Ballard v. State

• Citation: 43 Ohio St. 340,1 N.E. 76
• Parties: BALLARD v. STATE.
• Decision Date: 16 June 1885
• Court: United States State Supreme Court of Ohio

43 Ohio St. 340

1 N.E. 76

BALLARD

v.STATE.

Supreme Court of Ohio.

Filed June 16, 1885.

Motion for leave to file petition in error to the court of common pleas of Greene county.

A great number of errors are assigned, all of which have been passed upon by the court, but only one is reserved for report. The indictment was for murder in the first degree, in killing one John T. Van Doren, marshal of the town of Wilmington, Clinton county, and, on change of venue, the accused was convicted and sentenced for manslaughter in Greene county. Van Doren, as marshal, was in the act of arresting Ballard for carrying concealed weapons, when he was shot by the latter. The marshal had no warrant. There was resistance by Ballard, and a struggle, during which, by the discharge of Ballard's pistol, Van Doren was killed. Whether the arrest without warrant was authorized, and under what circumstances one thus arrested may defend himself, were questions directly involved by the evidence. Upon these questions the court charged as follows:

‘In reference to the lawfulness or unlawfulness of the alleged arrest or attempt to arrest, I say to the jury that by the laws of Ohio the marshal of a village is bound to arrest any person in the act of committing any offense against the laws of the state, and forthwith bring such person before the mayor or other competent authority for examination or trial. According to the literal reading of the statute, the lawfulness of the arrest depends upon one thing alone, namely, the fact that the person arrested is, at the time of the arrest, in the act of violating a law of the state; and it is claimed by the state that the belief, or the knowledge, or the suspicion of the officer making the arrest, as to the guilt or innocence of the party arrested, does not affect the question, and is immaterial.

‘The state admits that deceased had no warrant for the arrest of defendant, and no claim is made that defendant was committing or had committed a felony. It is claimed by the state that at the time of the alleged arrest deceased was marshal of the village of Wilmington, in Clinton county, Ohio; that the defendant was going about the streets of said village with a pistol concealed upon or about his person; that he was carrying such pistol unlawfully,-that is to say, he was engaged in no lawful business, calling, or employment; and the circumstances in which he was placed were not such as would justify a prudent man in carrying a pistol for the defense of his person, property, or family; and that deceased, hearing of this, attempted to disarm him first, and, failing in that, put him under arrest for carrying such weapon concealed upon or about his person; and, having so put him under arrest, was proceeding to take him before the proper officer for such legal proceedings as might be warranted by law, when the homicide occurred. If the jury are satisfied that these facts are proven, then the arrest was lawful, and defendant ought quietly to have submitted to it.

‘The point is made by defense that unless the officer has absolute knowledge that an offense is being committed against the laws of the state, he has no right to arrest, without a warrant, for a misdemeanor. This claim is not tenable. If the person arrested is, as a matter of fact, in the act of committing such offense at the time of the arrest, and the officer has information or knowledge which induces him to reasonably believe, and at the time of the arrest he does believe, that such offense is being committed, and the arrest is made on that account, this is sufficient.

‘The charge in the Weymouth Case has been read as to this point, and referred to in your hearing, in which the judge told the jury, very correctly, that the officer must have personal knowledge of the offense and the offender. This, as I say, was good law for that case, because in that case the claim was not made, as it is here, that, as a matter of fact, the defendant at the time of the arrest was committing any offense, nor was there any evidence, as I understand the case, to support such claim.

‘The state there claimed that the accused had been violating an ordinance of the village of Cedarville, but the officer was not present during the commission of the unlawful act, and it was fully completed before the alleged arrest was made. If the officer has no knowledge or information as to the commission of the offense, I say to the jury the arrest would be unlawful, even though the party arrested were, at the very time of the arrest, in the act of committing the offense for which he was arrested.

‘The state claims that if an officer, at a venture, without any...