People v. Arnett, No. 153.

• Court: Supreme Court of Michigan
• Writing for the Court: WIEST
• Citation: 214 N.W. 231,239 Mich. 123
• Docket Number: No. 153.
• Decision Date: 06 June 1927
• Parties: PEOPLE v. ARNETT et al.

239 Mich. 123
214 N.W. 231

PEOPLE
v.
ARNETT et al.

No. 153.

Supreme Court of Michigan.

June 6, 1927.

Error to Circuit Court, Montcalm County; Royal A. Hawley, Judge.

Edgar Arnett was convicted of murder in the second degree, and David Arnett of manslaughter, and they bring error. Affirmed.

Argued before the Entire Bench except CLARK, J.

[214 N.W. 232]

Penny & Worcester, of Cadillac, for appellants.

John B. Lewis, Pros. Atty., and Frank A. Miller, Spec. Pros. Atty., both of Stanton, for the People.

WIEST, J.

Edgar Arnett was convicted of murder in the second degree, and David Arnett of manslaughter, under an information charging them jointly with the murder of Franklin B. Henkel, sheriff of Montcalm county. Defendants prosecute review by writ of error.

September 22, 1926, defendants attended a homecoming at the village of Lakeview, Montcalm county. Edgar, at the home of his brothers David and Kelson, saw a revolver and placed it in his pocket without their knowledge. At the village Edgar purchased cartridges, loaded the gun, placed it in his pocket, and later showed it to an acquaintance. During the day both defendants became the worse for liquor, and about 11 o'clock at night, the sheriff, noticing their intoxication, told them to go home and followed them to their automobile. Edgar seated himself in the car to drive and was told by the sheriff to ‘get over and let your brother drive.’ Edgar replied that he could drive the car, and remarked, ‘Who in hell are you?’ The sheriff then said, ‘You are too drunk to drive it; you come with me; I will lock you up;’ and entered the car. As the sheriff entered the car, Edgar drew the loaded gun from his pocket. The sheriff took hold of the gun, but did not obtain possession, and,

[214 N.W. 233]

in the hands of Edgar, a bullet was fired from the gun through the body of the sheriff, penetrating the walls of the body, the peritoneum, mesentery, and cutting an intestine, causing death 48 hours later. When the sheriff entered the car, David was standing on the ground, heard the sheriff say to Edgar, ‘You will have to come with me; I will lock you up;’ knew Mr. Henkel was an officer and was arresting Edgar for being drunk.

The prosecution claimed at the trial that as the sheriff entered the car, and was trying to take the gun from Edgar, David seized hold of the sheriff, interfered with his hold on the gun, and then the first shot was fired. The jury so found.

Defendants' versions will be stated later. When David took hold of the sheriff, he brought the officer from the car, and, while the sheriff was taking measures against David, Edgar got out of the car with the gun in his hand and shot the sheriff again. The second shot did not inflict a mortal wound. To understand the issues of fact and applicable law, we now quote, from their testimony, the versions of defendants:

David Arnett testified:

‘Edgar then got into the car first. He got in under the wheel, and the sheriff told him to get over; he was too drunk to drive. Edgar did get over. When he did get over, he made the remark he claims he did, but he got over at the same time. I remember that the sheriff said I will take you and lock you up, or something of that sort. Edgar spoke up, and says, ‘Who in hell are you?’ when he told him to get over. The next thing I saw the sheriff started to get into the car. He says, ‘You will have to come with me,’ and got into the car, and right off I heard the report from the gun; right off immediately as the sheriff got into the car. I thought the sheriff was shooting my brother, and started to get into the car to see what was the trouble. Up to that time I did not know that Edgar had any gun. I didn't see any gun on him then. When I went to get into the car, I don't know whether or not I took hold of the sheriff. I don't remember whether I did or not. After this report I heard trouble, and he came out of the car; it seems he turned around as he came out of the car; and he grabbed on to me and commenced pounding me over the head with something, I couldn't say what it was; kind of stunned me. I hollered out I was shot; seemed as if I was shot; and I made this remark: ‘I am shot! I am shot!’ After I remarked, ‘I am shot,’ I heard another shot shortly afterwards; immediately afterwards. After the sheriff got out of the car, I heard two shots I think as I remember. After these last two shots were fired, about that time I got relieved from the sheriff and started away immediately in a hurry. * * * I then started to get into the car, because I heard a report from the gun shortly after he got into the car, and I thought he was shooting my brother, so I started to get in the car with Henkel. I didn't jump on him and put my arms around his neck as I recall. I don't remember whether I did or not; I won't say I didn't. I didn't pull Henkel out of the car to my knowledge; I don't want to say either way; to my knowledge I didn't. I don't know. I knew what was going on then. I knew Henkel was an officer, and I knew he had already arrested Edgar and had taken him into his custody before I got into the car; in fact, I didn't get into the car at all. I started to get in the car. When I started to get in the car, Henkel came out of the car. I didn't pull him out; to the best of my opinion I didn't. * * *

‘Q. What did you step up on the car for? A. I thought he had shot my brother. I wanted to protect my brother.

‘Q. You were going to protect your brother when he was under arrest? A. I don't know. I stepped up on the car platform to protect my brother. I thought he was shot. I wanted to see if he was. * * *’

Edgar Arnett testified:

‘I got into the car under the steering wheel on the left side. The sheriff told me to get over and let my brother drive the car. I got over to the other side, but I told him I was able to drive the car. He said, ‘You are too drunk to drive.’ I says, ‘Who in hell are you?’ He says, ‘I will take you and lock you up.’ I had the gun in my pocket at that time. I took it out to put it in the back seat, and he came in the car and grabbed the gun, and it went off. He pulled the gun, and it went off. I did not take it out of my pocket for the purpose of shooting at the sheriff nor for the purpose of frightening him, or anything of the kind. I took it out to put it over in the back seat. The sheriff at that time was getting into the car. He grabbed hold of the gun, and it went off. I had hold of it at the same time. I don't know when I took it out whether I had my finger on the trigger or not; it was done so quick I don't remember. I didn't have it nor intend to have my finger on it. When this gun went off, we went out of the car on the ground. He was in front of me. He backed out of the car; I don't know how he went out. We went out together in some way in the mixup. I don't know whether the sheriff grabbed hold of me or not, but I finally got out of the car. I do not know whether David grabbed hold of the sheriff or not; he was behind him trying to get in the car; I imagine he was trying to get into the car. He was behind the sheriff. This was a two-door Ford. As to whether I got out of the car after the sheriff went out, I was right there in the mixup when I went out; I don't know how I went out. When I got out of the car, the sheriff was beating David over the head with a gun and pushing David out in front of the car. David was backing up, trying to get away from him, trying to dodge the licks. David began crying. I heard David cry, and he says, ‘I am shot! I am shot!’ Then I was excited, I thought he was killing David, so I fired the second shot. The first shot went off in the car; the second one I fired. At that time, I didn't shoot to hit the sheriff; I shot off to one side; to the right; to the east of him. * * * At that time I was right in front of the...