Gross v. State

• Decision Date: 01 November 1917
• Docket Number: 23,208
• Citation: 117 N.E. 562,186 Ind. 581
• Parties: Gross v. State of Indiana
• Court: Indiana Supreme Court

117 N.E. 562

186 Ind. 581

Gross v. State of Indiana

No. 23,208

Supreme Court of Indiana

November 1, 1917

From Lake Circuit Court; W C. McMahan, Judge.

Prosecution by the State of Indiana against Edward A. Gross. From a judgment of conviction, the defendant appeals.

Reversed.

McMahon & Conroy and Bruce & Youkey, for appellant.

Ele Stansbury, Attorney-General, U. S. Lesh, Elmer E. Hastings Edward M. White and John G. McCord, for the State.

OPINION

Myers, J.

Appellant was prosecuted upon an affidavit, for a misdemeanor--drawing a dangerous weapon on one James Orr. This appeal is from a judgment on a verdict of conviction by a jury. A motion for a new trial was overruled, and this ruling is the only error assigned. In support of this motion it is urged that the verdict is not sustained by the evidence, is contrary to law and that the trial court erred in giving to the jury instructions Nos. 3, 4, 5, 7, 8 and 11 and in refusing to give instruction No. 1 tendered by appellant.

On December 3, 1915, appellant was a justice of the peace and had his office or courtroom on the second floor of a building in the city of Gary, and was also proprietor of a wholesale liquor store located on the first floor of the same building. On the above date one Vincent Marovich was a defendant in an attachment and garnishment proceeding in appellant's court. On the evening of that day, and while appellant was in his wholesale place of business, Marovich entered and sought to have him release the money covered by the garnishee proceedings. A controversy arose between them and possibly some blows were struck. Appellant attempted to arrest Marovich, who then ran out of the room onto the street and appellant followed him with a quart bottle in his hand, apparently intending to strike Marovich. The threatened use of the bottle was within the presence and sight of J. H. Carlson, a plain clothes member of the Gary police force, who took hold of and stopped appellant and caused him to drop the bottle. They knew each other and the official position each held. There is evidence tending to show that Carlson at that time arrested appellant and also evidence to support a finding that no such arrest was made. It is conceded that no further attempt was made to arrest or take appellant into custody until probably twenty minutes after the occurrence on the street, and not until appellant had gone to his office and become engaged in a matter connected with his official duty. While he was thus engaged, Carlson and a Gary policeman entered appellant's office and without a warrant announced their purpose of taking him to the police station. Appellant demanded to see their authority for so doing, and declined to go with them unless they had a warrant for his arrest. A few minutes later other Gary policemen came, and then appellant took from his desk drawer a revolver, stepped back to the wall of the room, and ordered the policemen to depart therefrom, further saying that if they undertook to take him by force or to come nearer than a certain distance from him they would do so at their peril. During this parley between appellant and policemen, pistols were exhibited and threatened to be used on both sides. Finally the matter was compromised by the removal of the patrol wagon, which was standing in the street in front of the stairway leading to appellant's office, and the departure of all of the policemen except the captain, whom appellant accompanied to the police station.

Neither of the first two specifications of the motion can be sustained, for the reason that to do so would require us to determine the weight of conflicting evidence, involving the question of whether or not Carlson legally arrested appellant while on the street and, if so, Did he voluntarily release him from custody? Appellant insists that he was acting as a peace officer when Carlson interfered to the advantage of an offender who thereby escaped. True, justices of the peace in this State are conservators of the peace (§ 15, Art. 7, Constitution), and by statute they are authorized to arrest and detain any person found violating any law of this State until a legal warrant can be obtained. § 2013 Burns 1914, Acts 1905 p. 584, 616. But from the record before us it can hardly be said that Carlson had the purpose accredited to him by appellant. Carlson was a peace officer, and the demonstration of appellant in his attempt to arrest Marovich was in the presence and sight of Carlson, who assumed to and did act to prevent the overtaking of the third party. The propriety of the interfering officer's action, under all the circumstances in this case was a question for the jury. The jury must have found, and there is evidence to the effect that Carlson did arrest appellant while on the street, and that appellant, either by force or in some other manner, freed himself from custody. If the jury so found, then, as a matter of law, Carlson was authorized to pursue appellant and retake him into custody without having first procured a warrant for his arrest. §§ 2000, 2001 Burns 1914, Acts 1905 p. 584, 613. Cooper v. Adams (1830), 2 Blackf. 294; 1 Bishop, Crim. Proc. (2d ed.) § 163.

The general rule requires every citizen of this State to submit to a lawful arrest. The exceptions to this rule are stated in the Constitution of the United States, § 6, Art. 1, and the Constitution of this State, § 8, Art. 4, and § 12, Art. 2, but justices of the peace are not exempted by either of these provisions. However, by statute justices of the peace are privileged from arrest on civil process while engaged in hearing or determining a trial. § 3302 Burns 1914, § 2658 R. S. 1881.

In this case, the arrest, if any, was not upon civil process, and therefore appellant was in no better position to successfully resist arrest than any other citizen. But he, like any other citizen, had a right to resist an unlawful arrest (1 Bishop Crim. Proc. [2d ed.] § 162), but not to the extent of taking the life of the aggressor, as in case of a felonious assault, for, in the latter case life is in danger, while in the former liberty only, which may be secured by a resort to the laws. If appellant in his endeavor to arrest Marovich was unlawfully attempting to commit a violent injury...