Sossamon v. Cruse

• Decision Date: 24 November 1903
• Citation: 45 S.E. 757,133 N.C. 470
• Parties: SOSSAMON v. CRUSE.
• Court: North Carolina Supreme Court

45 S.E. 757

133 N.C. 470

SOSSAMON v. CRUSE.

Supreme Court of North Carolina

November 24, 1903

Appeal from Superior Court, Cabarrus County; Shaw, Judge.

Action by J. W. Sossamon against John Cruse. Judgment for defendant and plaintiff appeals. Reversed.

It is improper to instruct that, if the jury "believe from the evidence" certain facts, certain consequences will follow, as a mere belief is not sufficient on which to found a verdict.

Montgomery & Crowell, for appellant.

W. G Means and L. T. Hartsell, for appellee.

WALKER J.

This is an action to recover damages for an assault. At the time of the alleged assault there was an ordinance in force in the town of Concord prohibiting loud and profane swearing within its corporate limits, and defendant and Luther Biles were policemen of the town. There was evidence tending to show that plaintiff and one Maxwell were fighting on the streets when the defendant, who had heard loud cursing, went to where they were, and accused them of fighting, and arrested Maxwell; and the plaintiff then said that anybody who accused him of fighting told a lie, at the same time cursing the defendant, who struck the plaintiff with his "billy" and knocked him down. The defendant and Biles then jumped upon him, and defendant told Biles to "tap him again." In the struggle plaintiff took the billies from both of the policemen, and escaped by running beyond the town limits. As he was running away the defendant and Biles pursued him, and shot at him several times. Plaintiff ran to a point across the creek, and about 100 yards beyond the corporate limits, when the defendant and Biles approached within 5 or 6 feet of him and demanded the possession of the billies. The plaintiff refused to give them up, when the defendant shot him. The plaintiff fell, and the defendant and Biles ran up and hand-cuffed him and carried him to the mayor's office, "where he was tried for using loud and profane swearing." On the other side there was evidence tending to show that the defendant acted lawfully and was entirely within his right when he first arrested or attempted to arrest the plaintiff, and that when he had escaped and was running away the defendant did not fire at him, though Biles did; that when the defendant asked plaintiff for the billies the latter advanced upon him in a threatening attitude, and the defendant then shot the plaintiff in self-defense.

The plaintiff requested the court to charge the jury as follows: "If the jury find from the evidence that the plaintiff had violated the town ordinance against loud and profane swearing on the streets, and that the defendant had attempted to arrest him, and that plaintiff got loose and was running from defendant, and while so running defendant had shot at him with a pistol, then, in law, that would be an assault, and they should respond 'Yes' to the first issue." This instruction the court refused to give, and the plaintiff excepted. The court charged the jury fully in regard to the power of a policeman to arrest for the violation of a town ordinance, when the offense is committed in his presence, and to this part of the charge there was no objection by the plaintiff, but exception was taken to the following passages in the charge of the court: "(1) If you are satisfied from the evidence that the defendant had reasonable grounds to believe, and did believe, that plaintiff was violating in his presence the ordinance prohibiting loud and profane swearing in the corporate limits of the town of Concord, and arrested the plaintiff, although the defendant was mistaken, he would be excused; and you are the judges of the reasonableness of the grounds upon which the defendant acted. (2) If the jury believe from the evidence that the plaintiff was violating, in the presence of the defendant, the ordinance of Concord prohibiting loud and profane swearing within the corporate limits, and the defendant, not being actuated by ill will, malice, hatred, or malevolent purpose, arrested the plaintiff, and the plaintiff, not being out of the control of the defendant, attempted to escape, and to prevent such an escape the defendant fired his pistol, such firing would not constitute an assault."

Before discussing what we regard as the principal and vital question in the case, we will call attention to the phraseology of the second passage taken from the charge of the court. The jury is there told that, if they "believe from the evidence" the facts therein recited, the acts of the defendant did not constitute an assault. This court has referred to this form of expression as being open to the objection that the jury might believe that certain facts existed when they would not be willing to find that they did exist, and that the law, as given by the court to the jury, should be based, not upon their belief, merely, but upon the facts as found by them under the rule of law as to the burden of proof, and such proper instructions from the court as will enable the jury to intelligently weigh and apply the evidence. State v. Barrett, 123 N.C. 753, 31 S.E. 731; Wilkie v. Railroad, 127 N.C. 203, 37 S.E. 204.

We are of the opinion that, upon the evidence in the case, the court should have given the instruction asked by the plaintiff in his prayer. The exception to the refusal to give the instruction may conveniently be considered with the first of the above instructions given by the court, to which exception was also taken. That instruction was, in substance, that if the plaintiff had been lawfully arrested, and, "not being out of the control of the defendant, had attempted to escape, and, to prevent such an escape, the defendant fired his pistol, such firing would not constitute an assault." This instruction, in view of what seems to be the uncontroverted facts in the case, was erroneous. It appears that the defendant attempted to arrest the plaintiff without a warrant ""for loud and profane swearing on the streets of Concord in violation of the town ordinance," to use his own words. The plaintiff according to his testimony, cursed the defendant and called him a liar, and thereupon the defendant knocked him down, and an altercation between them ensued. According to the defendant's testimony, when he arrested the plaintiff for loud and profane swearing the latter resisted the arrest and struck the defendant twice, and the defendant then struck the plaintiff with the billy, and got upon him and tried to put his twisters on his wrists. According to the testimony of both sides, the plaintiff overpowered the officers and escaped with their billies. The defendant and Biles, the other officer, pursued him beyond the corporate limits. In this connection the plaintiff testified as follows: "When I ran, they shot several times at me." The defendant, when within a few feet of the plaintiff, fired at him, and the pistol ball struck him in the knee. He testified that when he did so the plaintiff was advancing upon him, though the plaintiff testified that the defendant fired at him and shot him in the knee because he refused to give up the billies. The evidence therefore tended to show that the plaintiff had escaped and was flying from arrest when he was fired upon by the defendant and Biles, and that when the defendant shot him in the knee he had succeeded in escaping from his pursuers, and was not then, nor was he at any time when the...