| Parties | Hubert ARTHURS, a Person of Unsound Mind and Annie Mae Arthurs, His Committee, Appellants, v. Mae JOHNSON, Widow of C. J. (Creed) Johnson, Deceased, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Harvey Parker, Jr., Vanceburg, W. G. Kenton, Maysville, for appellants.
Jack R. Kibbey, Vanceburg, for appellee.
CULLEN, Commissioner.
C. J. (Creed) Johnson, a deputy sheriff of Lewis County, went with the sheriff and another deputy to the home of Hubert Arthurs for the purpose of taking him into custody on a warrant for a lunacy inquest. Johnson was killed by gunshots from inside the house. His widow brought this action to recover damages for wrongful death, against Arthurs, for whom in the meantime a committee had been appointed. The action was based upon KRS 411.150, which permits the widow to sue for a death caused by the 'careless, wanton or malicious use of a deadly weapon, not in self-defense.' The case was tried by the court without a jury, and the court gave judgment against the defendant for $7,500 compensatory damages. Arthurs, through the committee, has appealed.
The following grounds for reversal are asserted:
1. The proof showed that the plaintiff was not the legal widow of Johnson.
2. The evidence was not sufficient to establish that Arthurs was the person who fired the fatal shots.
3. The attempted arrest was not lawful, because the officers did not inform Arthurs that they had a warrant for his arrest; therefore, Arthurs had the right to resist the arrest with impunity.
4. The burden was upon the plaintiff to establish that the killing was not in self-defense, and this burden was not met.
The evidence showed that the minister who performed the marriage ceremony for the Johnsons, some three years before the killing, was not legally qualified because he had not obtained a license as required by KRS 402.060. However, there was adequate proof that for several years the minister had held himself out to the public as having authority to perform marriage ceremonies; he had performed a number of ceremonies in the community; the Johnsons believe he had such authority, and they consummated the marriage and thereafter lived together as man and wife until Johnson's death. Under KRS 402.070, this was sufficient to validate the marriage.
The sheriff and his deputies went to Arthurs' home around 7:00 p.m., after having been informed by relatives of Arthurs that he was in a violent and dangerous mood, and was walking around the house with a shotgun in his hands, and after the relatives had made an affidavit for a lunacy inquest upon which a warrant had been issued. When the officers arrived, the house was dark. The sheriff went upon the front porch and engaged in conversation, through the closed door, with a man whom the sheriff identified by voice as being Hubert Arthurs. The sheriff requested Arthurs to come out, but he refused, saying among other things that he intended to 'die with his boots on'. The sheriff could hear another person in the house, whom he identified by 'whimpering' sounds as being a woman, and who it is reasonably certain was Arthurs' wife. After a short time, Johnson fired a tear gas shell through a window of the house, and simultaneously was hit by gunshot fired from inside the house. He staggered up to the front porch and fell, and the sheriff and the other deputy temporarily withdrew. After some 20 minutes the sheriff again went to the front door and talked with Arthurs. The sheriff said: Arthurs replied that he was not coming out of the house. The sheriff then fired several pistol shots into the house, and was wounded in the hand by gunshot fired from inside the house. He was taken to a hospital, and returned some two and a half hours later with additional deputies, at which time they removed Johnson's body from the front porch. The evidence does not show when Arthurs eventually was taken into custody.
We think it is obvious that the evidence, although circumstantial, was sufficient to establish that Arthurs was the person who fired the fatal shots. He was in the house, armed with a shotgun, and in a violent and dangerous mood. He an...
To continue reading
Request your trial
-
Hayes v. Com.
...futile or where the officer has no reasonable opportunity to comply with it. Nickell v. Commonwealth, Ky., 285 S.W.2d 495; Arthurs v. Johnson, Ky., 280 S.W.2d 504; Sizemore v. Commonwealth, 279 Ky. 190, 130 S.W.2d 31, and Dale v. Commonwealth, 186 Ky. 510, 217 S.W. We are of the opinion tha......
-
Nickell v. Com.
...510, 217 S.W. 363; Neal v. Commonwealth, 229 Ky. 832, 18 S.W.2d 314; Sizemore v. Commonwealth, 279 Ky. 190, 130 S.W.2D 31; Arthurs v. Johnson, Ky., 280 S.W.2d 504. The officers admitted they did not tell Nickell why he was being arrested, but the view is inescapable that he knew he was bein......