People v. Bernard

• Decision Date: 29 January 1901
• Citation: 125 Mich. 550,84 N.W. 1092
• Court: Michigan Supreme Court
• Parties: PEOPLE v. BERNARD.

84 N.W. 1092

125 Mich. 550

PEOPLE v. BERNARD.

Supreme Court of Michigan

January 29, 1901

Error to circuit court, Van Buren county; John R. Carr, Judge.

Charles L. Bernard was convicted of assault with intent to murder and he appeals. Affirmed.

James E. Chandler, Pros. Atty. (William G. Howard of counsel), for the People.

Dwight Goss, for respondent.

LONG J.

Respondent was convicted of the crime of assault with intent to kill and murder one John Britton, undersheriff of Van Buren county. In the summer of 1899, the respondent, together with one M. J Maloney, brought from Chicago to South Haven, this state, a small steam launch, which they ran as a public conveyance on Black river and the harbor at South Haven as a pleasure boat. They tied the boat, when not in use, to a certain dock on Black river; and, refusing to pay dockage, the parties owning the dock commenced proceedings against the boat under the water-craft act of this state to recover the amount due them for wharfage and dockage. The process issued in that case was delivered to one Gleason, a deputy sheriff, for service. He attempted to serve the same, and in July, 1899, went aboard the boat of respondent, called the Louise, for that purpose, when the respondent and Maloney steamed the boat up the river for a distance, and forcibly ejected Gleason therefrom. On the evening of the same day Gleason again attempted to serve the process, when, as Gleason testified, respondent told him that if he came aboard the boat he would shoot him. Respondent was thereafter arrested for resisting an officer in attempting to serve process. The people claim that when respondent was taken before the justice for that offense he stated that he would shoot the first man who came aboard his boat to serve process. It is shown by the people that after Gleason failed to make service of the process, it was turned over to the sheriff of the county, and that he, on the 4th of August, 1899, accompanied by Undersheriff Britton, went down to the dock where the boat was tied for the purpose of serving the process; that they met the respondent on the dock in front of the boat, and the sheriff introduced himself to the respondent, saying, 'I am the sheriff of the county, and I have come to serve process on your boat, and here is a copy of it, and I would like to explain the matter to you;' that he got no further with the explanation when the respondent jumped upon his boat, ran around the boiler to the tool box, took out a revolver, and said he would shoot them if they came upon the boat; that they went upon the boat, when respondent shot and wounded Britton. The defense was: (1) That the writ under which the officers were acting was void, and not fair upon its face, and afforded them no protection for what they did; (2) that respondent was defending his own person, that he was protecting his castle, and that he had reason to believe that a forcible felony was being attempted.

We shall discuss the second question first. The people's testimony tended to show that the sheriff and his undersheriff went to the dock, and the sheriff introduced himself, and told respondent what he was there for, and gave him a copy of the process. He must have known from the acts and conduct of the officers that they were not there for the purpose of offering him any personal violence. When the sheriff attempted to explain the situation to him, he would not listen, but at once rushed to the tool box, where his revolver was kept, and, according to the people's witnesses, fired the first shot, wounding Mr. Britton. He fired directly at him with apparent intention to kill. It is shown by the testimony that shots were fired by the officers but the whole testimony, aside from respondent's, tends to show that he fired the first one. It is also shown by testimony introduced by the people that at the time of the first arrest of the respondent prior to that time, for resisting an officer, he made threats he would kill any officer who attempted to seize his boat. This is undisputed by the respondent, but his testimony in regard to the shooting was that, before he attempted to make any resistance, the sheriff fired on him first, and that he only acted in self-defense. As to the shooting by himself, he testified: 'Britton told me to throw down my revolver. When he said that, he had a gun in my face, and I had been shot, and I stood there paralyzed, with the revolver in my hand as I grabbed it out of the box. Britton says, 'Drop that, or I will put a hole through you.' I simply opened my hand, and the revolver fell out of my hand. It was of no use to me. I was paralyzed.' Upon his cross-examination respondent admitted that after the shooting he immediately left South Haven, and fled to the state of Virginia. The question as to whether respondent fired the first shot and whether he was acting in self-defense was fairly left to the jury in the charge by the trial court. The court instructed the jury upon...