170 Ky. 474 | Ky. Ct. App. | 1916
Opinion of the Court- by
Affirming.
In August, 1915, Elmer C. Matthews was a railroad policeman in the employ of the C., N. O. & T. P. Ry. Co. He had been appointed and commissioned under the provisions of Sec. 779a, Kentucky Statutes, and as such officer was clothed with the power and authority of a sheriff upon the trains of the company or about its depots.
On the 18th day of August early in the afternoon there was made up in Cincinnati by the C., N. O. & T. P. By. Co. a freight train which proceeded across the river on its south bound journey; at Ludlow immediately across
The train at the time was going up a steep grade and running at the rate of only from four to ten miles an hour; Fleming, the brakeman, was then on the same car that Donehy and Prather were riding in and Matthews boarded the car at the northeast corner. As he did so Donehy jumped up, whereupon Matthews asked where they were going, when one of them said they were going “down the road,” and they were then informed by Matthews that they could not ride on that train; Donehy as he got up had his hand in his right coat pocket on his pistol; Matthews asked him to take his hand out of his pocket and he refused, and Prather at about that time said: “Wait a minute, he is not going to put you off; ’ ’ Matthews then advanced toward Donehy with his pistol presented at him and demanded that he take his hand out of his pocket and Donehy still refused, and when Matthews got up to where Donehy was he grabbed hold of the hand which he had in his pocket on the pistol, and struck him with his pistol on the left side of the head and Donehy with his left hand grabbed Matthews’ right hand; Fleming started to go to .the assistance of Matthews when Prather fired twice at him, whereupon Fleming, being unarmed, jumped off the car; just after he jumped off the car he heard seven, eight or ten shots, ran along the side of the train and got on a car further forward, when he looked back and saw the two negroes leaving the train going* in a westernly direction. The body of Matthews was found in the car with four bullet holes in his back and two in his right side, having been instantly killed. Several months later the two appellants were arrested and indicted charged with the murder of Matthews, and upon their joint trial were each found guilty and sentenced to confinement in the penitentiary for life, from which judgment they prosecute'this appeal.
Their defense in the lower court was an alibi, they each claiming that they were not present in the car at the time and that they were not the men who engaged in the difficulty with Matthews. It is sufficient to say on this subject that the plea was a complete failure; they
The appellants, however, are relying upon five grounds for reversal: First, because the attorney for the Commonwealth in his statement to the jury failed to state what was the plea of the defendants; second, that there was no evidence authorizing- an instruction on murder; third, that the instruction on self defense was erroneous; fourth, because of the failure of the court to give the whole law of the case; and, fifth, because the sheriff raid his deputies during the trial brought appellants into and took them from the court room handcuffed in the presence of the jury.
Section 219 of the Criminal Code of Practice requires the clerk or the attorney for the Commonwealth to read to the jury the indictment and state the defendant’s plea, and while this provision has been held to be mandatory, a substantial compliance with its provisions only is necessary. It is true that literally neither the clerk nor the attorney for the Commonwealth stated the plea of the defendants to the jury, but they themselves after the reading of the indictment by the clerk and before the statement of the Commonwealth’s attorney entered in the presence of the jury their plea of not guilty.
The purpose of this code provision is to inform the jury at the very inception of the trial the nature of the charge and the plea of the defendants, and when this has been done in the manner indicated, the code provision, while not literally followed, has been sufficiently complied with. Combs v. Commonwealth, 31 Rep. 822; Meece v. Commonwealth, 78 Ky. 586; Howard v. Commonwealth, 24 Rep. 91.
Matthews was an officer and that appellants knew him to be such is apparent; he had on his badge and they immediately after the shooting referred to him in their talk with the farmer whom they met as the detective, and in all the conversations showing admissions by them, detailed by several witnesses in the record, they referred to him as the detective or as the railroad detective. Knowing him to be a detective when he notified them that they could not ride on thht train Donehy immediately assumed towards the officer a menacing attitude by placing his hand in his pocket on his pistol, the handle of which was showing, and declined more than once to take his hand out of his pocket. Prather after the demand by the officer that Donehy should take his hand off of Ms pistol said to Donehy in the presence of the officer: “He will not put you off, ’ ’ and drew his pistol and fired two shots at the brakeman who undertook to go to the relief of the officer. Thus it is seen that they each committed an offense in the presence of the officer, one the offense of carrying a concealed weapon which he had started to draw on the officer, and the other defying the authority of an officer by saying to him in substance that he could not put them off the train and drawing his weapon, to enforce that threat and to prevent another from aiding the officer.
It is trae that there was no eye witness to the actual killing and the brakeman only saw the first two shots which were fired at Mm; but within a very few minutes the two men were seen to leave the car and ran off through the fields and immediately thereafter the dead body of Matthews was found in the car with four bullet holes in his back and two in his right side.
Even if there had been no other evidence except that of the brakeman and the finding of the body with the six bullet holes in it and their location, there would have been ample justification in submitting to the jury an instruction on murder; but in addition to this evidence there is that of some two or three other witnesses who testified to admissions made by the defendants at different times showing that they shot the decedent with his own pistol after having taken it from him and that ho begged them not to kill him.
It has long been the rule in this State that where an officer is killed while attempting to make an arrest by one. knowing him to be an officer it is not necessary to constitute the crime of murder that the slayer should have had any pctrticular malice. Dilger v. Commonwealth, 88 Ky. 550.
It is also objected that the concluding paragraph of that instruction, which said to the jury in substance-that the officer in attempting to make the arrest had the right to use such force as appeared to him to be reasonably necessary to accomplish such purpose, and that if the defendants, knowing he was an officer and attempting to arrest them, resisted arrest and in doing so shot and killed him, or aided or abetted in such shooting and killing, then they could not be acquitted on the ground of self defense.
The distinction has been frequently pointed out by this court between the rights, power and authority of an officer attempting to make an arrest for a misdemeandor in cases where there is forcible resistance by the offender and in cases where there is only an effort to escape by fleeing. Manifestly an officer has no right to wantonly ’ shoot or kill one only charged with a misdemeanor if the offender is merely trying to escape such arrest by flight; but if the offender „e armed and offers forcible resistance or threatens the officer and in connection with- such threat assumes a menacing attitude towards the officer, the offi
While the instruction in this case did not point out the distinction which has been taken in the cases referred to it could not have been prejudicial in this case for the reason that all the evidence showed that both of the appellants at the time of the attempted arrest were armed, that they resisted arrest and in such resistance drew their pistols, and in effect defied the officer.
It is unnecessary to consider this contention at length, for whether such an instruction was authorized by the evidence or not, the idea'contended for was embraced in one of the instructions given wherein the jury was told, in substance, that if they believed from the evidence that the defendants did know that Matthews was an officer and was attempting to arrest them and did not forcibly resist such arrest and that Matthews assaulted them or either of them with a pistol and that they had reasonable grounds for believing from his conduct that they or either of them were in danger of death or great bodily harm and that it was necessary or appeared to them in the exercise of a reasonable judgment to be necessary in order to avert such danger to shoot Matthews then they would find such defendant not guilty on the ground of self defense.
But in any event the statement of the evidence above given shows that there was no basis in the evidence for any such instruction.
As said in Firestone v. Rice, 71 Michigan 377, “some discretion must be reposed in an officer in making an arrest for felony as to the means taken to apprehend and safely keep the prisoner. In order to justify handcuffing a person arrested for felony it is not necessary that he should be unruly or attempt to escape, or to do anything indicating a necessity for such restraint, nor in the absence of these indications that he should be of notoriously bad character.” Also Edgar v. Barker, 96 Maryland 726.
We entertain no doubt that it is within the sound discretion of an officer in custody of criminals, taking into account the nature of the offense charged and the character and disposition of the offender, to place handcuffs on him when he is taken to the court from the jail for trial.
Judgment affirmed.