State v. Carter

• Decision Date: 26 October 1923
• Citation: 195 N.W. 567,50 N.D. 270
• Court: North Dakota Supreme Court

195 N.W. 567

50 N.D. 270

STATE OF NORTH DAKOTA, Respondent, v. HARRY W. CARTER, Appellant

Supreme Court of North Dakota

October 26, 1923

Appeal from the District Court of Williams County, Lowe, J.

Affirmed.

E. R Sinkler and G. O. Brekke for appellant.

"And where one kills an officer attempting to arrest him, if there is nothing from which his knowledge of the official character of the officer might be inferred, the measure of his offense descends from murder into one of the degrees of manslaughter." Yates v. People, 32 N.Y. 509.

"The killing of an officer by a person whom he sought to arrest is manslaughter only, where such person had no notification either express or implied, and no information of the officer's powers, and intentions, or of the character in which he was acting, otherwise it is murder." Robinson v. State, 93 Ga. 77, 44 Am. St. Rep. 127 18 S.E. 1018.

"And the duty of a peace officer to arrest a person for unlawfully carrying arms should not be given in a charge to the jury in a prosecution for the killing of such officer while he was attempting to arrest such person, where the officer did not disclose his authority, and the person killing him did not know he was an officer, or was attempting to arrest him, since, under such circumstances, he had a right to resist. " Montgomery v. State, 43 Tex. Crim. Rep. 304, 55 L.R.A.866, 65 S.W. 537; Strickland v. State, 81 Mass. 134, 32 So. 921; State v. Alford, 80 N.C. 445; Starr v. United States, 153 U.S. 614, 38 L.Ed. 841, 14 S.Ct. 919;

"But though it be deemed the duty of an officer to give notice of an intention to arrest before doing so, it does not follow that, in case of his failure to do so, a homicide committed in resisting such arrest, would be either justifiable or excusable. The person sought to be arrested may not unlawfully offer forcible resistance to such attempt to arrest him, until all other means of peaceably avoiding it have been exhausted and it is only in the last extremity that the right to use a deadly weapon under any such circumstances, arises." People v. Carlton, 115 N.Y. 618, 22 N.E. 257; State v. Phillips, 118 Iowa 660, 92 N.W. 876; Territory v. McGinnis (N. M.) 61 P. 208.

"While a man is not justified in killing in defense against an illegal arrest of an ordinary character, the law sets such high value upon the liberty of the citizen that an attempt to arrest him unlawfully is esteemed a great provocation--such as may reduce a killing in resistance of such an arrest to manslaughter." Miller v. State, 32 Tex. Crim. Rep. 319, 20 S.W. 1103; Ex parte Sherwood, 29 Tex.App. 334, 15 S.W. 812; Jones v. State, 26 Tex.App. 1, 8 Am. St. Rep. 454; Dyson v. State, 14 Tex.App. 454; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 545; King v. Aday, 1 Leach, C. L. 206.

"And as a general rule it is not murder but manslaughter to kill an officer or other person to prevent an illegal arrest." 52 L.R.A. 751, 29 So. 535; 18 Am. Rep. 601, 55 P. 626.

"A person may resist an unlawful attempt to arrest him, and if necessary, rather than submit, he may lawfully kill the person making it." Zimmerman v. State, 14 Neb. 568, 17 N.W. 115; State v. Scheele, 57 Conn. 307.

"Where there are persons in sight whose aid can be procured, it is aggravated assault and battery for an officer to strike with a pistol a drunken man who refused to go with him." Skidmore v. State (1875) 43 Tex. 93; Skidmore v. State (1877) 2 Tex.App. 20.

"The officer cannot chastise the prisoner for insolence." Moody v. State (1904) 120 Ga. 868, 48 S.E. 340; Dixon v. State (1912) 12 Ga.App. 17, 76 S.E. 794.

"He may not unnecessarily brutally assault and beat him." Cash v. People (1889) 32 Ill.App. 250.

"He cannot strike and beat an unresisting prisoner after they have reached the guardhouse." Moody v. State (Ga.) supra.

"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, repell force by force, and if, in the reasonable exercise of his right to self defense, his assailant is killed, he is justifiable." Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

"An innocent man is unconscious of guilt and may stand on his own defense. When assailed under a pretense which is false, his natural passion rises, and he turns upon his assailant with indignation and anger. To be arrested without cause is, to the innocent person, great provocation. If in the frenzy of passion he loses his self control and kills his assailant, the law so far regards his infirmity that it acquits him of malicious homicide." State v. Scheele, 14 Am. St. Rep. 116.

"It is apparent that what the officer did or did not do at the time of the attempted arrest, if the defendant was not committing a crime, must be the criterion as to whether the defendant could or could not resist, and the determination of whether he could or could not resist must determine whether he did, in killing the officer, commit any crime and what the grade of that crime is." Robinson v. State (Ga.) 44 Am. St. Rep. 127; Montgomery v. State, 55 L.R.A. 866; Strickland v. State, 32 So. 921; People v. Carleton, 22 N.E. 257; State v. Phillips, 92 N.W. 876; Territory v. McGinnis, 61 P. 208; Miller v. State, 32 Tex. Crim. Rep. 319.

"In charging the jury the court should limit its instructions to the facts in evidence. The court is not called upon to settle legal principles which have no relevancy to the case before it; it should confine itself to those questions of law alone which arise from the facts and circumstances established by the testimony and which properly belong to the case at bar. The fair test of the propriety of a charge cannot be whether in the abstract it is right. It must be considered with reference to the evidence of the facts charged on which the jury is required to respond. It follows then from what has been said that it is improper to give an instruction where there is no evidence on which to base it, or to submit to the jury matters which there is no evidence tending to prove." See cases cited 2 Enc. Pl. & Pr. pp. 168-170.

R. E. Swendseid, State's Attorney, and F. F. Wyckoff, for respondent.

"A person is drunk in a legal sense when he is so far under the influence of intoxicating liquor that his passions are visibly excited or his judgment impaired by the liquor." State v. Pierce (Iowa) 21 N.W. 195; Lafler v. Fisher (Mich.) 79 N.W. 934.

"However, if the party about to be arrested knows the capacity and purpose of the officer it is not necessary for the officer to make known said purpose, or in what capacity he is acting." Montgomery v. State, 55 L.R.A. 866.

"While the arrest was practically admitted by the State to have been unlawful and without cause, there was some evidence which the jury had a right to consider which tended to show malice. The facts as claimed by deceased, that before leaving the room defendant put on a slicker having a pistol in his pocket that he told the deceased that somebody was looking out of the jail window apparently with a design to attract his attention, and thereafter immediately shot him, and that he continued to fire after deceased had fallen, were circumstances which might well have justified the jury in finding that there was express malice." State v. Meyers (Ore.) 33 L.R.A.(N.S.) 143.

"The general rule is that the presumption of malice applies where the homicide is committed with a deadly instrument, unless the contrary appears from the evidence." Whart. Crim. Ev. p. 1520.

"In this case, if defendant intentionally, wrongfully, killed the deceased, without any justification or excuse, then he killed with malice, and that would constitute murder." State v. McDaniel (S. C.) 102 Am. St. Rep. 661.

"However, if the party about to be arrested knows the capacity and purpose of the officer, it is not necessary for the officer to make known said purpose, or in what capacity he is acting." Montgomery v. State, 55 L.R.A. 866.

JOHNSON, J. BRONSON, Ch. J., and CHRISTIANSON, BIRDZELL, and NUESSLE, JJ., concur.

OPINION

JOHNSON, J.

The defendant and appellant was convicted of murder in the second degree in the district court of Williams county. He was informed against in Mountrail county, but on application for a change of venue by him, the case was transferred to Williams county. He appeals from the judgment and from an order denying a motion for a new trial.

The appellant makes three principal contentions, any one of which, if sustained, necessitates a new trial. The grounds of error, in general, are: First, that the evidence is insufficient to support a verdict of murder in the second degree, there being, it is alleged, no evidence of a premeditated design to effect death or of malice, express or implied, existing at the time of the homicide; second, that the court misdirected the jury in a manner in fact prejudicial to the defendant and also erroneously refused to give requested instructions: and, thirdly, that the trial court erroneously denied defendant's motion for a new trial upon the ground of newly discovered evidence.

There is testimony in the record tending to show the following facts: About midnight on the 18th of August, 1921, one C. L Madison was shot, death resulting within an hour. Deceased was at that time on the police force of the city of Stanley. The defendant, for some time prior to the shooting, had been in the Commercial Hotel in a somewhat intoxicated condition; he had been using profane language, pushing on the doors of the rooms and trying to get into some of them and, in a rather boisterous and noisy manner, insisting that he had a right to be there notwithstanding the fact that he did not have a room at the hotel. One of the girls at the...