State v. Lingerfelt

• Decision Date: 08 December 1891
• Citation: 109 N.C. 776,14 S.E. 75
• Court: North Carolina Supreme Court
• Parties: State. v. Lingerfelt et al.

14 S.E. 75

109 N.C. 776

State.

v.Lingerfelt et al.

Supreme Court of North Carolina.

Dec. 8, 1891.

Bail—Absconding Principal—Arrest by Sureties.

Where a person indicted in Tennessee, in the United States circuit court, and released on bail, fails to appear for trial, and the sureties on his bail-bond are directed to pay tho amount of the bond unless they appear and show cause to the contrary, and it is ordered that a scire facias issue, the sureties have a right in person or by agent to enter the state of North Carolina, and there arrest their principal.

Appeal from superior court, Cherokee county; James H. Merrimon, Judge.

J. Lingerfelt and J. Swanson were convicted of murder, and appeal. Reversed.

The other facts fully appear in the following statement by Shepherd, J.:

The defendants were charged with the murder of Marion Cole, in the county of Cherokee, in July, 1891. It appeared in evidence that the deceased was indicted for violation of the United States revenue laws in the circuit court of the United States for the eastern district of Tennessee, and had given a bond, with the usual condition in such case, with one of the defendants as surety thereto, to make his personal appearance before said court in Knoxville, Tenn., at the time mentioned therein. He failed to appear, and thereupon it was considered by the court that said deceased and his sureties forfeit and pay to the United States the sura of.$1,000, according to the tenor of their bond, unless they appear and show cause to the contrary; and it was ordered that a scire facias issue. There was much evidence upon the trial in the court below, but it is not necessary to the understanding of the opinion of this court to report it.

The prisoners asked the court to charge the jury as follows: "(1) That if Lingerfelt, while acting under the belief that he had the right to arrest the deceased, went to the field of the deceased, and notified him that he had come for the purpose of arresting him, and the deceased made a violent attack on him with a hoe, which was a deadly weapon, and the assault was so violent that prisoner believed that he was in imminent danger of losing his life or suffering great bodily harm, the right of self-preservation asserted itself, and he had the right to shoot the deceased. (2) If he went to the deceased, and told him he had come to arrest him, as the agent of his bondsmen, the deceased had no right to slay the defendant, no demonstration to coerce the deceased having been made by the defendant; and il the jury should find that deceased made a deadly assault with a hoe, the defendant had a right to shoot him to save his own life or prevent great bodily harm. (3) That Swanson was one of the bail of the deceased, and had a right to pursue him into this state and capture him, and that that right continued until final judgment was rendered against him, and that he and his co-surety had the right to appoint Lingerfelt as their agent to capture or aid in capturing the deceased. (4) That defendants had the right to use so much force as was necessary to capture deceased, and, if the jury find that Lingerfelt used no more force than was necessary to repel the assault made upon him by the deceased with the hoe, the defendants would not be guilty. (5) That Swanson, not being present, was not guilty. (6) That if the jury find that defendants attempted to arrest deceased under a belief that they had authority to do so as bail, and in making the arrest the deceased attempted to kill Lingerfelt, and Lingerfelt, to save his own life, or prevent great bodily harm to himself, shot and killed the deceased, there was no malice, and they should find the defendants not guilty. (7) That Lingerfelt had a right to make the arrest, and was clothed with the same power for doing so as an officer. That he had a right to arrest him, peaceably if he could, and forcibly if he must; and if, in making the arrest, he used no more force than was necessary to do so, he was not guilty." His honor refused to give the said instructions to the jury, and the prisoners excepted. His honor then charged the jury as follows: "(1) That there was no evidence in the case to show that the prisoners had authority or the right to arrest the deceased. (2) That if Lingerfelt undertook to arrest the deceased, the deceased had the right to resist to the extent necessary to protect himself from such arrest; and if the deceased resisted, using no more force than was necessary under the circumstances, and for such insistence was shot and killed by Lingerfelt, Lingerfelt was guilty of murder; but if deceased used more force than was necessary under the circumstances, and said prisoner gave back, and was followed by deceased, and had reason to believe and did believe that deceased was about to kill him or do him great bodily harm, and shot and killed the deceased to protect himself, and not because he refused to submit to arrest, the prisoner was guilty of manslaughter, the jury being the judges of the reasonableness of the apprehension and not the prisoner. (3) That if Lingerfelt undertook or approached deceased toarrest him, and deceased, to avoid arrest, tied, and the said prisoner, under these circumstances, shot and killed deceased, he was guilty of murder. (4) That if the prisoners combined to arrest the deceased, and, in pursuance of a common plan to arrest him, he was killed by Lingerfelt, and the prisoner Swanson was present aiding and abetting Lingerfelt to execute their common purpose, Swanson was able in the same manner and to the same extent as Lingerfelt. (5) That if Lingerfelt did not undertake to arrest the deceased, and did nothing more than to go into the field to him and tell him that by authority of Swanson and the other surety who were on his bond for his appearance at Knox-ville, Tennessee, he (Lingerfelt) had a right to arrest him; that they had given him authority to arrest hiin, —and thereupon the deceased assaulted him with a hoe, and prisoner had...