Thomas v. Kinkead

• Decision Date: 27 February 1892
• Citation: 18 S.W. 854,55 Ark. 502
• Parties: THOMAS v. KINKEAD
• Court: Arkansas Supreme Court

18 S.W. 854

55 Ark. 502

THOMAS v. KINKEAD

Supreme Court of Arkansas

February 27, 1892

APPEAL from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

Judgment reversed and cause remanded.

T. J Oliphint for appellants.

1. An officer cannot take life in attempting to arrest or to prevent escape after arrest, in misdemeanor cases, unless the party resists by force, endangering the life of the officer or threatening great bodily harm. The court's instructions on that subject were erroneous. 11 Ky. L., 67; 2 Lea, 720; 1 Lewin, Cr. Cases, 187; 3 S.W. 622; 44 Texas, 645; 50 Ala. 117; 1 Hale, P. C., 481; 1 East, P. C., 302; 65 N.C 327; 44 Tex. 128; 106 N.C. 728; 11 S.W. 520.

2. As to the law of arrest, see Mansf. Dig., sec. 2005; 50 Mich 549; 1 Bald., 240; 21 Ala. 240; 8 Me. 127; 22 Mich. 267; 1 Wend., 210.

Ratcliffe & Fletcher for appellees.

Thomas being under arrest, whether for misdemeanor or felony, when he attempted to break away, Heard had a right to shoot him to prevent escape if that extreme measure was necessary. 1 Bish., Cr. Pr. (2d ed.), sec. 161; 106 N.C. 728; 3 S.W. 623; 44 Tex. 128; 34 Minn. 361; 30 Ala. 682, 693-4; 3 Harr., 568-9; 1 Mill, S. C., 385-7; 1 Hill, S. C., 212; 1 East, P. C., 295; 1 Russell on Cr., 665; 2 Bish., Cr. Law, secs. 662-3; 80 Ky. 1; 78 id., 380.

2. The sureties are not liable for the acts of Heard. 49 Pa. 151; 2 Des. (S. C.), 629; 13 Mo. 437; 28 N.J.L. 224; 11 Ired. (N. C.), 141; 51 N.H. 136; 44 Mo. 491; 37 Conn. 365; 32 Ind. 239; 22 La. An., 600: 39 F. 853; 43 N.W. 297; 8 Otto, 142; Addison on Cont., pp. 65-6 appendix; 9 Mo. App., 63; 84 N.C. 128; 58 Miss. 717; 55 Cal. 304.

OPINION

MANSFIELD, J.

This action was brought by the widow and minor children of John Thomas, deceased, against Ewing Kinkead, a constable of Pulaski county, and the sureties on his official bond, to recover damages for the alleged wrongful killing of Thomas by Jesse F. Heard, a deputy of the defendant Kinkead as such constable. Heard was also made a defendant. The complaint avers that the act of killing was committed under color of a warrant for the arrest of Thomas, to answer for a misdemeanor charged against him before a justice of the peace, and that it was done wantonly and without cause.

The defendants by their pleading justify the killing as having been done by Heard in self-defense, while lawfully exercising his power to execute the warrant mentioned in the complaint, and while Thomas was unlawfully resisting arrest and attempting to escape. The appeal is from a judgment rendered on the verdict of a jury against the plaintiffs.

The death of Thomas resulted from a wound inflicted by a pistol-shot, and the evidence as to the immediate circumstances of the homicide was such as to make it questionable whether he had been actually placed under arrest before he was shot. It was contended at the trial that his arrest had been accomplished, and that he was killed while attempting to break away from the custody of the officer. As applicable to this view of the facts, the court, against the objection of the plaintiffs, gave the jury the following instruction: "If the jury find from the evidence that Heard had actually arrested Thomas, whether for felony or misdemeanor, if Thomas attempted to get away, Heard had a right to shoot him, if this shooting was necessary to prevent his escape; provided Heard acted in the exercise of due caution and prudence."

In repeating substantially the same charge in a different connection, the jury were told that life can be taken to prevent an escape only in case of extreme necessity and when the officer has exhausted all other means of enforcing the prisoner's submission. The duty which the law enjoins upon an officer to exercise his authority with discretion and prudence was also fully and properly stated, and the jury were in effect instructed that the needless killing of a prisoner would in all cases be wrongful. In another part of the charge, it was stated, as an admission of the pleadings, that the offense of which Thomas was accused was a misdemeanor. And in other respects the charge of the court was such that the plaintiffs were not prejudiced by the instruction we have quoted, if the life of a prisoner may be taken under any circumstances merely to prevent his escape after arrest for a misdemeanor.

The doctrine of the court's charge is approved by Mr. Bishop, who states it in his work on Criminal Procedure substantially in the language employed by the trial judge. 1 Bishop, Cr. Pro., sec 161. In his note on the section cited, the author refers to his work on Criminal Law (vol. 2, secs. 647, 650) and to two cases decided by the Supreme Court of Texas-- Caldwell v. State, 41 Tex. 86, and Wright v. State, 44 Tex. 645. In the first of these cases, a prisoner who had been arrested for horse stealing broke away from the custody of the officer, and the latter shot and killed him as he ran in the effort to make his escape. It was held that the officer was rightfully convicted of murder in the second degree--the evidence showing that the prisoner was unarmed and neither attacking nor resisting the officer. The judge who delivered the opinion said: "The law places too high an estimate upon a man's life, though he be * * a prisoner, to permit an officer to kill him while unresisting, simply to prevent an escape." But as the arrest was for a felony, it may be that the decision was controlled by a statute of that State which provides that an "officer executing an order of arrest shall not in any case kill one who attempts to escape, unless in making or attempting such escape, the life of the officer is endangered or he is threatened with great bodily injury." However that may have been, the case gives no support to the text in connection with which it is cited. Nor is such support to be found in the case of Wright v. State, where the decision was that the power conferred by a Texas statute upon an officer having the custody of a convicted felon to take the life of the prisoner to prevent his escape does not extend to an officer attempting to re-arrest an escaped convict.

The rule laid down without qualification in "Criminal Proceedure" is stated only as "a general proposition" in one of the sections referred to in the work on Criminal Law. From the text of the latter reference is made to the treatise of Russell on Crimes and to the earlier works of Hale and Hawkins. But these writers all appear to limit the application of the rule to cases of felony or to cases where the jailer or other officer having the custody of a prisoner is assaulted by the latter in his effort to escape and the officer kills him in self-defense. 1 Hale, P. C., 481, 496; 1 Russell on Crimes, 666, 667; 1 Hawkins, P. C., 81, 82. The decisions cited by Mr. Bishop in the section last referred to, as far as we have had the opportunity to examine them, go no further than the authors we have mentioned. U.S. v. Jailer, etc., 2 Abb. 265; State v. Anderson, 1 Hill S.C. 327; Regina v. Dadson, 14 Jur. 1051. See also 4 Blackstone, 180.

The case of State v. Sigman, 106 N.C. 728, 11 S.E. 520; S. C., 11 S.E. 520, is relied upon as sustaining the instruction in question. In that case an officer was indicted for an assault with a deadly weapon, committed by discharging a pistol at a person accused of a misdemeanor and who had escaped from the officer's custody and was fleeing to avoid re-arrest. The officer being unable to overtake the prisoner fired upon him. He was convicted, and the judgment of the trial court was affirmed, the Supreme Court holding that the defendant was guilty of an assault, whether his intention in firing was to hit the escaped prisoner or simply to intimidate him and thereby induce him to surrender. This ruling followed as a conclusion from two propositions stated in the opinion. These are: (1.) That an officer who kills a person charged with a misdemeanor and fleeing from him to avoid arrest will at least be guilty of manslaughter. (2.) That where a prisoner "has already escaped," no means can be used to re-capture him which would not have been justifiable in making the first arrest; and that if in pursuing him the officer intentionally kills him, it is murder. But the second proposition is preceded by the following paragraph of the opinion upon which the appellees specially rely: "After an accused person has been arrested, an officer is justified to detain him in custody, and he may kill his prisoner to prevent his escape; provided it becomes necessary, whether he be charged with a felony or a misdemeanor." Citing the first volume of Bishop's Criminal Procedure. The view thus expressed does not appear to be consistent with the court's decision. Nor does it seem to be an unqualified approval of the rule as it is stated in Bishop's Criminal Procedure. As stated in the quotation made, it seems to be laid down with reference only to cases where a prisoner resists by force the effort of the officer to prevent him from "breaking away" and is killed in the struggle or affray which follows. In the case then before the court the prisoner had entirely escaped; and having been subsequently found had run some distance before he was shot at. There was no occasion therefore for deciding whether the shooting, although not in self-defense, would have been justifiable if it had been done in an effort to detain the prisoner in the officer's custody. But we are wholly unable to perceive any ground for a distinction between the latter case and that on which the court's ruling was made. In a paragraph of the opinion preceding that from which we have quoted, in speaking...