Kennedy v. State

• Decision Date: 13 April 1886
• Citation: 6 N.E. 305,107 Ind. 144
• Parties: Kennedy v. State.
• Court: Indiana Supreme Court

107 Ind. 144

6 N.E. 305

Kennedy

v.State.¹

Supreme Court of Indiana.

April 13, 1886.

Appeal from Decatur circuit court.

Thomas & Spann and Moore & Marshall, for appellant.

The Attorney General and Miller & Gavin, for appellee.

Elliott, J.

On the first day of November, 1884, a political meeting was held in the city of Greensburg, and a great crowd of people gathered to hear the speaker, who addressed them from a carriage standing on one of the streets of the city. Pickpockets plied their vocation, crowding and jostling through the throng. There were at least four men engaged in picking pockets, and they acted in concert. The clerk of one of the hotels in Greensburg testifies that four men became guests of the hotel early on the morning of the first day of November, three of them taking rooms, and the other occupying a chair in the office. The appellant is identified by the hotel clerk as one of these persons, and a police officer of Cincinnati testifies that the appellant told him several days before the first day of November that he intended to be at the meeting in Greensburg on that day. Charles Wallace was called as a witness by the state, and declined to testify as to what occurred in the throng where the pockets were picked, but testified that when he was arrested Kennedy was with him, and was the person nearest to him at the time. The constable, Anderson, testified that he arrested Wallace, and at the time was struck on the head by the man nearest Wallace with a revolver, and felled to his knees. Quite a number of witnesses who had their pockets picked swore that they were jostled in the crowd by four men, and many of them testified that Kennedy was one of the four. David Baker, the man who was killed, as the state charges, by Kennedy, was in the throng not far from the carriage in which the speaker who made the address was standing. Some one attempted to pick Baker's pocket, and some one did pick the pocket of Mr. Slocum, standing near by, whereupon an alarm was raised that there were pickpockets at work in the crowd. The four men who were engaged in the work of picking pockets then made their way out of the throng, and were followed by the deceased and Henry Woodfill. These two men, Baker and Woodfill, followed the men whom they supposed to be pickpockets for some distance, but ceased pursuit for a little time. They resumed it, however, after arming themselves with revolvers, and were joined by the constable, Anderson, and perhaps others. After the constable had seized Wallace, the man who was with him fled, and was pursued by Baker and other citizens. In the course of the pursuit one or more shots were fired by the pursuers, and a shot was fired by the pursued, which killed Baker almost instantly. Many persons joined in the chase, and, prior to any shooting, the men followed by the constable and those with him were commanded to halt, and, according to many of the witnesses outcries of “Catch them,” “Halt,” “They are thieves,” or similar cries, were made by persons on the street.

The trial court permitted the state to prove by several persons that their pockets were picked in the crowd gathered about the speaker on the evening of November 1st. In this there was no error. There was evidence clearly tending to identify the appellant as one of the gang of robbers who were plundering the people. Several witnesses identify him by his personal appearance and his dress; several quite positively identify Charles Wallace as one of the gang. Wallace himself swears that Kennedy was with him at the time of his arrest, a few minutes after the robberies were committed; and many other witnesses declare that Kennedy is the man who struck the constable while arresting Wallace, and shot Baker. It was therefore perfectly proper for the court to permit the evidence to go to the jury, for it is quite well settled that, where there is any positive circumstantial evidence connecting a party with a material and relevant occurrence, it is proper to submit evidence of that occurrence to the triers of the fact. The evidence that robberies had been committed was relevant and material, and so was evidence connecting Kennedy with those felonies. If Kennedy was one of the four engaged in picking pockets, then the constable, and, indeed, the citizens Baker and Woodfill, had a right to arrest him upon fresh pursuit, without a warrant. In this instance the evidence is strong against the accused, for here an attempt was made to pick the pocket of Baker; that of Slocum was picked near by; and Woodfill, who joined Baker in the pursuit, had also been robbed; so that these men not only had a right to arrest the felons, but it was their duty to do so under the long-settled rule thus stated in one of the old books: “All persons whatsoever who are present when a felony is committed, or a dangerous wound given, are obliged to apprehend the offender; otherwise they are liable to be fined and imprisoned for the neglect.” Law of Arrest, 200; 1 Chit. Crim. Law, par. 716; 1 Bish. Crim. Proc. §§ 164, 165. As a citizen who sees a felony committed has a right to apprehend the felon, the wrong-doer is guilty of murder if he slays him while engaged in the exercise of that right. It is therefore competent to prove the commission of a distinct felony, if witnessed by a citizen, for the purpose of showing that the citizen was engaged in the performance of his duty when slain by the felon. Here, too, we have another element making strongly against the accused, for here the officer whose sworn duty it was to arrest and bring the offender to justice was, with the citizen who lost his life, in pursuit of the criminal, and that officer had been struck with a weapon while engaged in the performance of his duty. A stronger case for the application of the rule can scarcely be imagined.

It is not necessary that an offender whom a citizen undertakes to arrest should be connected with the felony by direct evidence. It is sufficient if the evidence supplied by circumstances establishes this connection; and in this instance we have both kinds of evidence, strongly, if not conclusively, connecting Kennedy with all the felonies that were committed. With many of them he was connected by direct evidence, and the circumstances fully justify the inference that he was connected with them all. No other party of men except the one with which he was connected is shown to have acted as that party did act, and the just inference is that the members of that party committed all of the felonies. At all...