Chandler v. Rutherford

• Decision Date: 16 April 1900
• Docket Number: 1,313.
• Citation: 101 F. 774
• Parties: CHANDLER v. RUTHERFORD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 774

CHANDLER v. RUTHERFORD et al.

No. 1,313.

United States Court of Appeals, Eighth Circuit.

April 16, 1900

This case was tried and determined below on demurrer to the complaint, which was adjudged insufficient to sustain a judgment. The first paragraph of the complaint, which was filed by James Chandler, the plaintiff in error, alleged, in substance, that Samuel M. Rutherford, one of the defendants in error, and one of the defendants below, was the duly appointed and acting United States marshal in and for the Northern district of the Indian Territory, and that the other defendants in error, to wit, George Sparks, John F. Williams Clarence W. Turner, Andrew W. Robb, Pleasant No. Blackstone and James D. Lankford, were sureties upon the official bond of said Samuel M. Rutherford as such United States marshal in and for the Northern district of the Indian Territory, a copy of which bond was attached to the complaint. The remaining material allegations of the complaint were as follows:

'The plaintiff says: That on or about the 8th day of August, 1895 said defendant Samuel M. Rutherford, United States marshal as aforesaid, had in his office in the town of Muskogee, in said Northern district of the Indian Territory, A. A. McDonald his duly appointed and acting chief deputy marshal, who was in the absence of said United States marshal from his office, fully authorized to act for and in the room and stead of said United States Marshal Rutherford, and to do and perform all the duties pertaining to the office of United States marshal. That on the day and date last aforesaid, in the absence of said defendant Samuel M. Rutherford, United States marshal as aforesaid, from his office in said town of Muskogee, complaint was made to his said chief deputy marshal, A. A. McDonald, at his office in said town of Muskogee, by Dave Purty, of said Northern district of the Indian Territory, of his having had some horses stolen from him by a man by the name of Flave Carter, and that said horse thief was then in the vicinity of said town of Muskogee; and thereupon said Chief Deputy Marshal A. A. McDonald, at the suggestion and request of James M. Givens, the assistant United States attorney in and for said Northern district of the Indian Territory, sought for Dave Adams, a duly appointed and acting deputy marshal in and for said Northern district, Indian Territory, and found him at his house in said town of Muskogee, and then and there made known to him that there was reasonable ground to believe that Flave Carver had committed the crime of 'horse larceny' (a high felony), and it was believed the horse thief, Flave Carter, was then in the vicinity of the town of Muskogee, and he, the said chief deputy marshal aforesaid, wanted said Deputy Marshal Adams to go with said Dave Purty and arrest said horse thief, Flave Carver; and said Chief Deputy Marshall A. A. McDonald then and there requested the said Deputy Marshal Adams to meet him and Purty on that evening at a storeroom next door to the post office in said town of Muskogee. After leaving the Deputy Marshal Adams' residence, and before the meeting at the store, said Chief Deputy Marshal A. A. McDonald furnished said Purty with a double-barrel shotgun, and also loaded shells, loaded with BB shot, or small-size buckshot; and then, on their meeting said Deputy Marshal Adams, about 8 o'clock on the evening of the same day, at said store next door to the post office, he said Deputy Marshal Adams, refused to go or to undertake to arrest the horse thief, Flave Carver, with no one but said Purty to go with him; and thereupon said Chief Deputy Marshal A. A. McDonald got Joseph N. Walker to get his gun, and go with said Deputy Marshal Adams and said Purty to arrest said horse thief, Flave Carver; and immediately thereafter, to wit, about 8 o'clock, on the evening of August 8, 1895, said Deputy Marshall Adams, with the said Walker and Purty, started from said store, which was on Main street in said town of Muskogee, to try to find and arrest said horse thief, Flave Carver. They went from said store up to the Missouri, Kansas & Texas Stockyards, in said town of Muskogee, and there the said Deputy Marshal Adams got two other posse men, namely, Joseph Hayes and Richard Brim, to go with him, and assist in finding and arresting said horse thief, Flave Carver. From said stock yards said Deputy Marshal Adams and then posse of four men started, and went on the west side of a switch of the Missouri, Kansas & Texas Railway Company, and when they had reached the north part of the said town of Muskogee they crossed from the west side to the east side of said switch, and just at that time, to wit, between 8 and 9 o'clock in the evening of the 8th day of August, 1895, the plaintiff was walking with a lady in the north end of Cherokee street, in said town of Muskogee, and while so walking the said Deputy Marshal Dave Adams and his posse of four men, all of whom were seeking the horse thief, Flave Carver, came up stealthily within some twenty or thirty steps of the plaintiff and the lady with whom he was walking, and, without making any proclamation of their character and their purpose, and without the exercise of reasonable diligence, or any diligence whatever, to ascertain whether or not the plaintiff was the horse thief, Flave Carver, they were seeking to arrest, some one of them simply called out 'Hey, there.' and the plaintiff and the lady stopped for a moment, and in answer to an inquiry made by the lady the plaintiff expressed it as his opinion that they were boys in the grass; and when the plaintiff and the lady had walked but a few steps further on the same call, 'Hey, there.' was made by some one of said deputy marshal's posse, and the plaintiff then stopped, and, as he was turning around, said deputy marshal, or his posse men, or some one of them, fired upon, shot, and severely wounded the plaintiff with leaden...