Head v. Martin

• Decision Date: 31 March 1887
• Citation: 85 Ky. 480
• Parties: Head v. Martin.
• Court: Kentucky Court of Appeals

85 Ky. 480

Head v. Martin.

Court of Appeals of Kentucky.

March 31, 1887.

APPEAL FROM OLDHAM CIRCUIT COURT.

CARROLL & BARBOUR FOR APPELLANT.

BEN. S. ROBBINS ON SAME SIDE.

IRA JULIAN FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

The single question presented is, whether a peace officer may, in order to arrest one upon a warrant for bastardy, or to prevent his escape after arrest, kill him when fleeing. If he has the right under such circumstances to shoot and wound him, as was done in this instance, then it necessarily follows that he can not be held responsible if it results in death.

It is attempted to draw a distinction between a case where one is attempting to avoid arrest, and where one is endeavoring to escape after arrest. If, however, the offender is in flight, and is not at the time resisting the officer, then the law is the same, whether he be fleeing to avoid arrest or to escape from custody. (2 Bishop on Criminal Law, section 664; Wharton on Homicide, sections 212-214.) The averments of the answer, admitted by the demurrer, show that the appellee, Martin, had in fact been arrested by the appellant, Head, as deputy sheriff, and was shot by the latter when fleeing from his custody; but the fact that an arrest had been made does not alter the law of the case.

A bastardy proceeding is, under our law, a civil one. Yet it proceeds in the name of the Commonwealth, and under the statute the offender is subject to arrest. As to the question now before us, it is, therefore, to be regarded in the same light as a misdemeanor.

Our statute is silent, unless it may be regarded as speaking by implication, as to the force an officer may use in effecting an arrest, or in recapturing a prisoner. It merely provides, that "no unnecessary force or violence shall be used in making the arrest."

We, therefore, turn to the common law for guidance. By it an officer in a case of felony may use such force as is necessary to capture the felon, even to killing him when in flight. In the case of a misdemeanor, however, the rule is different. It is his duty to make the arrest; he may summon a posse, and may defend himself, if resisted, even to the taking of life; but when the offender is not resisting, but fleeing, he has no right to kill. Human life is too sacred to admit of a more severe rule. Officers of the law are properly clothed with its sanctity; they represent its majesty, and must be properly protected; but to permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity, be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse, and take the offender.

The reason for this distinction is obvious. The security of person and property is not endangered by a petty offender being at large, as in the case of a felon. The very being of society and government requires the speedy arrest and punishment of the latter.

Bishop says: "The justification of homicide happening in the arrest of persons charged with misdemeanors, or breaches of the peace, is subject to a different rule from that which we have been laying down in respect to cases of felony; for, generally speaking, in misdemeanors it will be murder to kill the party accused for flying from the arrest, though he can not otherwise be overtaken, and though there be a warrant to apprehend him; but under circumstances, it may amount only to manslaughter, if it appear that death was not intended. * * * *

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