83 Ky. 142 | Ky. Ct. App. | 1885
delivered the opinion of the court.
The appellant, James Creighton, was indicted, tried, and convicted of manslaughter, for the killing of one Ambrose Wilson, and sentenced to confinement in the State prison for twenty-one years.
The defense claimed that the deceased assaulted the accused, and the latter, in resisting the assault, used no more force than was necessary to protect his own person from bodily harm. The prosecution attempted to prove that the deceased, Wilson, at the time he was shot, was the town marshal óf Sadieville, and, as snch, had the right to arrest and.
The appellant denied that the deceased had the .right to arrest him for the reason, in the first place, that he was not about to commit a breach of the peace; and, secondly, that the deceased was not town marshal, and, therefore,'had no right or power to arrest him.
If the deceased was town marshal the appellant had no right to resist the arrest, but should have .allowed himself to be taken charge of by the officer, and made his defense before the justice instead of taking the law into his own hands; and if the • deceased was not an officer de facto or de jure, the ..accused had no right to use more force than was necessary to protect himself from the assault of the deceased, and certainly no right to take the life of the deceased, unless it was necessary to save his own life or his person from great bodily harm. The defense had the undoubted right to show that the ■deceased, in attempting to arrest him, was acting without any authority; and that being a fact in issue, the court should have determined the question, and not the jury, as to the right of the deceased to make the arrest. Whether the facts constituted the deceased a peace officer was with the judge and not the jury; and if there had been suf■.ficient evidence of the right of the deceased to act
The trouble arising in this case springs from the objection made by the defense, that no instruction •should have been given by which the right of the accused to resist the arrest was, or might have been, •excluded from the consideration of the jury.
It appears from parol testimony that the deceased had been elected marshal of ths town, but that he failed to qualify, or to attempt to qualify, as such in the mode provided by law.
Deputy marshals were sometimes appointed without any authority under the charter of the town, and the deceased was sworn in, at one time upon .the street, to act as marshal for one week, or for •a shorter time. The deceased seems to have been recognized as marshal of the town, and on these facts it is argued that he was an officer de facto, although not an officer de jure, and had the right to .arrest the accused.
By section 10 of chapter 81, General Statutes, “no officer, from whom a covenant is required, shall enter ■upon the duties of his office until the same is given;” and by section 12, of the same chapter, it is provided that: “If the official bond is not given, and the oath ■of office taken, within thirty days of the time when .the officer was elected, or received notice of his ap
There was no warrant or authority from any justice or conservator of the peace commanding the deceased to make this arrest; and his voluntarily-assuming the duties of a town marshal gave him no such power, and while his acts as an officer may have been sustained, so far as they affected the-rights of third persons — and this is questionable— if he had been sued by the accused for an assault-upon his person, in his attempt to make the arrest, his acting in an official capacity would have afforded. Mm no protection.
He had not even received a certificate of his election, and there is no pretense that he ever attempted to qualify as required by law, but, on the contrary, was acting as an officer when the office was made-vacant by reason of his failure to qualify; and when, by the provisions of1 the statute, he was ineligible to fill the position for two years. He, therefore, had no more right to make the arrest, because-he believed a breach of the peace was about to be-committed in his presence, than a private individual had, and the case should have been tried without, reference to his having acted in an official capacity.
If the deceased had executed his bond and entered upon the discharge of his duties as marshal without taking the oath, being otherwise eligible, this would have made him an officer cle jure, or certainly his qualifications could not be questioned until some
An officer de facto is one who discharges the duties of an office. under color of title. His official acts are binding on third persons, but not valid in his own behalf; and Mr. Bishop says that one may be indicted for assaulting an officer de facto, although the authorities are conflicting. In the case, of The People v. Hopson, 1 Denio, 574, the accused,, when indicted for assaulting a constable who had .not taken the oath of office, or given security, was. denied the right of showing that the constable was. not a legal officer, upon the ground that the Commonwealth (a third party) was complaining and not the constable; and yet it is in substance held in that case, that if the constable had been sued for the attempt to make the arrest, or had himself sued for the assault, his acting in an official capacity
When one claims not only the right to discharge ■the duties of an office, but asserts the right of taking into actual custody the person of the citizen, •without any warrant of authority, and because, in '.his judgment alone, the party should be arrested, he acts at his peril. He is required to know, before he takes such action, that his right to do so is unquestioned.
Nor does it necessarily follow that one assuming the duties of an office, or exercising the authority of an officer, thereby - makes himself an officer de facto; but the action of those who have color of
Judgment reversed, and cause remanded for a new-trial consistent with this opinion.