Village of Barboursville ex rel. Bates v. Taylor
| Decision Date | 08 May 1934 |
| Docket Number | 7860. |
| Citation | 174 S.E. 485,115 W.Va. 4 |
| Parties | VILLAGE OF BARBOURSVILLE ex rel. v. TAYLOR et al. BATES |
| Court | West Virginia Supreme Court |
Submitted April 17, 1934.
Syllabus by the Court.
1. Where a statute (Code 1931, 61-7-1) prohibits carrying about the person "any revolver or other pistol, dirk, bowie knife, slung shot, razor, billy, metallic or other false knuckles, or other dangerous or deadly weapon of like kind or character," an article planned and made for a weapon, not named in the statute, is a dangerous weapon within the statutory meaning if in its intended or readily adaptable use it is likely to produce death or serious bodily injury. If it be of that nature, it is of like kind and character to those enumerated in the statute.
2. Whether a "fountain pen tear gas gun," made of moderately heavy metal, five and one-fourth inches in length and weighing one and six-tenths ounces, primarily intended to fire a .38 caliber shell loaded with a small amount of gunpowder and a tear gas producing powder is a dangerous or deadly weapon within the meaning of the statute inhibiting the carrying of such weapons, is a question of law which must depend upon a full showing not only of the probable effects of the firing of such charges from the gun, but, as well, its adaptability for firing other charges, and its general potentialities.
3. Sureties on a public official's bond conditioned for the faithful performance of his duties are liable for the unlawful conduct of the official done under color or by virtue of his office.
4. A peace officer in making an arrest is presumed to act in good faith as to the extent of the force employed by him, and is primarily the judge of the force to be used under the circumstances. Though, ordinarily, his conduct is ultimately a questio n of fact for jury determination, it must be weighed in the light of the attending circumstances and of the presumption that he was acting in good faith.
5. Where, in a civil action, a peace officer is charged with having employed excessive force in making an arrest and thereby causing physical injury to the party arrested (plaintiff in the action), it is prejudicial error for the trial court to give to the jury, at the instance of the plaintiff, a binding instruction directing them to find for the plaintiff if they believed from the evidence that the plaintiff was injured by the discharge of a tear gas gun deliberately fired by the officer, that the plaintiff was not resisting arrest and did not by his conduct cause the accidental firing of the gun, and that in discharging the gun the officer used more force than was reasonably necessary under the circumstances; but ignoring the question of the bona fide judgment of the officer as to the amount of force which at the moment he believed to be reasonably necessary.
Error to Circuit Court, Cabell County.
Action by the Village of Barboursville, on the relation of Ernest Bates, against Sam Taylor and another. To review an adverse judgment, the defendants bring error.
Judgment reversed, and cause remanded for a new trial.
Peyton Winters & Hereford and W. T. Lovins, all of Huntington, and R. E. O'Connor, of Charleston, for plaintiffs in error.
W. H Daniel and Perry & Perry, all of Huntington, for defendant in error.
Sam Taylor and B. L. Osburn, defendants, prosecute this writ of error to a judgment of the circuit court of Cabell County based on verdict against them for $1,500.00 in favor of the Village of Barboursville, which sues for the benefit of Ernest Bates hereinafter denominated plaintiff.
Taylor was sergeant and tax collector of the village. He executed bond in pursuance of requirements of Code 1931 6-2-11, and 8-4-5, in the penal sum of $3,500.00 with Osburn as surety, conditioned for the faithful performance of his official duties. This action is on the bond. The grievance is that Taylor, in arresting Bates for drunkenness and disorderly conduct, fired a small tear gas gun near his face and injured him so severely that he lost the sight of his left eye.
By statute, it is unlawful for any person, without a state license therefor, to carry about his person a revolver or other pistol, dirk, bowie knife, slung shot, razor, billy, metallic or other false knuckles, or other dangerous or deadly weapon of like kind or character. Code 1931, 61-7-1. By section 5 of said article and chapter, police officers and certain other enumerated officers are excepted from the aforesaid inhibition, provided such officer shall have given bond in the penalty of not less than $3,500.00, conditioned for the faithful performance of his duties. It is further provided that he shall be liable on his official bond "for the damages done by the unlawful or careless use of any such weapon or weapons, whether such bond is so conditioned or not." If the tear gas gun used by Taylor was a dangerous or deadly weapon within the purview of the statute, and if he used it unlawfully or carelessly, there undoubtedly would be liability on his bond for the injury inflicted.
In both the trial court and this Court the plaintiff affirmed and the defendants denied that Taylor had used a dangerous or deadly weapon in effecting the arrest of the plaintiff. Because the parties have thus emphasized this phase of the case, we give it full consideration though we recognize that there may be ultimate decision of the case on retrial independently of this feature.
The implement employed by Taylor is denominated a "fountain pen tear gas gun." It has the general structural appearance of an ordinary fountain pen. It is made of moderately heavy metal, is five and one-fourth inches in length, and weighs one and six-tenths ounces. By unscrewing, it comes apart at the middle and permits the insertion into the barrel of a .38 caliber cartridge. Within the base or stock of the implement is a spring trigger arrangement which is cocked by pulling a plunger. After the trigger is set, the plunger recedes so that the fountain pen appearance is not impaired. The instrument is fired by pressing a small button on the side of the stock; this releases the trigger and drives a firing pin into a cap in the base of the cartridge. When Bates was injured Taylor had used a cartridge loaded with a small amount of gunpowder held in place by a light pasteboard wad. On top of this was the powder which generated the tear gas, likewise held in place by a thin pasteboard cap or wad. It is in evidence that an implement of the sort described will project powder or tear gas from fifteen to twenty feet.
Is a "fountain pen tear gas gun," such as is here described, a dangerous or deadly weapon within the meaning of our statute regulating the carrying of such weapons? Obviously, in the use for which it was intended it is not deadly. Is it inherently dangerous?
Whether an implement used in a homicide or an assault was a dangerous or deadly weapor may be a question of fact for jury determination. The instrument employed may or may not be a dangerous weapon, depending upon the circumstances of its use. 1 Wharton's Crim. Law (12th Ed.) p. 1146. But where the offense charged is the unlawful carrying about the person of a dangerous or deadly weapon, the question of whether a particular instrument comes within the inhibited category is a legal problem to be decided by the court. 8 Ruling Case Law, p. 290; Bishop on Statutory Crimes, § 320; State v. Hall, 20 Mo.App. 397; State v. Page, 15 S.D. 613, 91 N.W. 313.
In approaching such problem, there are fundamental principles for judicial guidance. The statute against carrying dangerous or deadly weapons is intended to proscribe the carrying about the person of such instruments as are dangerous per se-inherently, intrinsically, characteristically. There are two classes: (1) Articles intended as weapons, such as revolvers, billies, dirks and metallic knuckles; and (2) articles the primary use of which is not as weapons but which are readily adaptable to that use, as for example, razors (named in the statute) and butcher knives (not named). An article specified in the statute is denominated inherently dangerous, eo nomine. An article not specified in the statute, but planned and made for a weapon, is dangerous or deadly within the statutory meaning if in its intended or readily adaptable use it is likely to produce death or serious bodily injury. If it be of that nature, it is of like kind and character to the weapons enumerated in the statute. The mere possession of a dangerous or deadly weapon about one's person, without a license therefor is an offense. An article made and intended for a weapon is not to be classed as inherently dangerous or deadly because it is capable of producing serious injury or death, but the classification is to be based on a consideration of whether in the use for which it was intended or to which it is readily adaptable it is likely to produce death or serious bodily injury. Clemons v. State, 8 Okl. Cr. 452, 128 P. 739; Clemons v. State, 48 Fla. 9, 37 So. 647; People v. Lopez, 135 Cal. 23, 66 P. 965; State v. Bowles, 146 Mo. 6, 47 S.W. 892, 69 Am.St.Rep. 598.
A weapon that has caused death may be...
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