Harding v. State

• Decision Date: 01 May 1924
• Docket Number: Criminal 561
• Citation: 26 Ariz. 334,225 P. 482
• Parties: GEORGE W. HARDING, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

225 P. 482

26 Ariz. 334

GEORGE W. HARDING, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 561

Supreme Court of Arizona

May 1, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Standford, Judge. Affirmed.

Mr Carl Davis and Mr. J. C. Niles, for Appellant.

Mr John W. Murphy, Attorney General, Mr. A. R. Lynch, Mr. Earl Anderson, and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

OPINION

ROSS, J.

George W. Harding, the appellant, appeals from a judgment of conviction of involuntary manslaughter.

The essential and material facts are: Appellant, a police officer of the city of Phoenix, was on duty the night of September 10, 1922, and while at the intersection of Hadley Street and South Central Avenue in said city, at about 11:30 o'clock, he saw a stripped Ford automobile traveling from the south along Central Avenue in a reckless manner, zigzagging from one side of the avenue to the other the occupants shouting. When the automobile was something like a block from appellant he began signaling the occupants with a flash light, to stop, but this seemed to have no effect. He then took two steps into the avenue from the curb line, still signaling them to stop, but they came on and, when within thirty or forty feet of appellant, turned their lights right towards him. Appellant shouted "halt" a couple times, and thinking they would run over him, jumped back on to the curb. They went on. After proceeding northerly along Central Avenue to the track of the Arizona Eastern Railroad, the auto turned around and came down the avenue zigzagging from one side thereof to the other, and traveling in a reckless way. When appellant saw them coming he again stepped into the avenue and signaled them to stop and, as before, they turned the lights towards appellant and passed very close to him. After they had passed, he, using his own words, "fired at the left hind casing of this stripped-down Ford."

The occupants of the car were Ray Colvin, who was driving it, and Liebourne Goree, who occupied the seat beside Ray. The appellant's aim was poor, or else the bullet hit the cement pavement and ricocheted into the body of Ray -- most likely the latter as the bullet ranged upward from where it entered his back. Ray Colvin died the next day, as the result of this gunshot wound.

The description of the conduct of the occupants of the Ford car, and of what appellant did, is as the appellant himself told it, as a witness in his own behalf, and, of course, is as favorable to him as it can be stated. The testimony of the witnesses for the prosecution showing, or tending to show, facts at variance with appellant's statement are not set out.

The evidence showed deceased and his companion had had a drink, or some drinks, and were more or less intoxicated. The speed at which they were travelling was variously estimated to be from 15 to 40 miles per hour.

There are five assignments of error. The first is to the giving of the following instruction:

"It was the duty of this officer, under the facts as disclosed to you, to arrest the deceased. It was not necessarily his duty to arrest him immediately. It was his duty, also, not to inflict bodily harm or death upon the deceased, in order to effect the arrest. It is better that Ray Colvin should escape arrest than to cause injury or death to be inflicted for a misdemeanor."

The second is likewise to an instruction worded as follows:

"Gentlemen of the jury, if you believe, beyond a reasonable doubt, that on or about the 10th day of September, 1922, in this county and state, that the defendant did shoot and kill the deceased, Ray Colvin, in the manner and form referred to in this indictment which I have read to you, you should return a verdict of guilty of the crime of manslaughter; and unless you do so believe beyond a reasonable doubt, you should return a verdict of not guilty."

Third, fourth and fifth assignments are that the verdict and judgment are not sustained by the law nor the evidence. We will consider these assignments in the order above given.

It is quite clear that the question to be determined involves the power and right of a peace officer to make arrests. Phoenix being an incorporated city, the speed limit therein, where the territory is closely built, is 10 miles, and elsewhere 15 miles per hour. Paragraph 5134, Civil Code 1913. And since the deceased was exceeding these limits, he was guilty of a misdemeanor. Also, if he was intoxicated, he was guilty of a misdemeanor. Id.

Under section 854 of the Penal Code, a peace officer is authorized, either with or without a warrant, to make arrests of persons committing, or attempting to commit, a public offense in his presence. Since the deceased was, at the time appellant shot him, actually committing a misdemeanor, the appellant under the law had a right to arrest him, but the question is, did he, under the facts, have a right to shoot him? It must be admitted that there is a wide difference between the right to arrest a misdemeanant and to kill him. In Willie v. State, 19 Ariz. 346, L.R.A. 1918D, 373, 170 P. 869, we quoted with approval, from Petrie v. Cartwright, 114 Ky. 103, 102 Am. St. Rep. 274, 59 L.R.A. 720, 70 S.W. 297, the following language:

"The notion that a peace officer may, in all cases, shoot one who flees from him when about to be arrested is unfounded. Officers have no such power, except in cases of felony, and there as a last resort, after all other means have failed. It is never allowed where the offense is only a misdemeanor."

This is practically the universal rule. 5 C.J. 426, section 62, states it thus:

"Except in self-defense, an officer has no right to proceed to the extremity of shedding blood in arresting, or in preventing the escape of one whom he has arrested, for an offense less than felony, even though the offender cannot be taken otherwise, a distinction being recognized in this respect between arrests for misdemeanors and arrests for felonies."

In State v. Sigman, 106 N.C. 728, 11 S.E. 520, it is said:

"An officer who kills a person charged with a misdemeanor, while fleeing from him, is guilty of manslaughter, at least."

The reason for limiting the powers of a peace officer in making an arrest of a person committing, or attempting to commit, a public offense of the grade of misdemeanor in his presence is that organized society will suffer less by the temporary escape of such person than it would if the officer should be permitted to take his life, or inflict upon him great bodily harm, to prevent his escape. Most of the acts graded as misdemeanors have no element of moral turpitude, and are offenses simply because the public policy, through the law-making body, has so decreed. But even when the act is malum in se, and is graded as a misdemeanor, it is not thought to deserve death at the hands of an arresting officer simply because the offender seeks to avoid arrest by running away. When the offense is bad simply because prohibited, much less should the officer assume to take the offender's life if he disregards orders, and fails to stop when commanded to do so, but keeps on going. Persons charged with petty offenses do not usually run very far nor hide out very long, and if they do not later seek the officer, and surrender to him, it is ordinarily easy enough for the officer to find them and arrest them without bloodshed. But, whether such offenders are ever arrested or not, no peace officer has any right to shoot them because they do not halt when told to do so -- "the theory of the law being that it is better that a misdemeanant escape than that human life be taken." United States v. Clark (C.C.), 31 F. 710. In Thomas v. Kinkead, 55 Ark. 502, 29 Am. St. Rep. 68, 15 L.R.A. 558, 18 S.W. 854, the court was considering the power of a peace officer to rearrest an escaped misdemeanant, and concluded that it was the same and no greater than in making an original arrest. In arguing the question, the...