Banks v. Bradley, 3796

• Decision Date: 05 September 1951
• Docket Number: No. 3796,3796
• Citation: 192 Va. 598,66 S.E.2d 526
• Court: Virginia Supreme Court
• Parties: MARY ANN BANKS, ADMINISTRATRIX, ETC. v. JOE BEN BRADLEY. Record

Page 526

66 S.E.2d 526

192 Va. 598

MARY ANN BANKS, ADMINISTRATRIX, ETC. v. JOE BEN BRADLEY.

Record No. 3796.

Supreme Court of Appeals of Virginia

September 5, 1951.

S. W. Tucker, Martin A. Martin and Robert H. Cooley, Jr., for the plaintiff in error.

L. C. Harrell, Jr., for the defendant in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

On June 5, 1948, Joe Ben Bradley, a police officer of the town of Emporia, shot and killed Solomon Perry Banks. The homicide occurred about 2:30 o'clock a.m. in the county of Greensville on State Route No. 614, two miles beyond the corporate limits of Emporia.

An action at law under section 8-633, Code, 1950, (sec. 5786, Code, 1942), was instituted by Banks' administratrix against Bradley for the alleged wrongful killing of her intestate. Defendant Bradley asserted that the killing was in self-defense and the case was tried upon that dominant factual issue. To the judgment confirming a verdict which denied recovery to the administratrix, this writ of error was granted.

Plaintiff in error asserts that the evidence did not justify submission of the issue of self-defense to the jury and that the court erred to her prejudice in certain instructions which it gave. The assignment of error which has to do with the sufficiency of the proof requires that the material facts and circumstances preceding and surrounding the tragedy be set out in detail.

Due to recent complaints to the Chief of Police of the town of Emporia that several business establishments had been unlawfully broken into, he issued orders to his officers 'to check on cars on streets and alleys in the business district late at nights.'

At 10:00 o'clock p.m., June 4, 1948, Officer Bradley, accompanied by Officer C. W. Young, each attired in police uniforms, began an eight hour tour of duty. They occupied one of the police cars owned by the town upon which vehicle was marked and plainly visible the word 'Police'. About 2:00 o'clock a.m. that night, while cruising through the business section of town, they observed a black Packard sedan occupied by two negro men moving slowly along Halifax Street. The officers drew their car up near the sedan and Bradley, who was driving, sounded the siren signifying that the sedan should be stopped. They intended to check the occupant's driving permit and make such inquiries as they deemed appropriate. Instead of stopping, the driver materially increased the speed of his car, 'ran through a stop sign at the intersection of Atlantic Street,' and soon attained the excessive speed of 'sixty to seventy miles an hour.' The officers, with their siren sounding, undertook pursuit to and across the corporate limits and thence into Greensville County. The chase continued along and across numerous State highways, and in various directions until the cars had traveled well outside and beyond the radius of a mile from the limits of the town.

When some two miles from Emporia and traveling at an unlawful speed along Highway No. 301 and with his driving lights turned off at times, Banks undertook to negotiate a turn into Route No. 614 and in so doing, drove into the ditch on the side of that road. The officers who had continued in close pursuit stopped their car on Route 301, with its headlights shining on the Packard sedan, the rear wheels of which the driver was 'then spinning' in his endeavor to extricate it from the ditch.

The two officers then approached the standing sedan and undertook to arrest the occupants. Officer Young proceeded to the right side of the car where a man whose name was Andrew Frazier was seated. He encountered no difficulty in effecting 'the arrest' of that occupant (but upon what charge does not appear) and Frazier peaceably accompanied him toward the police car. Officer Bradley approached the left side of the sedan and asked the driver 'what he was up to' and Banks' reply was, 'Nothing.' He then told Banks he was under arrest and to get out of the car. Upon his failure to reply or move from his seat at the wheel, the officer opened the left door of the car and took hold of his arm, whereupon Banks resisted and grabbed Bradley 'in the collar of his shirt with his left hand, and commenced choking the officer' with that hand and 'striking him in the face with his right hand.' Bradley thereupon 'pulled his blackjack and attempted to strike back,' but as the driver was still in the car, his efforts in that respect were ineffectual. He did not recollect how many blows he struck or whether or not any landed but Banks succeeded in grabbing the blackjack away from him, 'and came out of the car fighting.' The officer then reached for a set of handcuffs and undertook to put them on decedent, but Banks grabbed them from his hand, struck him across the wrist with the handcuffs, broke his watch and bruised his wrist. Decedent then dropped or threw away the handcuffs and as the encounter continued, he secured a hold around Bradley's neck with his right arm and with his left hand pushed the officer's head back, and with several sharp jerks of the head, caused Bradley to release him. Decedent thereupon released his hold or 'broke away and stepped backwards about six or eight feet,' and upon the officer calling, 'Halt', Banks stopped and 'threw his right hand toward his right hip pocket as he made a step forward toward the officer.' The officer says that when decedent made that move, he believed 'Banks was about to shoot him' and he grabbed his pistol with his right hand from its holster on his left side and fired one shot at decedent. He further said 'that his sole reason for shooting was to protect his own life.'

Banks, who was found to have had no weapon of any character, was severely wounded by the pistol bullet which struck him in the left mammary region about two inches below the nipple and ranged downward. The officers took the wounded man and his companion to the sheriff's office in the town of Emporia where Frazier was released and no charges placed against either man. A private ambulance was secured and decedent sent to a hospital where he died within an hour or two.

The evidence further discloses that Officer Bradley is five feet nine or ten inches in height, that decedent was about six feet tall, and in the encounter, Bradley's shirt was torn and he received an abrasion on his arm.

By Instruction No. 1, the court informed the jury that the officers had no jurisdiction or power to arrest decedent when he was more than a mile beyond the limits of the town of Emporia. That was, we think, correct, for the offenses committed were but misdemeanors. Secs. 2991 and 3006, Code, 1942, now secs. 15-557, 15-560, Code, 1950; Alexandria v. McClary, 167 Va. 199, 188 S.E. 158; Wilson v. Mooresville, 222 N.C. 283, 22 S.E. (2d) 907; Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.ed. 1663; The Law of Arrest in Civil and Criminal Cases, Voorhees, sec. 142 p. 125; 4 Am. Jur., p. 35, sec. 51; 6 C.J.S., 'Arrest', sec. 12(2).

Though the traffic violations were flagrant and committed in the presence of Bradley and Young, those officers, without a warrant, lacked the power or right to effect the arrest of the violator beyond the limit of their jurisdiction which was confined to the town of Emporia or within one mile of its boundary.

'The power of a policeman to make an arrest by virtue of his office is subject to well-recognized territorial limits. He can act only within his city or within one mile of its corporate limits.' Secs. 15-557, 15-560, Code, 1950, and Alexandria v. McClary, supra, at p. 203. ¹

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