Creighton v. Commonwealth

• Decision Date: 11 June 1885
• Citation: 83 Ky. 142,7 Ky.L.Rptr. 70
• Parties: Creighton v. Commonwealth.
• Court: Kentucky Court of Appeals

83 Ky. 142

7 Ky.L.Rptr. 70

Creighton v. Commonwealth.

Court of Appeals of Kentucky.

June 11, 1885

WAPPEAL FROM SCOTT CIRCUIT COURT.

A. H WARD FOR APPELLANT.

1. The deceased was not marshal, either de jure or de facto, at the time he was killed. (Acts 1879, volume 2 page 996; General Statutes, pages 683, 809, 811.)

2. As to rights and liabilities of officers de facto and de jure. (Rodman v. Harcourt, etc., 4 B Mon., 224; Morgan v. Vance, 4 Bush, 323; Alsop v. Commonwealth, 4 Ky. Law Rep., 547; Mockabee v. Commonwealth, 78 Ky. 380; York v. Commonwealth, 6 Ky. Law Rep., 334; Fleetwood v. Commonwealth, 80 Ky. 1; Wharton's Criminal Law, vol. 1, pages 416-18; Criminal Code, sections 26, 35, 36, 37, 39, 42, 43, 46; Hoglan v. Carpenter, 4 Bush, 89; Biggerstaff v. Commonwealth, 11 Bush, 169.)

P. W. HARDIN, ATTORNEY-GENERAL, FOR APPELLEE.

The deceased was a de facto officer acting in good faith, and his act of arrest was binding as between appellant and appellee. (Morgan v. Vance, 4 Bush, 326; Patterson v. Miller, 2 Met., 496; Stokes v. Kirkpatrick, 1 Met., 143; Alsop v. Commonwealth, 4 Ky. Law Rep., 551.)

OPINION

PRYOR JUDGE:

The appellant, James Creighton, was indicted, tried and convicted of manslaughter, for the killing of one Ambrose Wilson, and sentenced to confinement in the State prison for twenty-one years.

The defense claimed that the deceased assaulted the accused, and the latter, in resisting the assault, used no more force than was necessary to protect his own person from bodily harm. The prosecution attempted to prove that the deceased, Wilson, at the time he was shot, was the town marshal of Sadieville, and, as such, had the right to arrest and take charge of the person of the accused, who, in the opinion of the officer, was about to commit a breach of the peace. The attempt to make the arrest brought on the altercation, both parties shooting at each other, the deceased losing his life by a shot from the pistol in the hands of the accused.

The appellant denied that the deceased had the right to arrest him for the reason, in the first place, that he was not about to commit a breach of the peace; and, secondly, that the deceased was not town marshal, and, therefore, had no right or power to arrest him.

If the deceased was town marshal the appellant had no right to resist the arrest, but should have allowed himself to be taken charge of by the officer, and made his defense before the justice instead of taking the law into his own hands; and if the deceased was not an officer de facto or de jure, the accused had no right to use more force than was necessary to protect himself from the assault of the deceased, and certainly no right to take the life of the deceased, unless it was necessary to save his own life or his person from great bodily harm. The defense had the undoubted right to show that the deceased, in attempting to arrest him, was acting without any authority; and that being a fact in issue, the court should have determined the question, and not the jury, as to the right of the deceased to make the arrest. Whether the facts constituted the deceased a peace officer was with the judge and not the jury; and if there had been sufficient evidence of the right of the deceased to act as an officer of the town, then if, when acting in the discharge of his duties, he was shot and killed by the accused for the purpose of preventing the arrest, the latter knowing him to have been a peace officer, or having reasonable grounds to believe that he was, subjected himself to the severest penalty known to the law.

The trouble arising in this case springs from the objection made by the defense, that no instruction should have been given by which the right of the accused to resist the arrest was, or might have been, excluded from the consideration of the jury.

It appears from parol testimony that the deceased had been elected marshal of the town, but that he failed to qualify, or to attempt to qualify, as such in the mode provided by law.

Deputy marshals were sometimes appointed without any authority under the charter of the town, and the deceased was sworn in, at one time upon the street, to act as marshal for one week, or for a shorter time. The deceased seems to have been recognized as marshal of the town, and on these facts it is argued that he was an officer de facto, although not an officer de jure, and had the right to arrest the accused.

By section 10 of chapter 81, General Statutes, " no officer, from whom a covenant is required, shall enter upon the duties of his office until the same is given; " and by section 12, of the same chapter, it is provided that: " If the official bond is not given, and the oath of office taken, within thirty days of the time when the officer was elected, or received notice of his appointment, or of the time when his appointment ought to take effect, the office shall be considered vacant, and he shall not be re-eligible thereto for two years."

There was no warrant or authority from any justice or conservator of the peace commanding the...