State v. Cobb

• Citation: 65 N.C. 327
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1871
• Parties: THE STATE v. BARNEY BRYANT alias COBB.

65 N.C. 327

THE STATE

v.BARNEY BRYANT alias COBB.

Supreme Court of North Carolina.

January Term, 1871.

A private person may arrest for felony, when it appears that it is necessary, for want of an officer or otherwise, that he should do so, to prevent the escape of the felon. In making such arrest for a felony, the person making it must notify the felon of his purpose, or he will be guilty of a trespass.

It seems that a private person who, when it is necessary for him to act, attempts to arrest a felon guilty of a capital offence, such as murder or rape, may kill him if he either resists or flies, but he has no right to kill a person guilty of a felony of an inferior grade, such as theft, if he does not resist, but only attempts to escape by flight.

The defendant was tried at the last Term of the Superior Court for the County of WAYNE, before his Honor, Clarke, J., upon an indictment for an assault and battery upon one Cogdell. It appears in evidence that a hog was stolen from the defendant's employer, and that the defendant suspecting that Cogdell was the thief, went to his house and charged him with the offence, but he denied it and attempted to run off, when the defendant, after ordering him four times to stop, shot him. The stolen hog was found in Cogdell's house, partly cleaned and cut up, his wife and children being the only persons there. His Honor, upon these facts, held that the defendant was guilty and so charged the jury, whereupon a verdict of guilty was rendered and a judgment pronounced, from which the defendant appealed.

Faircloth, for the defendant .

Attorney General, for the State .

READE, J.

The defence is put upon the ground, that a felony had been committed to the knowledge of the defendant; that he, a private person, had the right, without a warrant, to arrest the felon; that the felon fled to prevent arrest, and that the defendant shot him to prevent his escape.

It is the duty of every sworn officer, and the privilege of every private person, to prevent the commission of crime, and to arrest the felon when crime has been committed.

The right of a private person to arrest without warrant, grows out of the importance of bringing offenders to trial, and the danger of escapes, when warrants cannot be readily had. But, manifestly, when the condition of things will bear it, it is best to apply to a Justice for a warrant, or, to apply to a Constable or Sheriff. But when such delay would be dangerous, a private person may arrest without a warrant, and may call others to his assistance. “Nay, further, if the felon resists or flies, so that he cannot be taken without killing him, this is justifiable, and no felony; but still, it must be where he cannot be otherwise taken.” 2 Hale's P. C., 76.7.

It must be, however, that the powers of arresting, and the means used, must be enlarged or modified by the character of the felony. The importance to society of having felons arrested in cases of capital felonies--such as murder and rape--must be much greater than in cases of inferior felonies, such as larceny. As is said in Hale's P. C. 73, in speaking of the liability of the ville, town or county for the escape of felons: “But this is only in case of felony touching the death of a man; for there the fact is apparent that the man is slain; but in case of...