State v. Smith

• Citation: 127 Iowa 534,103 N.W. 944
• Parties: STATE v. SMITH.
• Decision Date: 06 June 1905
• Court: Iowa Supreme Court

127 Iowa 534

103 N.W. 944

STATE

v.SMITH.

Supreme Court of Iowa.

June 6, 1905.

Appeal from District Court, Monroe County; Robert Sloan, Judge.

Indictment for murder. Verdict of manslaughter, and judgment that the defendant be confined in the State Penitentiary for the term of three years. Defendant appeals. Reversed.

Former opinion, 101 N. W. 110, withdrawn.

Mitchell, Tomlinson & Price, for appellant.

Charles W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

DEEMER, J.

Defendant shot and killed one William G. Sarver. At the time of the homicide the defendant was a policeman in the city of Albia, and had arrested without a warrant S. D. Sarver, father of William G., for the crime of drunkenness. William G. interfered in the matter, and as a result of the altercation received a pistol shot, from the effects of which he almost immediately died. Defendant contended that the killing was justifiable on two grounds: First, because in defense of his person; and, second, because it was necessary to prevent a felony, and to secure an arrest of the deceased, or to prevent his escape.

The trial court gave the following among other instructions: “(23) When a peace officer, in making an arrest for a misdemeanor, is resisted by violence and force in making such arrest, then such officer has the right to resist force by force; and when the resistance is violent and determined such officer is not bound to make nice calculations as to the degree of force necessary to accomplish the purpose, but may use such a reasonable degree of physical force in overcoming such resistance and effecting such arrest as may reasonably appear necessary therefor, and to prevent the escape of the party whom he is arresting; but he has no right to take the life of such person, or inflict on him a great bodily harm, for the purpose of making such arrest, except when the officer has a reasonable apprehension of peril to his own life or of suffering great bodily harm. (24) If you find that the defendant had arrested S. D. Sarver, and W. G. Sarver, with knowledge thereof, appeared, and undertook by violence upon the defendant to effect the release of S. D. Sarver from such arrest, then it was the defendant's duty to arrest him, and his duty to submit thereto; and if the said W. G. Sarver by violence upon or against the defendant resisted such arrest, and attempted to escape therefrom, then the defendant had the right to resist by force, and was not bound to make nice calculations as to the degree of force necessary to accomplish the arrest, but he had the right to use such a reasonable degree of physical force in overcoming such resistance and effecting such arrest and preventing an escape as appeared reasonably necessary therefor; but he had no right to take the life of said Sarver, or inflict on him a great bodily injury, simply to effect the arrest, unless he had reasonable apprehension of peril to his own life, or of suffering great bodily harm.”

The defendant asked the following, which were refused, to wit: “(1) If you find that S. D. Sarver and Wid Sarver were in a condition of intoxication, and were therefor placed under arrest by the defendant, then you are instructed that it was their duty to submit to such arrest, and they had no right, by violence or otherwise, to resist such arrest; and if they attempted to escape from the arrest it was defendant's duty to resist and prevent the escape. And if you find that they did, by violence upon the defendant or otherwise, endeavor to escape from such arrest, then it was the duty of the defendant to do his utmost to prevent such escape, and in preventing it he had the right to use all the force and violence that, under all the circumstances and conditions then surrounding him at the time, seemed to him in good faith, as an ordinarily reasonable man, necessary to prevent such attempted escape, even to the use of a deadly weapon, if it so seemed to him necessary to use it.” “(3) If you find that the defendant had arrested S. D. Sarver, and that Wid Sarver, the deceased, appeared, and undertook by violence upon the defendant to effect the release of S. D. Sarver from such arrest, then it was defendant's duty to also arrest the said Wid Sarver, and it was said Sarver's duty to submit to such arrest; and if the said Wid Sarver, by violence upon or against the defendant, resisted such arrest, and attempted to escape therefrom, the defendant had the right to use all the force and violence that to him, in good faith as an ordinarily reasonable man under all the surrounding circumstances and conditions seemed to him necessary to prevent the escape.”

Of the instructions given and of the refusal to give those asked defendant complains. Taking up the ones given in the order quoted, we are of opinion that the first was correct. While the authorities are not in harmony upon the proposition involved, the better rule seems to be that an officer is not justified in killing a mere misdemeanant in order to effectuate his arrest, or to prevent his escape after arrest. In such cases it is better, and more in consonance with modern notions regarding the sanctity of human life, that the offender escape than that his life be taken, in a case where the extreme penalty would be a trifling fine or a few days' imprisonment in jail. Reneau v. State, 2 Lea, 720, 31 Am. Rep. 626;Skidmore v. State, 2 Tex. App. 20;U. S. v. Clark (C. C.) 31 Fed. 710;Head v. Martin (Ky.) 3 S. W. 622;Smith v. State (Ark.) 26 S. W. 712, s. c. 43 Am. St. Rep. 20;State v. Moore, 39 Conn. 244;Dilger v. Com. (Ky.) 11 S. W. 651. To this rule there are some exceptions, as in cases of riot, mob violence, etc. None of the exceptions apply to this case, however. The general rule does not, according to the great weight of authority, apply to felonies. Here an officer may oppose force to force, and, if there be no other reasonably apparent method for...