State v. Gum

• Decision Date: 01 November 1910
• Citation: 69 S.E. 463,68 W.Va. 105
• Parties: STATE v. GUM.
• Court: West Virginia Supreme Court

69 S.E. 463

68 W.Va. 105

STATE v. GUM.

Supreme Court of Appeals of West Virginia.

November 1, 1910

Submitted September 13, 1910.

Syllabus by the Court.

If an attempted arrest be unlawful, the party sought to be arrested may use such reasonable force, proportioned to the injury attempted upon him, as is necessary to effect his escape, but no more; and he cannot do this by using or offering to use a deadly weapon, if he has no reason to apprehend a greater injury than a mere unlawful arrest. Instructions to the jury not so limited, were properly refused.

Error from Circuit Court, Pocahontas County.

Woods Gum was convicted of assault with intent to kill, and brings error. Affirmed.

N. C McNeil, for plaintiff in error.

Wm. G Conley, Atty. Gen., and D. E. Matthews, for the State.

MILLER J.

The indictment charges that the defendant did maliciously and feloniously cut, stab and wound one John Waugh, a sergeant of the town of Marlinton, while the latter was attempting to place him under arrest for being drunk and disorderly, with the intent to then and there maim, disfigure, disable and kill the said Waugh.

Upon the trial, upon his plea of not guilty, the jury found the defendant guilty of unlawful, but not malicious, wounding, as charged in the indictment. Upon this verdict the court below pronounced the judgment complained of, that the defendant be confined in the penitentiary for the period of three years at hard labor, and to be further dealt with according to law.

In his petition to this court for the writ of error allowed him, petitioner alleges numerous errors committed on the trial, but no oral argument was made or printed brief filed on his behalf on the final hearing here. The attorney general filed a brief on behalf of the state, and the case, thus presented, was submitted for decision.

Upon the trial below there was substantially no conflict in the evidence, and there is practically but one question, a question of law, presented by defendant's instructions to the jury numbered three and four, rejected, presented for decision. These instructions, poorly drawn, would have told the jury, substantially, number three, that if they believed from the evidence that Waugh was attempting to arrest the defendant without a warrant or other proper authority, defendant had the right to resist said arrest, and that they should find the defendant not guilty, unless they should find that said officer was attempting to make the arrest for the violation of the law committed in his presence or view; the fourth, that if they believed from the evidence that Waugh went upon the premises of defendant, and attempted to arrest him in his own house, without proper legal authority, by a warrant issued by a proper officer, or for some violation of law committed in his presence, he had the right to resist said arrest "in any manner he chose," and they should find the defendant not guilty.

The facts proven in brief were, that Waugh at the time of the alleged offense, at the request of defendant's wife, entered the home of defendant by the kitchen door, the witness Dennison accompanying him to the door, and being informed, first by Dennison before entering, and after entering by defendant's wife, that she wanted him to do something with defendant, because she was afraid he would do something before morning, he went on into the adjoining room where Woods was quietly sitting, and, to quote his own language, addressing the defendant, said: "I asked him what was the matter and he said, 'I wont stand what is going on in my home,' and I said, 'You had better keep quiet and go to bed and sleep this off' and he said, 'no, by God, there is a man and a woman in this room and a man and a woman in the other room and I will be God damned if I am going to stand it any longer' and I said, 'Mr. Gum, you will have to get quiet now or I will have to put you under arrest,' and he said, 'God damn you, you can't do it,' and at that I got him by the arms and I called Mr. Dennison, he was standing at the door, and when he come in Mr. Gum threw his right hand up and I discovered his knife for the first time, and he said to Mr. Dennison, 'By God, you stand back' and I said to Dennison, 'look out, he will cut you,' and just as I said that Gum made a vicious lick at him with the knife and I jumped behind him and grabbed him by both arms and he struck back at me with his knife that way (indicating) and struck me here and cut me. *** He threw back his hand and struck me there and I thought from the sting of the knife that he had cut me pretty badly, but after I had him arrested and took him to jail I did not think so much of it. It was a small place but was cut deep and it was six weeks before it was entirely healed up." At another point in his evidence this witness testified: "Q. When you first went in the sitting room, who was in there? A. Nobody but Gum. Q. I want you to tell the jury what he was doing? A. He was sitting there in the chair when I went in. Q. He wasn't saying anything to you or anyone else, was he? A. No, not at that time, he wasn't. Q. Who spoke first? A. I did--I said, 'Woods, what is all this excitement about,' and then he commenced. Q. The trouble started as soon as you said that? A. Yes, he commenced whenever I said that. I went in there at the instance of Mrs. Gum because she asked for protection." Defendant's wife corroborates the officer in his testimony, but says in addition, that before entering the room where defendant was, and where he was quietly sitting, the officer told her she would have to get a warrant before the arrest could be made.

There is no evidence of any offense committed by defendant in the presence of the officer or within his hearing, unless the offense, of attempting an assault upon Dennison with the knife be an offense, but this was after Dennison had been called in to assist in making the arrest, and Waugh had taken hold of defendant's arms. The charge of the indictment is that the offense was committed while Waugh was attempting to arrest the defendant on the charge of being drunk and disorderly.

Did the facts proven entitle the defendant to the instructions refused, or either of them? As stated by Bishop, Bishop on Crim. Proc., section 181, "their powers of arrest do not differ greatly; or, at least, the differences at common law are not distinctly defined in the books. *** For a past offence lower than felony, none of these officers can make an arrest without warrant; unless, for example, it is such a dangerous assault as may end in felony, by the death of the injured person." See also 3 Cyc. 880.

The offense of being drunk and disorderly is not a felony. Section 9, Ch. 153, Code 1906, among other things, provides: "If any person shall, in the presence of a constable, *** appear in a state of gross intoxication in a public place; such constable may, without warrant or other process, or further proof, arrest such offending person and carry him before some justice of the peace in the county, in which such offense is committed, ***." The statute, Section 15, Ch. 149, Code 1906, punishing drunkenness, provides: "If a person arrived at the age of discretion, profanely curse, or swear or get drunk, he shall be fined by a justice one dollar for each offence." Under neither of these statutes was the sergeant justified, without warrant, in making the arrest.

What rights then has a citizen in resisting an unlawful arrest? An arrest without warrant is a trespass, an unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined, as in other cases of assault. Life and liberty are regarded as standing substantially on one foundation; life being useless without liberty. 1 Bishop's New Crim. Law, section 868. And the...