State v. Stockton.

• Decision Date: 09 September 1924
• Docket Number: No. 4998.,4998.
• Court: West Virginia Supreme Court
• Parties: State v. Stockton.

97 W.Va. 46

State

v.Stockton.

No. 4998.

Supreme Court of Appeals of West Virginia.

Submitted March 18, 1924.

Decided September 9, 1924.

1. Areest May Arrest, or Game Arrest of, Persons Engaged in Breach of Peace in His Presence.

A justice of the peace, under section 221 of chapter 50 of the Code, has the right to arrest, or cause to he arrested, persons engaged.in a breach of the peace committed in his presence, and to have said offenders brought before him for trial, and in pursuance of his authority under said action, he has the authority to order any person to carry out his orders. (P. 48).

(Arrest, 5 c..t. § 26).

2. Homicide Private Person Making Arrest at Command of Justice of Peace May Exercise Right of Self-Defense-, Even Though Belief That Life Endangered May Prove to be Groundless.

When a private person is commanded by a justice of the peace to arrest and bring before him persons engaged in a breach of the peace committed in the presence of said justice, such person so commanded.is bound under the law to obey the orders of the justice, and in so doing such person is protected by the law, and, without a warrant for the arrest of the offenders, he may enter their premises, and in a legal manner execute said commands, and if, while he is attempting to execute said commands upon one he has been commanded to arrest, he is attacked by him in such a manner or under such 'Circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent that such design will be accomplished, and he has reasonable grounds to believe, and does believe, such danger is immjinent, he may act upon such appearances, and, without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger that it would be done; but of all this the jury must judge from all the evidence and circumstances of the case. (p. 48).

(Homicide, 30 C. J. § 256).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Error to Circuit Court, Boone County.

J. F. Stockton was convicted of voluntary manslaughter, and he brings error.

Reversed, and remanded for new trial.

B. J. Pettigrew, for plaintiff in error. E. T. England, Attorney Creneral, and R. Dennis Steel, Assistant Attorney General, for the State.

McGinnis, Judge:

Defendant obtained a writ of error to a judgment of the circuit court of Boone County, wherein he "was sentenced to one year imprisonment upon the verdict of a jury finding him guilty of voluntary manslaughter. We will make no comments upon the evidence further than is necessary to disclose the errors assigned.

It appears that on the 12th day of August, 1922, there was a disturbance of the peace at the town of Valco in said county, and that the justice of the peace who maintained an office in said town and lived a short distance therefrom was informed of the disturbance. He came to the town of Valco for the purpose of quieting the disturbance and arresting the persons involved therein. Soon after he arrived, and while he was on the store porch of the coal company which operated a coal plant at that place, he saw one Dave Crockett chasing a woman with a rock in his hand. He called upon some of the persons present on this store porch to go down and arrest this man Crockett and they refused to go, saying that they were unarmed, and the justice of the peace then called upon the defendant, Stockton, who was at the time at his home which was near the store porch, and told him to get a gun and go down and arrest these people, who were engaged in this disturbance of the peace, naming one Casto and the said Dave Crockett.

The defendant in pursuance of the order of the justice, procured a pistol and went down a short distance from where he was at the time to the house of one Clevenger, where he found the man Casto and arrested him and took him before the justice, who turned him over to some other parties who were present; and the justice again commanded the defendant to go down and arrest Dave Crockett who was at the time, in the language of the justice, "raising sand down there around the house." Stockton proceeded to the residence of Crockett and about the time he got there Crockett came out of his house with a chair in his hands. All that was said at the time by the prisoner and the deceased was not understood by the other witnesses who saw the shooting, the distance being too great or the voices too low, all of the witnesses except the defendant being some distance away, the nearest being about sixty feet from, the point where the defendant attempted to make the arrest. It appears that when the defendant approached Crockett and demanded that he come with him, and told him that he had been authorized by the justice to arrest him and take him before the justice for being drunk and disorderly, Crockett refused to go, holding the chair. As to whether or not he advanced toward the officer with the chair there seems to be some conflict of testimony. However, it is undisputed that the defendant attempted to arrest him and he refused to go with the defendant, saying he was not going anywhere; and a number of witnesses, both for the State and the defense, stated that he advanced in the direction of the defendant with the chair, and as stated by the defendant, he threw his hand in his hip pocket and was attempting, apparently, to draw something therefrom. According to the testimony of the defendant, deceased ordered him to stop while he was approaching and threatened to knock his brains out, and at the time he advanced upon him, deceased had his hand in his hip! pocket and threatened to kill the defendant. The defendant then presented his pistol and told the deceased that under the order of the justice he demanded his surrender and that he had come to arrest him;

that he wanted him to come with him to the justice, which deceased refused to do and advanced toward the prisoner with a chair held in a threatening: manner.

The prisoner presented his pistol and ordered him to stop, which he did, and placed the chair on the ground and threw his hand to his hip pocket and said, "God damn you, I will kill you", and, that while Crockett was advancing upon him, he fired one shot aimed low, Which shot took effect in one of Crockett's legs. This shot did not seem to stop the deceased; he kept advancing upon the defendant, the defendant fired two other shots each of which entered the left side of the deceased and from the effects of which he died within a few days afterwards.

The defendant was tried and found guilty of voluntary manslaughter and sentenced to the penitentiary for one year as stated above.

There are several errors assigned by counsel for the defendant but we do not deem it necessary to go into any of them except the giving of improper instructions to the jury on behalf of the state over the objection of the defendant and the refusal of the court to give to the jury proper instructions offered by the defendant, The state's instruction number one, is as follows:

"The Court instructs the jury that if they believe from the evidence that the prisoner was not a peace officer and had no warrant for the arrest of the deceased at the time of the shooting, that the prisoner had no legal right to arrest the deceased, and the deceased had a right to resist the arrest when attempted by the prisoner, with reasonable force, proportioned to the injury attempted upon him, but no more. And if the jury find from the evidence that the prisoner attempted to arrest the deceased and the deceased resisted such arrest, or refused to be arrested, but did not use any more force than was necessary to prevent such arrest, and did not attack or offer to attack the prisoner in such a manner as to give him, the

prisoner, good grounds for believing that he was in. danger of death or great bodily harm at the hands of the deceased, then you should find the prisoner guilty of one of the offenses charged in the indictment, but not however, of murder in first degree."

We are of the opinion that the court erred, in giving this instruction to the prejudice of the defendant. This instruction seems to have been, given upon the theory that by reason of the fact that the defendant did not have in his possession, at the time, a warrant for the arrest of the said Crockett then he was in fault; that the deceased had the right to defend himself from an illegal arrest; and this seems to have been the...