City of Princeton ex rel. Barber v. Fidelity & Cas. Co. of New York
| Decision Date | 08 December 1936 |
| Docket Number | 8429. |
| Citation | 188 S.E. 757,118 W.Va. 89 |
| Parties | CITY OF PRINCETON ex rel. v. FIDELITY & CASUALTY CO. OF NEW YORK et al. BARBER |
| Court | West Virginia Supreme Court |
Submitted September 29,1936.
Syllabus by the Court.
An officer may not wound or kill a fleeing misdemeanant to effect his arrest or prevent his escape; and under the common-law rule, permitting an arresting officer to use force to prevent the escape of a felon, the necessity of the means employed by the officer is, ordinarily, to be determined by the jury from the facts and circumstances of the case.
Error to Circuit Court, Mercer County.
Action by the City of Princeton, on the relation of Ethel Barber administratrix, against the Fidelity & Casualty Company of New York and another. To review a judgment for plaintiff defendants bring error.
Affirmed.
Hartley Sanders and Walter G. Burton, both of Princeton, and French & Easley, of Bluefield, for plaintiffs in error.
Martin & Martin, of Princeton, and Clay S. Crouse, of Beckley, for defendant in error.
This is an action on a pistol bond for wrongful death. Judgment was entered upon the verdict of a jury for $1,750 in favor of the plaintiff, City of Princeton, which sues for the use and benefit of and at the relation of Ethel Barber, as administratrix of Woodrow Barber, deceased, against the defendants, the Fidelity and Casualty Company of New York and John Newkirk; and defendants prosecute error.
On February 4, 1935, defendants, John Newkirk, principal (as police officer of the City of Princeton), and the Fidelity and Casualty Company of New York, surety, signed and delivered a bond, under Code 1931, 61-7-5, in the penalty of $3,500, conditioned to pay all costs and damages to which any person may be entitled because of the improper, illegal, or negligent use by Newkirk of a pistol or other weapon. Newkirk and Kennith Richards, policemen of the City of Princeton, and C. C. Elmore and J. W. Munsey, constables of Mercer county arrested the deceased, Woodrow Barber, on a criminal warrant or warrants shortly after midnight of April 24, 1935, at his home in the City of Princeton after arousing him from bed. Soon after his arrest, while attempting to escape, Barber (then 17 or 18 years of age) was shot by Newkirk or Munsey, and died from the wound June 21st, following.
According to the testimony of the officers, the only eyewitnesses to the tragedy, the boy was about 50 yards away running up a street of the city when Newkirk and Munsey, standing 25 or 30 feet apart, each fired one shot; he was nearing a brushy swamp a lumber yard, and a railroad yard covered with many cars, and by continuing his course for about 50 yards would have been out of sight of the officers. The shots were fired after Munsey and Newkirk had pursued Woodrow a short distance, and when, according to their claim, they realized that they could not overtake him. One shot took effect, striking the deceased in the pit of the right arm. He immediately turned and came back to the officers. Dr. Gordon L. Todd, who treated the boy, testified that the bullet ranged upward, and expressed the opinion that it had struck and glanced from some object before reaching final lodgment in the right shoulder of deceased. Elmore, who held the warrant or warrants on which the arrest was made and who had previously arrested Woodrow for other law violations, testified that he summoned the other officers to assist him in making the arrest because the boy was prone to flee to escape arrest, later to be apprehended.
There are no assignments of technical error. The sole reliance for reversal is that the evidence does not support the verdict. The issues of fact developed in the evidence are (1) whether the arrest was made under a misdemeanor...
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