Keyes v. Commonwealth

• Decision Date: 30 November 1937
• Citation: 272 Ky. 628,114 S.W.2d 742
• Parties: KEYES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

114 S.W.2d 742

272 Ky. 628

KEYES v. COMMONWEALTH.

Court of Appeals of Kentucky

November 30, 1937

As Modified March 25, 1938.

Appeal from Circuit Court, Harlan County.

C. C Keyes was convicted in a prosecution charging him with murder or manslaughter in aiding and abetting in the commission of a homicide, and he appeals.

Reversed.

J. B Snyder, of Harlan, for appellant.

Hubert Meredith, Atty. Gen., J. M. Campbell, Asst. Atty. Gen., and R. S. Rose, and H. H. Fuson, both of Harlan, for the Commonwealth.

STANLEY Commissioner.

On the joint trial of Estill Giles and C. C. Keyes, policemen of Harlan, they were convicted of voluntary manslaughter and sentenced to 21 years in the penitentiary. The judgment was reversed because of error in granting a change of venue and in instructing the jury. Giles and Keyes v. Com., 266 Ky. 475, 99 S.W.(2d) 455. At the second trial, a severance being demanded, the Commonwealth elected to first try Keyes as an aider and abettor instead of Giles, as the principal. He was convicted and sentenced to 18 years' imprisonment. The facts are stated in the first opinion. The Attorney General, with commendable candor, concedes error in the instructions. While employed counsel contend otherwise, their argument is not convincing.

On the first trial there was some testimony tending to show that Keyes fired the shot that killed Cornett, but on this trial there was no contradiction of Giles that his pistol was discharged during a scuffle with the decedent. The first and second instructions covered the issues of whether the defendant was guilty of murder or voluntary manslaughter in aiding and abetting Giles. The third instruction was as to a reasonable doubt of the degree of the crime. The fourth instruction covered the right of the defendant and Giles to defend themselves and each other, and the duty of the jury if they should find the homicide was committed in doing so. But there was added this qualification: "Unless you shall further believe from the evidence beyond a reasonable doubt that the defendant, C. C. Keyes, first began the difficulty by attempting to arrest the deceased, Tom Cornett, at a time when Tom Cornett was not drunk or so under the influence of intoxicating beverages as to be perceptibly influenced thereby, or by assaulting him and attempting to take and retain him in custody at a time when the deceased was not guilty of such boisterous conduct or drunkenness as defined herein as was calculated to disturb the public peace in the presence of the defendant, Keyes, then in that event you cannot acquit the defendant on the ground of self-defense, or apparent necessity therefor, or the defense of another, or apparent necessity therefor."

The theory of the Commonwealth in this prosecution apparently is that the arrest or attempted arrest of Cornett was illegal because he had not committed a public offense in the presence of the officer. We are not unmindful of the right of a citizen to protect his liberty and to resist any unlawful restraint. But that right of resistance does not extend to a physical combat with a known peace officer after an arrest has been made. To permit that would be to permit every person arrested to judge for himself then and there, not the official power vested in the officer, but whether he had in fact and in law committed an offense authorizing the exercise of that power. For such an illegal arrest the party has the remedy of habeas corpus and an action for false imprisonment. But two wrongs do not make a right, and if the officer acts in bad faith he cannot escape the consequences if the person arrested does resist.

In Creighton v. Com., 83 Ky. 142, 4 Am.St.Rep. 143, the defendant had killed a man acting as a town marshal, who attempted to arrest him to prevent his committing a breach of the peace. The defense was that the deceased had no right to arrest him for the reason that he was not about to commit an offense; and, secondly, that the deceased was not a town marshal and therefore had no right or power to arrest him. It was claimed that the deceased assaulted the accused and in resisting an assault had used no more force than was necessary to protect his own person from bodily harm. It is stated in the opinion: "If the deceased was town marshal the appellant had no right to resist the arrest, but should have allowed himself to be taken charge of by the officer, and made his defense before the justice instead of taking the law into his own hands."

On the second proposition it was held that the judge and not the jury should have determined whether the facts constituted the deceased a peace officer. Upon the second appeal, it having been determined that the deceased was not a peace officer, the question of the right of the accused to resist the unlawful arrest and the extent to which that resistance could be carried were considered and the instruction on that right was approved. Creighton v. Com., 84 Ky. 103, 4 Am.St. Rep. 193. See, also, Dale v. Com., 186 Ky. 510, 217 S.W. 363; Smith v. Com., 196 Ky. 479, 244 S.W. 878. In no event is one resisting an unauthorized arrest justified in killing the officer. Howard v. Commonwealth, 246 Ky. 738, 56 S.W.2d 362.

In the instant case there is no question as to either Giles or Keyes being a peace officer, and the evidence shows that they had arrested Cornett--whether rightfully or wrongfully is beside the point in the matter of their right to defend themselves in their character as individuals or as officers if they acted in good faith and Keyes was not using his authority as a pretext to cover personal or individual action as some little evidence might indicate. It was therefore error thus to qualify this right of defense by instructing that the defendant was deprived of it if he had arrested or attempted to arrest the deceased without authority of law. As stated in 4 Am.Jur. 56, an officer is of necessity the aggressor, and "must press forward and accomplish his object." Therefore, the rule that to be entitled to invoke the right of self-defense a person must not be the aggressor is not applicable. Otherwise an officer could not properly perform his duty. He is not an aggressor in the sense in which that term is used in encounters between private citizens. 30 C.J. 76; Jett v. State, 151 Ark. 439, 236 S.W. 621; Ex parte Warsham, 203 Ala. 534, 84 So. 889.

The evidence is that the real resistance and anger of Cornett was directed toward Keyes, whom he had tripped to the ground and was attacking, telling Giles to turn him loose so he could kill Keyes. Giles was endeavoring to protect Keyes and at the same time overcome Cornett's resistance to arrest.

Upon another trial in lieu of the fourth instruction the following may be given: No. 5. Although you may believe from the evidence beyond a reasonable doubt that C. F. Giles shot and killed Tom Cornett, and that the defendant, Keyes, was then and there present aiding, abetting, and advising the said Giles to shoot and kill Cornett (if you believe beyond a...