Conraddy v. People

5 Park. Cr. 234 | N.Y. Sup. Ct. | 1862

• By the Oowrt, Emott, J.

The argument for the prisoner proceeds upon the assumption that the only question for the jury at the trial was, whether a felony had actually been committed by O’Neil, whose life the prisoner took. This is an error. The rule of the common law undoubtedly is, that if a felony has been committed, an officer will be justified even if he take the life of the offender, in arresting him or preventing his escape, provided there is an absolute necessity for his doing so, while it is not so in the case of an arrest for a misdemeanor. (3 Inst, 224; Foster Cr. L., 271; 1 Hawk. P. C., 6,1, ch. 28, § 11; 4 Bl. Com., 180 ; 1 East Cr. L., ch. 5, § 66, p. 298.) The Revised Statutes preserve the same rule. (2 R. S., 660, §§ 2, 3.) When no process has been issued, a homicide can only be justified, even by an officer, by showing the actual commission of a felony, and that there was a positive necessity to take life in order to arrest or detain the felon. When, therefore, a homicide is committed by an officer who is acting without a warrant, it is a material question whether the person killed had committed a felony, but it is equally material to determine whether it was in fact, necessary for the officer to take his life in order to effect his arrest or prevent his escape. At the trial the prisoner’s counsel requested the court to instruct the jury that if the prisoner believed, upon reasonable grounds, that the deceased had been guilty of a felony, and also upon like reasonable grounds that he would otherwise escape from custody, the killing was justifiable. So I understand the proposition of the counsel at the trial and his argument before us. Such is not the rule of law. There is but- one case in which the law justifies the taking of life upon the belief or apprehension of the,person accused himself, and that is the case of self-defense. A man may act in his own defense upon what he had reasonable ground to consider was imminent danger or urgent necessity, and he will be justified, although his apprehensions were in reality mistaken. But in taking life to prevent the commission of crime upon another, or to prevent the escape or effect the arrest of a person accused of crime, there must be the actual necessity of such homicide, and not merely reasonable grounds to suppose that it was necessary; and this must be shown to the jury.

The propositions submitted to the court on the trial seem to me to be open to the objection, in every instance, that they called upon the jury to determine whether the homicide was justifiable, by deciding whether or not the prisoner had reasonable ground to suppose, as things appéared to him, that the deceased would escape if he did not shoot him. This, as I have said, would not have been enough. The prisoner was bound to show the fact, and not merely the appearance to him, of a necessity for what he did. The jury are to judge of the actual necessity for his act, and not of the appearance to him.

If the learned judge at the trial went far enough in his charge to raise the question, which -was argued at the bar, as to when an officer would be justified in taking the life of a person whom be had in custody, and who would otherwise escape, yet we are of opinion that no error was committed of which .the prisoner can complain. The judge instructed the jury that, assuming that the prisoner had reasonable ground to believe that the deceased had been guilty of felony, and had arrested him therefor, and that the prisoner attempted to escape, and there was reasonable ground to believe that he would otherwise escape, the prisoner was not justified in discharging his pistol at the deceased, if that discharge produced his death. This was equivalent to stating that the prisoner was not justified in taking the life of the deceased to prevent his escape, upon the state of facts which has been given.

The prisoner, although an officer, was acting without a warrant. ■ Mo warrant had been issued by or to any one against the deceased. Mor had he committed any offense in the view or presence of the officer. Under such circumstances, to justify taking life, even if the jury were satisfied of the necessity of the homicide to prevent an escape, it must be shown that a felony had actually been committed. The distinction is marked between cases of misdemeanor and of felony. It is only in the latter that a homicide is justifiable by any person acting without a warrant, even when it is the only means to prevent the escape of the criminal. When no warrant is out for the offender, even an officer cannot take his life to prevent his escape upon his own belief of the commission of a felony, however reasonable ground he may have for such a belief. If he act without a warrant, he must be prepared to show the fact of the felony, in order to justify taking the life of a person whom he is endeavoring to arrest or to secure. The counsel for the prisoner excepted to the .statement by the presiding judge to the jury that, in his opinion, the evidence fairly warranted the conclusion that the deceased had been guilty of a misdemeanor, and not of a felony. The judge added, that the jury were to judge of the correctness of the conclusion. It was perfectly proper, for the judge to state his view of the facts in proceeding to lay down the law to the jury; and the qualification that the jury might judge of the correctness of his statement was probably unnecessary. It has been repeatedly held that no exception can be taken to the expression of an opinion by the court upon a question of fact. I have already said that the learned counsel for the prisoner is in error in supposing that this particular question is the only, or the most material, question of facts in the case.

It might, however, be sufficient to dispose of this exception to say, that we find no evidence upon which the jury could properly have come to the conclusion that O’Neil, the deceased, had been guilty, or could reasonably have been supposed to have been guilty, of anything more than a misdemeanor.

There was no evidence of the commission of a felony; and the judge stated the facts in the only way in which the jury could have been authorized to find them.

There was no error committed upon this trial of which the prisoner can complain; and his conviction must be affirmed.