Stinnett v. Commonwealth of Virginia

• Decision Date: 12 January 1932
• Docket Number: No. 3212.,3212.
• Citation: 55 F.2d 644
• Parties: STINNETT v. COMMONWEALTH OF VIRGINIA.
• Court: U.S. Court of Appeals — Fourth Circuit

55 F.2d 644 (1932)

STINNETT v. COMMONWEALTH OF VIRGINIA.

No. 3212.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1932.

John Paul, U. S. Atty., of Harrisonburg, Va., and C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va.

Edward Meeks, of Amherst, Va., for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a criminal prosecution instituted by the commonwealth of Virginia against one Talley Stinnett, a person employed by and acting under the authority of the United States in the enforcement of the National Prohibition Act (27 USCA). Stinnett, hereafter referred to as the defendant, was indicted in the circuit court of Amherst county, Va., charged with the murder of one Ernest Grant; and the case was removed for trial into the District Court of the United States for the Western District of Virginia, pursuant to section 33 of the Judicial Code (28 USCA § 76). The jury found defendant guilty of involuntary manslaughter; and, from a sentence of two years and six months in the penitentiary of Virginia, he has appealed to this court.

At the time of the killing of Grant, defendant had gone with one De Bord, a special employee of the United States, and one Smith, a state prohibition inspector, to an illicit distillery on the side of Snowden Mountain in Amherst county. There they discovered a number of barrels containing some 1,800 gallons of beer or mash, fermented and ready for distillation. Nearby was a place prepared for a furnace, and a little farther away a copper still. The officers hid themselves in the woods and awaited developments. After a while, according to their testimony, the deceased and a negro came up to the barrels, and deceased removed the covers from a number of them, and examined the beer as though testing it. He and the negro then became frightened and ran, and Smith followed them. Smith was wearing the uniform of a Virginia officer. As he was about to overtake deceased, the latter turned, and, drawing a pistol, pointed it at him and threatened to kill him if he came farther. Smith thereupon called for help, and defendant came with a rifle to his assistance. Defendant ordered deceased to drop the pistol, and, upon his refusal to do so, fired twice in rapid succession, the second shot striking deceased and causing his death. Defendant testified that he fired the second shot at deceased's legs, not intending to kill him; and it is a reasonable inference that this is true, as the bullet struck deceased in the hip and caused death by reason of its being deflected.

The foregoing is the version of the killing given by the officers. The prosecution, however, introduced the negro who was with the deceased and who testified that he and the deceased ran when the officers came up, and that the officers ordered them to stop and began shooting when they continued running. The prosecution also introduced several witnesses who testified that, shortly after the occurrence, defendant admitted shooting deceased as he was running away following the encounter with Smith. According to one of these witnesses, defendant stated that he ordered deceased to drop the pistol which he had drawn on Smith and shot behind him, that deceased then ran, and he (defendant) shot again. Another witness testified that defendant stated to him that deceased had backed Smith out and that he (defendant) came up and shot deceased as he was running away. The verdict, which found defendant guilty of involuntary manslaughter only, indicates that the jury did not consider that defendant acted wantonly or maliciously, but at the most that he acted negligently or used excessive force. It becomes very important, therefore, to determine whether the jury were properly instructed as to the force which defendant might rightfully use in making the arrest which he had undertaken.

On this point, it appears that the court instructed the jury that they should acquit the defendant if they found that, when he shot deceased, the latter was pointing his pistol at Smith, but should convict him if he shot while deceased was running away and no longer threatening Smith. In this we think there was error. The defendant was engaged with other officers in attempting to arrest the deceased, who, if their testimony is to be believed, had been guilty of the commission of at least three felonies in their presence, and who had used a deadly weapon in resisting arrest. In such case, the rule applicable is not the rule as to the force which an officer may use in defending himself or another officer, but the rule as to the force which may lawfully be used to effect the arrest of one guilty of a felony. That rule is that the officer has the right to use such force as under the circumstances appears reasonably necessary to effect the arrest or prevent the escape of the felon, and that, if the reasonable use of such force results in the death of the felon, the officer is not to be held criminally accountable therefor. Of course, the jury and not the officer is to be the judge of the force reasonably necessary under the circumstances, and this final supervision should serve as a salutary restraint upon the use of undue violence on the part of the officers of the law; but it should be remembered that the jury is to judge of the necessity, in the light of the circumstances as they reasonably appear to the officer at the time.

Contention is made that the deceased was not guilty of felony; but, if the evidence of the defense is accepted, there is no ground for such contention. In the first place, the unlawful manufacture of intoxicating liquor is a felony under both the federal law and the law of Virginia. Act of March 2, 1929, c. 473, § 1, 45 Stat. 1446 (27 USCA § 91); Virginia Code, § 4675 (5). And there was evidence here from which the jury would have been justified in concluding that deceased was guilty of this felony. He was not only at a place prepared for operating a distillery where 1,800 gallons of beer had been prepared and was ready for distillation, but he was seen by the officers to test the beer as if to ascertain whether it was ready. And the fact that he was armed, that he ran, and that he resisted the officers when overtaken, were all circumstances tending to show that he was implicated in the unlawful manufacture. The fact that the beer had not been distilled at the time does not negative the existence of the crime. It is a matter of common knowledge that such beer is intoxicating and is frequently used as a beverage, and manufacturing it would in itself be a violation of the statute. But, in addition to this, the evidence relied upon by the defense justified the inference that the deceased was connected with the unlawful manufacturing of liquor of which the fermentation of the beer was merely one of the processes. The law reaches every part of the process of manufacture; and the mere fact that men who engage in manufacturing in violation of law do not complete the process does not absolve them from guilt. Danovitz v. U. S., 281 U. S. 389, 396, 397, 50 S. Ct. 344, 345, 74 L. Ed. 923; United States v. G. Wilkenfeld & Co. (D. C.) 46 F.(2d) 462, affirmed (C. C. A. 2d) 46 F. (2d) 464.

In the Danovitz Case, supra, the argument was made that the manufacture of intoxicating liquor was completed with its production, that the placing of it in barrels was not a part of the manufacture, and that consequently such barrels could not be confiscated as property designed for manufacture. The argument was rejected; the court, through Mr. Justice Holmes, saying: "The argument for the petitioner cannot be helped by amplification. It is obviously correct if the word `manufacture' be taken in the strictest and most exact sense. But the word may be used in a looser way to express the whole process by which an article is made ready for sale on the open market. P. Lorrilard Co. v. Ross, 183 Ky. 217, 223, 209 S. W. 39. As the purpose of the Prohibition Act was to `suppress the entire traffic' condemned by the act, United States v. Katz, 271 U. S. 354, 357, 46 S. Ct. 513, 70 L. Ed. 986; Donnelley v. United States, 276 U. S. 505, 513, 48 S. Ct. 400, 72 L. Ed. 676, it should be liberally construed to the end of this suppression, and so directs. Title 2, § 3, of the Act, Code, title 27, § 12 (27 USCA § 12)."

In addition to this, the deceased was guilty of felony under section 4675 (9) of the Virginia Code in having a pistol on his person while engaged in manufacturing intoxicating liquor. And he was guilty of felony under 18 USCA § 121, also, in using a deadly weapon in resisting an officer of the United States authorized to make searches and seizures. There can be no question but that the defendant comes within the protection of that statute. 27 USCA § 45. And it is not necessary to render a person guilty of felony thereunder that the officer resisted be at the time engaged in a search or seizure, but merely that he be engaged in the performance of his duties under the law. Wheeler v. U. S. (C. C. A. 5th) 293 F. 588. But, of course, the officers here were as a matter of fact engaged in the seizure of the beer and the paraphernalia used in the distilling of liquor as well as in the attempted arrest of the deceased; and it would be indeed a narrow construction of the statute which would give...