Meek v. Tilghman

CourtSupreme Court of Oklahoma
Citation55 Okla. 208,1916 OK 127,154 P. 1190
Docket NumberCase Number: 6418
PartiesMEEK v. TILGHMAN et al.
Decision Date01 February 1916
Syllabus

¶0 1. SHERIFFS AND CONSTABLES--Action on Official Bond-- Person Killed Resisting Arrest--Pleading--Color of Office. Where a deputy sheriff killed a man, and his widow brought suit against the sheriff and his bondsmen for damage, alleging that the husband of the plaintiff had committed a misdemeanor in the presence of the deputy sheriff, who thereupon attempted to arrest him, and, upon the deceased resisting arrest, the deputy released his hold upon him, and stepped off a few steps, but returned to the deeased saying, "I will arrest you, anyhow," and shot the deceased, killing him, held, that the facts pleaded show this act was done while in the discharge of his official duty, and under the color of office, and that it was error to sustain a demurrer to the petition on the theory that at the time of the shooting the deputy was only engaged in a personal encounter, and not acting under the color of office.

2. SAME--Official Acts--What Constitute. The mere fact that a peace officer in the discharge of his duty becomes angered does not rob his acts of their official character. Nor does the fact that he may have momentarily abandoned his effort to discharge this official duty render the resumption of it any the less an official act.

3. SAME--Wrongful Acts of Deputy Sheriff--Liability on Official Bond. Under the Constitution, the law cannot inflict the death penalty as punishment for a misdemeanor; and an officer certainly has no right to kill a person guilty of a misdemeanor to prevent him from escaping justice.

W. S. Pendleton, for plaintiff in error.

T. G. Cutlip and McClain Taylor, for defendants in error.

BRETT, C.

¶1 This is an action on a sheriff's bond commenced in the superior court of Pottawatomie county by the plaintiff in error against the defendants, the sheriff of that county and his bondsmen, to recover damages for the alleged wrongful killing of her husband by a deputy sheriff. The parties will be referred to as plaintiff and defendants, as they appeared in the lower court. The petition, after alleging that the plaintiff is the administratrix of the estate of M. H. Meek, deceased, alleges that E. A. Pierce was the duly elected, qualified, and acting sheriff of Pottawatomie county, and that the defendants, King, Green, Perry, and Wilson are his bondsmen, and charges that one J. B. Tilghman was a duly appointed, qualified, and acting deputy sheriff, and alleges, in substance, that on the 19th day of March, 1911, M. H. Meek, then living, was the husband of plaintiff; that he had a bottle of whisky on his person, and was conveying same from place to place in the city of Shawnee; that he, the said Meek, broke said bottle of whisky against a brick wall in the presence of said J. B. Tilghman; that said Tilghman attempted to arrest Meek; "that the said Meek then and there protested against said arrest, insisting that the said Tilghman had no right to arrest him without a warrant; that the said Tilghman still insisted on holding the said Meek under arrest, dragging him some yards, but finally released his hold and walked away a short distance from the said Meek; that during this time the said M. H. Meek and the said officer were quarreling and calling each other hard names, when suddenly, in a fit of anger and rage, said Tilghman whirled around, drawing his revolver, and, walking back to the said Meek, said, 'I will arrest you, anyhow,' and fired at the said Meek several shots from the said revolver, three of said shots taking effect in the body of the said Meek, killing his instantly." And the plaintiff asked for actual and also exemplary damages. No service of summons was had upon Tilghman, as it appears he had absconded. The sheriff and his bondsmen each filed general demurrers to the petition of plaintiff, which were sustained by the court. The plaintiff declined to amend her petition, and judgment was rendered against her for the costs, and from this judgment she appeals to this court. The sole question is whether the petition stated a cause of action against the sheriff and his bondsmen. The defendants insist that it does not, for the reason that the petition does not allege facts sufficient to show that at the time the wrong was committed Tilghman was acting in his official capacity, and in the discharge of his official duty. But they say, on the other hand, it shows that Tilghman had abandoned the arrest, and returned to engage in a personal encounter. But we cannot agree with this contention. While it is true that the petition is not a model, yet, as we have said...

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