Lilly v. State of West Virginia
| Decision Date | 08 November 1928 |
| Docket Number | No. 2702.,2702. |
| Citation | 29 F.2d 61 |
| Parties | LILLY v. STATE OF WEST VIRGINIA. |
| Court | U.S. Court of Appeals — Fourth Circuit |
H. R. Gamble, Sp. Asst. Atty. Gen., and Armistead A. Lilly, of Charleston, W. Va. (James Damron, U. S. Atty., of Huntington, W. Va., Louis E. Graham, Chief Legal Adviser, Prohibition Administrator, Sixth District, of Beaver, Pa., and F. Horton Smith, Legal Adviser, Prohibition Administrator, Sixth District, of Pittsburgh, Pa., on the brief), for plaintiff in error.
Charles W. Ferguson, Pros. Atty. of Wayne County, W. Va., and W. Earl Burgess, both of Wayne, W. Va., for the State of West Virginia.
Before WADDILL and PARKER, Circuit Judges, and GRONER, District Judge.
Plaintiff in error, hereinafter called defendant, is a prohibition agent in the service of the federal government. While chasing an automobile which he had reasonable cause to believe was engaged in transporting intoxicating liquor in violation of the National Prohibition Act, the automobile which he was driving struck and killed a pedestrian at a street intersection in the outskirts of Huntington, W. Va. He was indicted for involuntary manslaughter, and the case was removed to the federal court. He was there convicted of the charge, and in this writ of error he asks that the conviction be reversed, particularly because of errors in the charge of the court and in the refusal to give certain instructions prayed as to the law governing the case.
There was evidence that, at the time the car driven by defendant struck the deceased, it was being driven at a speed of around 35 or 40 miles an hour. Defendant was trying to overtake a car, which from information received and observations made he had reasons to believe, and did believe, was the car of a notorious violator of the liquor laws, and was loaded with liquor at the time. This car was fleeing from him down Piedmont road in the outskirts of the city of Huntington. As defendant approached the intersection of Piedmont road and Vinson street, deceased, with his wife, attempted to cross Piedmont road. Defendant testified that he was sounding the siren attached to his car, and was keeping a careful lookout. Shortly before he reached the intersection he had to pass a furniture truck, which put him on the left side of the street. About this time he observed the deceased and his wife crossing the street, and applied his brakes, but it was impossible to stop the car in time to avoid striking deceased. There was testimony that the wife of the deceased went on across the street in safety and that deceased was struck because he became confused, and stopped, and then stepped forward in front of the car. Defendant testified that in the emergency created he attempted to drive between deceased and his wife so as to avoid striking either of them, and that he would have succeeded in doing so if deceased had not stepped forward after having stopped.
If defendant's evidence is believed, therefore, while driving rapidly in an effort to overtake an automobile loaded with liquor, he was sounding a siren as a warning of his approach, was keeping a careful lookout, and in a moment of unexpected danger did everything that he could to stop his car and avoid striking deceased.
The following ordinances of the city of Huntington were introduced in evidence, viz.:
"Section 334: Upon approaching any person walking in the traveled portion of any streets, avenues, road, alley or boulevard, or a horse, or any animal being led, ridden or driven thereon, or a crossing of intersecting streets, avenues, roads, alleys or boulevards, or a bridge or short turn, or a curve, or a descent and also in passing such person or such horse or other animal in traversing such crossing, bridge, turn, curve or descent, a person operating a motor vehicle or motor-cycle shall have the same under control and shall reduce its speed to a reasonable and proper rate if such horse or other animal being so led, ridden or driven, shall appear to be frightened," etc.
Defendant requested the court to give the jury the following instructions, which were refused, viz.:
"The court instructs the jury that if they believe from the evidence in this case that Mack B. Lilly was a federal prohibition officer at the time and occasion mentioned in the evidence, and that he was honestly and in good faith executing and attempting to perform a duty imposed upon him by the laws of the United States at the time of the accident, and in so doing, used reasonable care and diligence commensurate with his duty and the apparent danger, if any, then you will find him not guilty.
* * * * * * * * *
"The court further instructs the jury that, although they may believe from the evidence that the defendant, Lilly, just prior to and at the time of the accident resulting in the death of Mate Ferguson, was violating the speed limit, and that said Lilly did not properly observe the rules and regulations of traffic at the Vinson Street crossing, yet the defendant should not be convicted if the jury further believes that the defendant, Lilly, while then acting as a federal prohibition agent, was in pursuit of a Dodge car which he believed and had reason to believe was unlawfully transporting intoxicating liquors, and that said Lilly was using reasonable care and diligence, under the circumstances, for the safety of the public, and was acting in good faith, and if the jury believes he was so acting then they should acquit the defendant Lilly."
After refusing these instructions, the court, in the course of his charge, gave the jury the following instructions to which exception was duly taken, viz.:
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