Brooks v. Commonwealth

• Decision Date: 25 March 1869
• Citation: 61 Pa. 352
• Parties: Brooks and Orme <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

61 Pa. 352

Brooks and Orme versus The Commonwealth.

Supreme Court of Pennsylvania.

March 16, 1869.

March 25, 1869.

March 16th 1869.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Oyer and Terminer of Monroe county: No. 357, to January Term 1869.

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C. Burnett and Strong (with whom were J. B. Storm and D. S. Lee), for plaintiffs in error.—If a felony was committed in the presence of a private individual, and he be killed in attempting to arrest the perpetrator, it was murder. But if the felony was not committed in his presence, and a private person proceeded to make an arrest, upon mere suspicion of guilt, and he be killed, it was manslaughter only: 4 Chitty's Cr. Law 17; 2 Hale's Pleas of Crown 82; 4 Black. Com. 293; 1 East P. C. 299. When a public officer in pursuance of legal process attempts to make an arrest and he is killed, it is murder. But in resisting irregular or defective warrants, &c., if the officer be killed, it is manslaughter: Roscoe's Crim. Ev. 708; 3 Greenleaf's Ev., § 123 and note; Bishop's Crim. Law, § 656.

S. Holmes, Jr., District-Attorney, and W. Davis, for the Commonwealth. —There is no distinction between the right of a private person without warrant to arrest for a felony committed in his presence and on suspicion. If the felony be committed in his presence it is his duty to arrest, in the other case it is his right: 4 Black. Com. 293; 4 Chitty's Cr. L. 17; Russell v. Shuster, 8 W. & S. 308; Wakely v. Hart, 6 Binn. 316; Hawkins's P. C. B. 2, ch. 12, § 8-19; Comyn's Dig. Imprisonment, H. 4. When the party arrested or about to be arrested, kills the party arresting, and the party arrested has actually committed a felony, the killing is murder: 1 Arch. Cr. Pr. and Pl. 786, 788, 25, 26, 99, 101, 103, 853, 854, 856; 1 Russ. on Cr. 593; Wh. Cr. L. 470-475; 5 Cush. 281; Foster 318; Roscoe's Cr. Ev. 611, 612; Jackson's Case, 1 East P. C. 298; 1 Hawkins's P. C. 81, § 11; Rowan v. Swain, 5 Cush. 281.

The opinion of the court was delivered, March 25th 1869, by AGNEW, J.

Thomas Brodhead kept the Brainerd House in Dutotsville, Monroe county. On the 25th of September last, returning home he was informed that his bar-drawer had been robbed by two men, who had left a very short time before. With his brother, Theodore Brodhead, he started in pursuit of the thieves and overtook them within a mile from home. When he came up he told them they must go back with him, that his bar had been robbed, and they were supposed to be the men. Brooks said he would go back, Orme refused. Thomas took Orme by the arm and told him he must go back too. Theodore Brodhead then came up. Brooks took money from his pocket and tried to throw it over a wall. A two-dollar bill fell near to Thomas, who let go of Orme to pick it up. While in the act, he heard Theodore cry out, "Don't you shoot." Looking up, he saw Brooks aiming a pistol at Theodore's head, and cried out, "You'd better not shoot." In an instant Brooks turned his pistol on Thomas and fired, and then wheeled upon Theodore and shot him down; Orme at this time crying out to Brooks, "Shoot them both down as soon as you can." Theodore was shot through the heart, and Thomas struck in the side, the ball glancing from a bundle of papers in his pocket. Thomas, much hurt, attempted to escape, followed by Orme, who fired at him, the ball grazing his forehead. Thomas turned instantly, clasped Orme around the arms and a scuffle ensued, Orme firing several shots at him, which missed. Orme called to Brooks for help, telling him to take a stone and knock out Thomas's brains. Brooks first struck him several blows with his pistol, and then took up a stone and beat him over the head and face, cutting and gashing him severely. Finally overpowered Thomas sunk down, and the prisoners fled. They were followed, caught and identified. These are the bare facts, stripped of superfluous statement. Thus a felony was committed; the prisoners were the felons; fresh pursuit was made by the owner of the stolen money, on reliable information of the felony. The felons when overtaken were informed of the felony, that they were believed to be the perpetrators, and told they must return, before either was taken hold of, and one began immediately to rid himself of the stolen money. On this state of facts the prisoners' counsel asked the court to charge the jury that Theodore and Thomas Brodhead, not being public officers but private citizens, had no authority to arrest them; that the arrest was illegal, and the killing of Theodore was not murder but manslaughter. The court declined so to charge.

It is a sufficient answer to say that the point required the court to take the facts from the jury, and pronounce the crime manslaughter only. But if the arrest were illegal it does not follow that the crime was necessarily manslaughter. There remained still the question on the evidence whether the killing was without malice, and arose solely from a sudden heat and passion upon the illegal arrest. The killing was evidently not the result of anger and hot blood growing out of an unwarranted assault on the persons of the prisoners. It was prompted by wickedness of heart and a consciousness of guilt which determined the prisoners to escape even by the sacrifice of innocent lives. It was violent, heartless, cruel and unnecessary, the pursuers having done no violent or dangerous act, and showing no arms or intention to injure. The killing was evidently malicious — that is, the result of depravity of heart, and a cruel and wicked disposition. It was murder (whether of the first or second degree is not material to the present question) and it was not manslaughter. The indulgence which the law shows in cases of manslaughter is to the weakness of human nature, not its wickedness. It looks upon men as they are, the creatures of natural impulses, and when justly provoked and transported by passion, ungovernable and deaf to the voice of reason. But the cause which produces this frame of mind must be reasonable and bear a just proportion to the effect. Therefore, says Sir William Russell, in his work on Crimes, vol. i., p. 514, "the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of; which he feels and resents at the instant the fact which he would extenuate is committed. All the circumstances must lead to the conclusion that the act done (though intentional of death or great bodily harm), was not the result of a cool deliberate judgment and previous malignity of heart, but solely imputable to human infirmity." Hence an illegal assault will not reduce the crime to manslaughter where the revenge is disproportionate and barbarous: Id. pp. 516-17. And if on any sudden provocation of a slight nature one beats another in a cruel and unusual manner, so that he dies, it is murder by express malice, though the other did not intend to kill him: Id. 517-18. He lays down this summary: "In all cases of slight provocation, if it may be reasonably collected from the weapon made use of, or from any other circumstances, that the party intended to kill or do some great bodily harm, such homicide will be murder:" Id. p. 520. See to the same effect Wharton's Am. C. L., § 971. The court, therefore, properly left this case to the jury upon the evidence, under competent instructions as to the nature and degrees...