State v. Feed Best.

• Decision Date: 26 September 1922
• Docket Number: No. 4509.,4509.
• Parties: State v. Feed Best.
• Court: West Virginia Supreme Court

91 W.Va. 559

State

v.Feed Best.

No. 4509.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 1922.

Decided September 26, 1922.

1. Criminal Law Opinion by Intermeddler That One About to

be Arrested by a Police OfflcerHad Violated no Law Inadmissible.

The opinion of an intermeddler that one about to be arrested by a police officer has violated no law justifying his or her arrest, is not proper evidence on the trial of such police officer on an indictment charging him with the unlawful and malicious shooting of such intermeddler. (p. 568).

2. Same Evidence Concerning Appearance of Defendant's Face, in Prosecution for Malicious Shooting, Irrelevant.

Nor did the appearance of the police officer's face, when following such intermeddler and a prostitute on the street for the purpose of seeing that she keeps her promise to retire to a hotel until the arrival of the train on which she has promised to leave for her place of residence, under the circumstances of this case, have any relative bearing on the issues involved in his trial for the alleged unlawful and malicious shooting of such intermeddler. (p. 568).

3. Assault and Battery Evidence in Prosecution of Police Officer for Malicious Shooting, Throwing Light on Conduct of Intermeddler Shot by the Officer Admissible. Evidence of witnesses present immediately before the arrest of such prostitute and at the time of her arrest, and others as to her conduct and known character, and as to her defender's knowledge thereof, calculated to throw light upon and characterize the subsequent conduct of him and the officer before and at the time of the difficulty and the interchange of shots between them, was proper evidence to go to the jury, and should not have been excluded on the trial of the officer for the alleged unlawful and malicious shooting of his antagonist, (p. 570).

4. Same Ordinance Justifying Arrest by Police Officer Admissible in Prosecution of Officer for Malicious Shooting.

The municipal police ordinance of the city of Morgantown, of which the accused was an officer, relating to loitering, and to which he referred his authority in arresting the prostitute, was competent and legal evidence to go to the jury on his trial, at least on the question of his good faith in making the arrest and defending himself against the intrusion of White, and the ordinance should have been admitted, (p. 571).

5. Criminal Law Abstract Instruction on Malice in Prosecution for Malicious Shooting Held Error.

The facts and circumstances given in evidence in this case did not warrant an instruction in the abstract, telling the jury that to convict one of malicious shooting it was not necessary that malice should exist in the heart of the accused against another, but that such malice might be inferred from the act of shooting with a deadly weapon. In a case like this the jury are bound to take into* consideration all the facts an'd circumstances disclosed by the evidence, and it was misleading to tell the jury, as State's instruction number three in this case did, that malice might be so inferred, without reference to the facts and circumstances calculated to rebut such inference of malice. (p. 571).

6. Assault and Battery Instruction Charging That Accused Might Inflict Injury with Any Deadly Weapon Held Error, in Prosecution for Malicious Shooting.

State's instructions numbers three and four were prejudicial to the defendant's rights because they indicated to the jury that they might find the defendant guilty if he inflicted the injury upon the prosecuting witness by striking him or shooting him with any deadly weapon, for the indictment limited such striking and shooting to a gun with bullets and did not authorize conviction for an offense inflicted in any other way. Instruction number four told the jury in so many words that they might convict if defendant assaulted White "with any deadly weapon." The qualifying words "in manner and form charged in the indictment," did not cure the defect in that instruction. (p. 572).

7. Arrest Obstructing Justice, One Having no Blood Relationship With One About to be Arrested Cannot Laiofully Interfere; One Unlawfully Interfering with Arrest Guilty of Breach of Peace. Justifying Own Arrest Without Warrant. One having no blood relationship or the relationship of master and servant to one about to be arrested by a municipal police officer for a supposed offense, whether with or without a lawful warrant, has no lawful right to interfere to resist such arrest when the one about to be arrested offers no resistance thereto. And if one not so related interposes and commits an assault upon the officer, he is guilty of a breach of the peace justifying his own arrest without a warrant. (p. 574).

S. Same One.-Not Justified in Interfering with Officer Making Arrest Peaceably, with or without Legal Process. While in some cases third persons may lawfully intervene to prevent a fight or other breach of the peace accompanied by violence, one is not justified in opposing an officer of the law who is attempting to discharge his duties peaceably, with or without legal process. (p. 376). 9. Criminal Law Instruction Ignoring Essential Element Should be Rejected.

A binding instruction to the jury which ignores essential elements to be considered by them, though correct in the abstract, should be rejected as inapplicable to the facts on which the rights of the parties depend。 (p. 577).

Error to Circuit Court, Monongalia County. Fred Best was convicted of assault and battery, and he brings error.

Reversed and remanded.

Frank P. Weaver, Albert Shaman, and Terence D. Stewart, for plaintiff in error.

E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Miller, Judge:

This writ of error is prosecuted by defendant to reverse the judgment of fine and imprisonment pronounced against him by the Circuit Court of Monongalia County on October 21, 1921.

The indictment on which he was tried and convicted

charged that "Fred Best on the day of August, 1921, within one year next preceding the date the finding of this indictment, in the county aforesaid, with a certain gun then and there loaded with gunpowder and bullets, unlawfully, feloniously and maliciously did shoot one Glenni White, with intent him the said Glenni White then and there to maim, disfigure, disable and kill against the peace and dignity of the state."'

The verdict of the jury upon which the judgment complained of was pronounced, was as follows: "We, the jury, find the defendant not guilty of unlawful, felonious or malicious shooting' with intent as charged in the within indictment, but do find him guilty of assault and battery."

Defendant was a police officer of the city of Morgantown; and Glenni White, upon whom the indictment alleges the offense was committed, was a constable of Monongalia County. The difficulty out of which the alleged offense arose began when the defendant in the discharge of his duties as a police officer, and on complaint of a.railroad employee at the station, where the difficulty began, went to the station in answer to a telephone call concerning a girl or woman of reputed bad character said to have been loitering in the neighborhood of the railway station. The account of this difficulty, as told in the language of the defendant, is as follows:

"Q. What was that call? A. A call came from the B. & 0. station and stated that there was a bad character woman down there, and men and boys hanging around, and she ought to be looked after. Q. What kind of a call was it ! A. Telephone call. Q. Go ahead and tell the jury what yon did in respect to that call. A. I went down there, and, of course, it is always custom to go to the party who calls, to find out what the exact trouble is. I thought it was my duty to go and see the agent first. I w7ent to the ticket window operators window, rather and asked him if he had sent a call into the police station. He says, 'I did not.' I then told him I had a call from the B. & 0. station to come down there; that there was a bad character woman there conducting herself in a bad way and should be looked after, and men and boys hanging around. He pointed over my shoulder then and said, 'There is the girl. I suppose, you are looking for.1 turned and there was a girl standing there with Glenn White, 'Cocky' Molter, and several other young men standing around I did not notice who they were particularly. I recognized the girl as a character pointed out to me before here in town, and T walked up to her and asked her what she was doing, and she said she had a job here in a grocery store on Pleasant Street, and 1 asked her to come and go with me and I would find out whether she had a job there or not. Then she changed her mind about that and told me if 1 would let her go she would go on the first train to Fairmont, I told her that would be all right; if she would do that 1 would let her go. Then I asked her when she came to town, and she says, 'Yesterday.' I also asked her where she stayed last night, and she says, 'The Maderia Hotel.I says, 'You go there then and stay until this next train comes, 7 and she says. 'All right, I will.' Then she says to Mr. White, 'Go with me.' I am just a little ahead of my story. When she spoke of the position on Pleasant Street, she said Mr. White got her the job. I told Mr. White he had better not go with her, that she knew the way up there and it wasn't necessary, but he insisted upon going, and I says, 'All right, 1 will go along to see if she goes up there or not. I followed along the street behind them 1 suppose I was twenty feet behind them, and when 1 saw they had no intention of turning up to the Maderia Hotel, I stepped up a bit faster and met them right there in front of the Bishop Garage between the sales room and the big door entrance. I walked up to the girl and took hold of her arm, and I asked her, 'I thought you told me you were going to the Madeira Hotel.' Before she...