Durham v. State
| Decision Date | 23 December 1927 |
| Docket Number | No. 25179.,25179. |
| Citation | 159 N.E. 145,199 Ind. 567 |
| Parties | DURHAM v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Kosciusko Circuit Court; Lemuel W. Royse, Judge.
James A. Durham was convicted of assault and battery, and he appeals. Reversed, with directions.
J. Edward Headley, of Warsaw, for appellant.
Arthur L. Gilliom, Atty. Gen., for the State.
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 armpits 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, (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.
[1][2] Instruction 8, given by the court, was incorrect and erroneous, and appellee in its brief on confession of errors admits this, and says:
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. Section 2419, Burns' 1926; Cranor v. State (1872) 39 Ind. 64. The failure of the court in instruction 8 to state this element of the offense was particularly prejudicial to this appellant's rights, because the nature of his duties as a peace officer (section 4755, Burns' 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.
[3] Instruction 15 was to the effect that, before a defendant can exercise the right of self–defense, he must be free from fault, and that, if by his own unauthorized acts he brought the assault upon himself, then he cannot claim the right of self–defense against such assault. This instruction as an abstract proposition of law is correct, but in the instant case, where the defendant was an officer of the law, engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self–defense by an arresting officer. The usual rules of the law as to self–defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection, because he must of necessity press forward and accomplish his object (2 R. C. L. 474), and in such a case the officer is entitled to have the jury so instructed (Loveless v. Hardy [1918] 201 Ala. 605, 79 So. 37). The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not under any theory of law be considered as “his own unauthorized act,” but, on the contrary, were acts expressly required of him by the law.
[4] Instruction 12 was to the effect that, if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistence; that human life is too precious to be imperiled by the arrest of one who is only guilty of a misdemeanor; that, if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone, or considered in conjunction with instruction 15 and the other instructions, did not correctly state the law, and the court erred in giving it.
[5] Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that:
“The defendant shall not be subject to any more restraint than is necessary for his arrest and detention.” Section 2157, Burns' 1926.
“If, after notice of the intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest.” Section 2159, Burns' 1926.
In Plummer v. State (1893) 135 Ind. 308, 34 N. E. 968, the court said:
The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L. 473; 2 Brill, Cyc. Crim. Law, §§ 692, 713; Laning, Arrest and Prosecution, p. 508; Clark and Marshall, Law of Crimes (2d Ed.) § 271; notes in 3 A. L. R. 1170–1177, and in 42 A. L. R. 1200–1204.
The general rules deduced therefrom may be stated to be: (a) That an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except (b) that he may not, merely for the purpose of effecting the arrest, kill or inflict great bodily harm, endangering the life of the misdemeanant.1 Thus...
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