Plummer v. State
| Decision Date | 10 October 1893 |
| Citation | 34 N.E. 968,135 Ind. 308 |
| Parties | PLUMMER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Benton county; U. Z. Wiley, Judge.
Jackson Plummer was convicted of manslaughter, and appeals. Reversed.
Stuart Bros. & Hammond and Saunderson & Comparet, for appellant. John T. Brown, for the State.
Appellant was indicted by the grand jury of Newton county, charging him, in six different counts, with the murder of James Dorn, in the first and second degrees, in the different counts, respectively. There was a change of venue granted to the court below, where, on a plea of not guilty and a plea of insanity, a trial resulted in a verdict finding appellant guilty of voluntary manslaughter, and fixing his punishment at 15 years' imprisonment in the state prison. After overruling appellant's motions for a new trial, in arrest, and to be discharged, the court below rendered judgment on the verdict. Among the errors assigned here is the overruling the motion for a new trial, and among the reasons assigned for a new trial were the giving, and refusing to give, certain specified instructions, and that the verdict is contrary to the evidence. It appears from the evidence, which is very voluminous, and quite impracticable to set out in this opinion, that the deceased, James Dorn, was a stout man, 48 years of age, with no ailment except at times he had been afflicted with rheumatism, though he seemed free from that at the time of his death; was the marshal of the town of Kentland, and had been for eight or nine years. Appellant, Plummer, was about 60 years old; had been suffering with chronic diarrhea contracted in the army, for which he was receiving a pension; was in bad health generally, and unable to work; somewhat smaller than Dorn, and not so stout; had always been peaceable and quiet; had lived in Kentland, and about there, ever since the war, and owned the house and lot in said town in which he lived. The town board of said town of Kentland had made an order requiring him to trim certain shade trees thereon, to which he objected, and, pending the dispute about it, appellant, Plummer, became very much excited, and about noon on the 20th day of June, 1892, he left his house with his loaded revolver in his hand, and went onto the business streets of said town inquiring for the members of said town board, making threats that he was not to be fooled with, saying they had ordered his trees to be cut down, and that he would shoot them; and, while so talking in an excited manner he would frequently brandish his revolver around. John Keefe told him that the town board would not cut his shade trees down, and that he had better go home. About this time, one Elliott called out for the marshal, or Dorn, and perhaps both, and he pointed his revolver at said Elliott, and said to him, “Call for the marshal again, damn you, and I will kill you;” and He also pointed his revolver at one Conklin, a member of the town board. Immediately after Keefe advised him to go home, he started in the direction of his home, carrying and flourishing his revolver in his hand. While he was yet in sight of those at the place where he started, and still going in that direction, Dorn, the marshal, came from another direction, up to the place from which Plummer had started. Keefe warned Dorn to be careful; that Plummer had a gun. Dorn then stopped, took his coat from his arm and laid it on a box, changed a revolver from his left to his right hip pocket, and took his billy in his left hand, and started on after Plummer, saying he was not afraid of him. When he came within 20 feet of overtaking Plummer, they both walking in the same direction, he took out his revolver, and held it in his right hand, and his billy in his left hand, and ordered Plummer to put up his revolver. Plummer told him to keep off, or keep back, while Plummer walked on, looking back at Dorn as he followed him up, Dorn repeatedly ordering him to put up his gun or revolver, and Plummer repeatedly warned Dorn to keep back, or keep away from him. While the two were thus proceeding, Dorn dodged behind shade trees on the sidewalk, stepped up behind Plummer, as one of the witnesses expressed it, on his “tiptoes,” and struck Plummer on the side of his head with his billy, and then on the back and arm, which knocked the revolver out of Plummer's hand, and thereupon Dorn fired on Plummer, missing him. Immediately thereafter, Plummer fired on Dorn, missing him, and they continued firing at each other until three or four shots had been fired. Dorn jumped behind a shade tree, and was making ready to fire again, when Plummer fired the fatal shot that killed Dorn, and he fell down and died. Dorn's second shot lodged a ball in Plummer's left side, making only a flesh wound. It is conceded that Dorn fired the first shot, though Plummer's first shot was so close to Dorn's first that it was difficult to tell which one was first. There is no direct evidence as to what Dorn, the marshal, was intending to do with Plummer, but the theory of the state is that he was intending and attempting to arrest Plummer without a warrant, for his several acts in pointing his revolver at Elliott and Conklin, and for carrying such revolver with the intent or avowed purpose of injuring his fellow man. Dorn did not inform Plummer that he desired or intended to arrest him. In a written statement made by Plummer, read in evidence, he states that Elliott began to call for Marshal Dorn, as he supposed, to arrest him. Plummer knew that Dorn was marshal of the town. Both offenses for which it is claimed the marshal was attempting to arrest Plummer were misdemeanors. Rev. St. 1881, §§ 1984, 1985.
A marshal is not authorized to arrest in all cases for misdemeanors without a warrant. He can only arrest for such offenses without a warrant when the offense is committed in his presence or sight. Rev. St. 1881, §§ 1702, 5976; section 828, Elliott's Supp.; Doering v. State, 49 Ind. 56; Bow v. Beckner, 3 Ind. 475; Gillett, Crim. Law, § 156; Murfree, Sher. § 1161. The attorneys for the state concede this to be the law, but they contend that inasmuch as some of the witnesses testify that, when Elliott called the marshal, in their opinion he was within hearing, and could have heard the call, and come onto the scene within a minute or two, he was in contemplation of law, present, or the alleged offenses were committed in his presence, in contemplation of law. They cite Wiltse v. Holt, 95 Ind. 469. That case lends some support to that contention. Assuming, however, without deciding, that the alleged offenses were committed in the presence or sight of Marshal Dorn, within the meaning of the law, and that he therefore had legal authority to make the arrest without a warrant, we are led to inquire whether he confined himself to the limits prescribed by the law in the exercise of that authority, and, if he transcended those limits, what effect that had upon his authority, even if he had the right to make the arrest without a warrant. He stepped up behind Plummer, and without requesting him to submit to arrest, or informing him that he desired to arrest him, with his revolver in one hand and his billy in the other, and without any act or provocation or resistance on the part of Plummer other than his traveling on towards his home with his revolver in his hand, and telling Dorn to keep back, or keep away from him, Dorn struck him on the side of the head with said billy, which was a policeman's club. The law does not allow a peace officer to use more force than is necessary to effect an arrest, and, if he do use such unnecessary force, he thereby becomes a trespasser from the beginning, and may be lawfully resisted, (Murfree, Sher. § 1164a, and authorities there cited; Id. §§ 1160, 148; Jarratt v. Gwathmey, 5 Blackf. 237;Burton v. Calaway, 20 Ind. 469.) If the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking the life of the person arrested, if absolutely necessary. 1 Bish. Crim. Proc. § 160; 1 Amer. & Eng. Enc. Law. 745, and authorities there cited; Murfree, Sher. § 1164a. But here the evidence wholly fails to show any necessity for the marshal's act in striking Plummer on the head with his club. He therefore was a trespasser in doing so, and was guilty of an aggravated assault and battery on Plummer. He did not stop at that, but he shot at Plummer with his revolver immediately after he struck him on the head, and before Plummer had fired at him. This gave Plummer a clear right to defend himself, even to the taking the life of his assailant. It is not necessary, to authorize one to exercise the right of self–defense, that the assailant should in fact contemplate injury to him. If he believed, and had reason to believe, from the actions of his assailant, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent. West v. State, 59 Ind. 113;Agee v. State, 64 Ind. 340;McDermott v. State, 89 Ind. 187. When a person, being without fault, is in a place where he has a right to be, and is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self–defense, his assailant is killed, he is justifiable. Runyan v. State, 57 Ind. 80;Miller v. State, 74 Ind. 1. These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence. Agee v. State, 64 Ind. 344;Jones v. State, 26 Tex. App. 1, 9 S. W. Rep. 53; 1 Amer. & Eng. Enc. Law, 745, and note 1; Golden v. State, 1 S. C. 292;Beaverts v. State, 4 Tex. App. 175;Skidmore v. State, 43 Tex. 93...
To continue reading
Request your trial