Fleetwood v. Commonwealth
| Decision Date | 05 January 1882 |
| Citation | 80 Ky. 1,3 Ky.L.Rptr. 497 |
| Parties | Fleetwood v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
1. A peace officer has the right to arrest one who is committing a breach of the peace in his presence, and to use such force as is necessary to make it; and if the person so disturbing the peace knows that the person attempting the arrest is an officer, and kills him, it is murder; if he does not know the fact, it is manslaughter.
APPEAL FROM SCOTT CIRCUIT COURT.
W. C P. BRECKINRIDGE FOR APPELLANT.
No brief.
P. W HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
No brief.
The instructions given by the Circuit Court are, by order of the Court of Appeals, reported.
INSTRUCTIONS GIVEN BY THE COURT.
1st Constables are peace officers, and it is their right and duty to arrest, with or without a warrant, any person who has committed any public offense in their presence, or who is at the time engaged in, or about to commit, any breach of the peace; and they have the right, in making such arrest, to use such force as is necessary therefor, and to summon to their aid a posse sufficient to accomplish such arrest. A breach of the peace is a public offense, and it may be committed by any loud and boisterous language calculated to disturb the good order of the persons there assembled, or by the drawing or brandishing of deadly weapons, accompanied by threats to attack or kill another then and there present.
2d. If the defendant willfully and intentionally shot and killed Joseph Mefford, in Scott county, before the finding of the indictment, and said shooting was done in resistance of, or with the intent to prevent, an arrest of the defendant by said Mefford, under the circumstances supposed in the first instruction, then they ought to find the defendant guilty guilty of murder, if, at the time of such killing, the defendant had knowledge or notice of the official position of the deceased: guilty of voluntary manslaughter, if he had not such knowledge or notice.
3d. If the jury find the defendant guilty of murder, they should fix his punishment at death, or confinement in the penitentiary for life, in their discretion. If they find him guilty of voluntary manslaughter, they should fix his punishment at confinement in the penitentiary for not less than two nor more than twenty-one years.
4th. Unless the defendant is proven guilty, beyond every reasonable doubt, the jury should acquit him. If they find him guilty, but have a reasonable doubt as to the grade of the offense, they should find him guilty of voluntary manslaughter.
5th. If, at the time of the killing, the deceased was a constable of Scott county, and was engaged in endeavoring to arrest the defendant for a public offense committed in his presence, or for the purpose of preserving the peace, which the defendant had broken in the presence of the deceased, or was about to break in his presence, then it was the duty of the defendant to submit to said arrest, and he had no right to make resistance thereto; and if, in resisting such arrest, or to prevent its execution, the defendant willfully and intentionally shot and killed said Mefford, then he is guilty: guilty of murder, if, at the time, he knew or had notice that the deceased was a constable of Scott county: guilty of voluntary manslaughter, if he did not have knowledge or notice of said fact.
6th. Unless they find that the defendant shot and killed Mefford, as supposed in first, second, or fifth instructions, they should acquit him.
7th. To justify Mefford in attempting to arrest the defendant without a warrant, he (the defendant) must have first committed a public offense in his presence, or the defendant must have been, at the time of the attempted arrest (if there was such), disturbing the peace and good order...
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