Durham v. State

• Decision Date: 23 December 1927
• Docket Number: 25,179
• Citation: 159 N.E. 145,199 Ind. 567
• Parties: Durham v. State of Indiana
• Court: Indiana Supreme Court

159 N.E. 145

199 Ind. 567

Durham v. State of Indiana

No. 25,179

Supreme Court of Indiana

December 23, 1927

1. HOMICIDE.---Instruction defining assault and battery held erroneous.---In charging the offense of assault and battery with intent to kill, it must be alleged that the assault and battery was unlawful, under 2419 Burns 1926, and in a prosecution on such charge, an instruction which attempted to define the offense of assault and battery, but which omitted that element of the offense, was erroneous, especially when the defendant was a peace officer. p. 572.

2. CRIMINAL LAW.---In prosecution of game warden for assault and battery with intent to kill, instruction held prejudicial error.---In a prosecution of a game warden for assault and battery with intent to kill, the charge being based on his act while attempting to arrest violators of the fish and game laws, an instruction attempting to define assault and battery, but which omitted any reference to the unlawfulness of the act, was prejudicial error, where the defendant was convicted of that offense, as he was a peace officer with power to arrest without a warrant for violations of the law within his view (4755 Burns 1926), and aggressive acts in making such arrest might be lawful which would be unlawful if performed by a private individual. p. 572.

3. CRIMINAL LAW.---Instruction on self-defense held erroneous in prosecution of game warden for shooting person resisting arrest.---In a prosecution of a game warden for assault and battery with intent to kill, the charge arising from his shooting a man whom he was arresting for violating the fish and game laws, an instruction on the right of self-defense which was correct as an abstract proposition of law, was erroneous because it did not go further and state his rights as an arresting peace officer, p. 572.

4. CRIMINAL LAW.---Instruction as to right of officer to use force in making arrest for misdemeanor held erroneous.---In a prosecution of a game warden for assault and battery with intent to kill, based on the act of the officer in shooting a man who was resisting arrest for violation of the fish and game laws, an instruction that the officer would not be authorized to use force and instrumentalities which would imperil the life of the party resisting arrest and would be guilty of assault and battery at least if he used a dangerous weapon and inflicted wounds was erroneous, in view of 2159 Burns 1926, authorizing an officer to use "all necessary means" to effect an arrest. p. 573.

5. ARREST.---Force that may be used by officer in arresting misdemeanant.---An officer, having the right to arrest one guilty of a misdemeanor, may use all the force that is reasonably necessary to acplish the arrest, excepting that he may not kill him or inflict great bodily harm endangering his life when he is fleeing. He may also overcome resistance with such force, short of taking life, as is necessary to effect the arrest, and, in order to prevent the misdemeanant from seriously wounding or killing him, he may take his life. p 574.

6. CRIMINAL LAW.---Instruction as to right of officer to use force to overcome resistance when making arrest held bad for not defining arrest.---In a prosecution of a game warden for shooting one whom he was arresting for a viotation of the fish and game laws (a misdemeanor), an instruction that the officer would not be authorized to use force and instrumentalities which would endanger the life of the misde- meanant in order to overcome resistance to the arrest, was bad for the reason that it failed to define what constitutes an arrest. p. 578.

7. CRIMINAL LAW.---Instruction that defendant, a game warden, in making an arrest should have stated that he was a deputy game warden and that he was making arrest as such, held erroneous.---In a prosecution of a game warden for shooting one whom he was arresting for a violation of the fish and game laws, an instruction that the defendant should have stated to the accused that he was a deputy game warden, and was making the arrest as such, was erroneous, where the evidence showed that the defendant had notified him that he was an "officer." p. 578.

From Kosciusko Circuit Court; Lemuel W. Royse, Judge.

James A. Durham was convicted of assault and battery, and he appeals.

Reversed.

J Edward Headley, for appellant.

Arthur L. Gilliom, Attorney-General, for the State.

OPINION

Martin, J.

Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.

The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of $ 700 was returned, judgment was rendered on the verdict.

Alleged errors, assigned as reasons in support of appellant's motion for a new trial, which was overruled, include the giving of three instructions on the court's own motion and in refusing to give a number of instructions requested by appellant.

The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up; that appellant ran up to him, put his hand up toward him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion both pushed the boat out in the water with oars or paddles. That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened "a few times." That appellant said, "Lay down that oar," "Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice, the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, that appellant then "snapped the gun at me, but it didn't go off" and that Long finally jerked the chain away from him and escaped.

The appellant testified that when Long stepped out on the shore, he stepped from behind some bushes, approached and said, "You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, "Hand me the boat oar and I will brain the son of a bitch." That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, "If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you." That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the chest. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he was exhausted and had to let loose of the chain and let them go.

Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was not harmed by this instruction. He was actually found guilty of the degree of offense which the court had erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. § 2419 ...