State v. Cantieny
| Decision Date | 10 July 1885 |
| Parties | STATE OF MINNESOTA <I>vs.</I> ANTONY CANTIENY. |
| Court | Minnesota Supreme Court |
Woolley & Reed, for appellant.
W. J. Hahn, Attorney General, and F. F. Davis, for the State.
The defendant was tried in Hennepin county upon an indictment charging him with the murder of Robert Laughlin in the city of Minneapolis. By verdict of the jury he was found guilty of manslaughter in the second degree. Upon a case, and upon affidavits presented as proof of newly-discovered evidence, a new trial was sought, but was refused, and the defendant appealed to this court.
It is claimed that it was not proved that the offence was committed in the county of Hennepin, where the indictment was found; and it is true that no witness testified directly that such was the fact. Yet there is abundant evidence satisfactorily, although somewhat indirectly, proving the venue. Many witnesses, through the use of such words as "here," "here in Minneapolis," and "in this city," and otherwise, locate the commission of the offence concerning which they testified in the place where the trial was had, which also appears to have been the city of Minneapolis. The court was sitting in Hennepin county. Enough is shown upon this point by the testimony of the witnesses Hein, Pray, and Little, as well as by other evidence. The proof was sufficient, although it was indirect. State v. Grear, 29 Minn. 221.
It was shown, and was not controverted, that Laughlin was a police officer of the city of Minneapolis, and engaged in the discharge of his duties as such on the occasion under consideration. He was shot by the defendant upon the street at about 3 o'clock in the morning of July 26, 1884, and died a few days subsequently from the wound then received. The defendant, with two companions, was in the streets of the city at the hour above named. They had been drinking to some extent, and, as the evidence tended to show, were somewhat intoxicated, noisy, and disorderly. The evidence also goes to show that the deceased attempted to induce the three men to retire from the streets; that they resisted his efforts, and tried to get his club away from him; that, the officer signalling for assistance, the three men then passed along the street, kicking and striking the street-signs as they went, then stopped and began "scuffling;" that the officer then arrested them. After the arrest, the defendant, attempting to escape, ran along the street, pursued by the deceased, who repeatedly called upon the defendant to stop; that during this pursuit, and before the deceased had discharged his pistol, although he had attempted to discharge it, the defendant drew a revolver from his pocket. The defendant still fleeing, the deceased shot at him, but without effect. The defendant instantly turned and shot the deceased, inflicting a fatal wound.
It appears from the evidence that the defendant knew that the deceased was a police officer.
It is claimed that the verdict was not justified by the evidence. In deciding this question it is immaterial whether we regard the arrest by the officer as unauthorized and illegal, or as the lawful exercise of police authority. In either view of the case the evidence justifies the verdict. One has no legal right to kill another to prevent a mere trespass, unaccompanied by imminent danger of great bodily harm or other felony, and which does not produce a reasonable apprehension of such danger. An attempted unlawful arrest may be resisted by means not greatly disproportionate to the injury threatened; but the killing of the assailant is not justifiable when there is neither danger of great bodily harm or other felony being committed, nor reasonable apprehension of such danger. Noles v. State, 26 Ala. 31; Gen. St. 1878, c. 94, § 10. And the rule is the same in a case where one having been unlawfully arrested attempts to escape. Reg. v. Allen, 17 Law T. Rep. (N. S.) 222. In such cases the right to kill does not arise unless, in the course of a lawful and not disproportionate resistance of the arrest, the offending party so conducts himself that it becomes necessary, or apparently necessary, to kill him in order to prevent the commission of great bodily harm or other felony. At the common law the taking of life, when not so justified, was at least manslaughter, and, under some circumstances, was even murder. Com. v. Carey, 12 Cush. 246; Roscoe, Crim. Ev. 576 et seq.; 1 Hale, P. C. 457, 458.
Upon the question of justification the case was submitted to the jury upon instructions which were substantially in accordance with the defendant's request. The jury were warranted in concluding that the defendant was not actually or apparently subject to any danger of great bodily harm, but only to a mere arrest, and that any danger to which he might be exposed from the officer using his pistol might have been avoided by submitting to the arrest. It was the duty of the defendant thus to submit rather than to take the life of the officer. By the verdict the question of justification was conclusively determined against the defendant.
The statute thus defines the offence of which the defendant was convicted:
"The killing of a human being by another in a heat of passion, upon sudden provocation, or in sudden combat, intentionally, but without premeditation, is manslaughter in the second degree."
"Whoever unnecessarily kills another, except by accident or misfortune, and except in cases mentioned in subdivision 2 of section 5 of this chapter," (which relates to justifiable homicide,) "either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, shall be guilty of manslaughter in the second degree."
"The killing of a human being by another, without a design to effect death, but with a dangerous weapon, or in a cruel and unusual manner, in the heat of passion, upon sudden provocation, or in sudden combat, is manslaughter in the second degree." (Gen. St. 1878, c. 94, §§ 22, 23, 24.)
In some possible views of the case, not necessary to be considered, since the verdict was for a less offence, the defendant might have been found guilty of one of the higher degrees of criminal homicide. In any possible view of the case, and upon the undisputed facts, the killing was, if not justifiable, at least manslaughter in the second degree, as above defined. If the arrest was lawful, and defendant's resistance unlawful, the correctness of the result already indicated is still more apparent.
The only degrees of criminal homicide less than that expressed in the verdict are the third and fourth degrees of manslaughter. The court, in effect, instructed the jury that this case could not fall within either of those classes. The instruction was correct. The only part of the definition of the third degree of manslaughter which would be claimed as possibly applicable to the case, is that which declares the offence to be an involuntary killing, not constituting manslaughter in the first or second degree. By the defendant's own testimony, — and no evidence presents the case in a light more favorable to him, — the killing of the officer by the defendant was not in legal contemplation "involuntary." He admits that he shot at the deceased, although, as he says, without taking aim. By the terms of the statute the case is excluded from the provision under consideration.
Manslaughter in the fourth degree consists — First, of a killing with a weapon not dangerous, etc.; which, of course, has no reference to a case of intentional shooting with a loaded pistol. Second. "Every other killing of a human being by the act, procurement, or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, is manslaughter in the fourth degree." (Gen. St. 1878, c. 94, §§ 31, 32.) Upon the undisputed facts of this case the act of the defendant was either justifiable, or it was manslaughter in the second degree, or a criminal homicide of a still higher degree. We do not hesitate to declare this as a necessary legal conclusion. It follows that the statute last recited is inapplicable, as is apparent from its terms, and it was proper for the court to so instruct the jury. State v. Rheams, post, p. 18; Gen. St. 1878, c. 114, § 11.
The receiving in evidence of an ordinance of the city of Minneapolis is assigned as error. The ordinance is entitled "An ordinance relative to misdemeanors, breaches of the peace, and disorderly conduct." It declares that any person who shall make "any noise, riot, disturbance, or improper diversion" shall, upon conviction, be liable to "a fine not exceeding one hundred dollars and costs of prosecution, and imprisonment for a period not exceeding ninety days, either or both, at the discretion of said court." It also subjects to the same penalties persons found in a state of open or notorious drunkenness in any street or public place in the city. The ordinance also contains provisions relating to persons found lying in wait or concealment with intent to commit crime, to riot, to indecent and immoral conduct, and cruelty to animals.
It is first objected that the ordinance does not conform to a requirement of the city charter, which is that "the subject of every ordinance shall be expressed in its title, and no ordinance shall embrace more than one subject." The ordinance is not a violation of this requirement. Such restrictive provisions have been generally, from obvious necessity, construed liberally, and the exercise of conceded legislative power has not been interfered with, and the expressed legislative will declared of no effect, unless it has been clear that the purposes of the restrictive law have not been accomplished. State v. Gut, 13...
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