Gosczinski v. Carlson, 157 Wis. 551

157 Wis. 551 | Wis. | 1914

Siebeckeb, J.

The defendant contends that the court erred in granting tbe plaintiffs motion for a new trial for inadequacy of the damages awarded tbe plaintiff by tbe jury. Tbe argument is made by tbe defendant that tbe award of $70 damages is satisfactory to tbe defendant and should not be disturbed, because under the evidence as shown by the record on this appeal the plaintiff was not legally entitled to recover any damages, and hence tbe verdict awarding the plaintiff $70 damages should not be disturbed on tbe plaintiff’s request and against the defendant’s protest. Assuming the verdict as one in defendant’s favor, did tbe court err in ordering a new trial? Tbe claim is made that since the court held as a matter of law that defendant, in discharging his revolver under tbe circumstances shown by the evidence, entertained no purpose to shoot tbe plaintiff or indict on him any personal injury, there is no liability for tbe accidental injury resulting to tbe plaintiff from tbe shooting. This claim is based on the ground that the defendant was just!lied in doing what he did in the execution of the legal process in bis hands and in retaking tbe plaintiff into bis custody after be escaped from tbe defendant while conducting him to tbe county jail pursuant to the warrant of arrest under which be was acting. Defendant’s counsel relies on tbe provisions of sec. 4366, Stats. From tbe context of tbe provisions of tbis statute it is manifest that they are intended to apply only to justifiable homicides when necessarily committed by public officers in obedience to any judgment of a competent court, in cases of actual resistance to tbe execution of legal process, or discharge of any other legal duty, or tbe retaking of felons or arresting them when fleeing from justice. Tbe statute must be interpreted in tbe light of its contents and tbe acts to which it was clearly intended to apply. It is apparent that a public officer cannot justify tbe use of means dangerous to human life unless the law imposed it as a necessity in tbe execution of legal process. Tbe statute is declaratory of what bad been established as a rule at common law as to justifiable conduct of public officers in tbe execution of legal process. Under tbe rules of the common law officers were not justified in shooting persons attempting to escape from their custody in case of arrests for a misdemeanor or under civil warrants, for tbe purpose of compelling submission to their authority and retaking them into custody. In U. S. v. Clark, 31 Fed. 710, Mr. Justice BeowN declared tbe common-law rule on tbe subject in tbe following language:

“The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take bis life, if it becomes absolutely necessary to do so to prevent bis escape; but be may not do tbis if be be charged simply with a misdemeanor; tbe theory of tbe law being that it is better that a misdemeanant escape than that human life be taken.”

In tbe case of Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, tbe court entered upon an elaborate discussion and extensive examination of tbe subject in an action wherein tbe defendant was sued for damages for an unjustifiable shooting and killing of a person charged with tbe commission of a misdemeanor to prevent bis resistance to and escape from arrest. After a thorough review of the adjudications and the text-writers the court states the rule of the ■ common law to be:

“In making the arrest or preventing the escape the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape j but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself.”

The same rule was applied in State v. Sigman, 106 N. C. 728, 11 S. E. 520, where the officer was- held criminally liable for an assault with a deadly weapon, for discharging a pistol at a person arrested for' a misdemeanor who had escaped-and was fleeing to avoid being retaken. The general rule is that shooting at a person in an endeavor to arrest or retake a person who has escaped from arrest for a misdemeanor is excessive force constituting an assault. The following cases and the cases therein cited support this rule: Brown v. Weaver, 76 Miss. 7, 23 South. 388, 42 L. R. A. 423; Reneau v. State, 2 Lea, 720; Clements v. State, 50 Ala. 117; Sossamon v. Cruse, 133 N. C. 470, 45 S. E. 757.

Reason and authority make this rule applicable in cases of the execution of civil warrants for the arrest of persons. We are of the opinion that sec. 4366, Stats., does not abrogate this common-law rule on the subject here under consideration. We conclude that the trial court properly held that when the defendant discharged his revolver in a direction so as to hit the plaintiff he did so at his peril; that, under the circumstances it was not justifiable and constituted an assault, and hence he is liable in damages to the plaintiff for the injnries resulting from the shot. Under this view it was proper for the trial court to award a new trial on the ground that the amount awarded is inadequate. The record is silent as to the defendant’s election to permit judgment to be entered against him for the amount fixed by the court and no question is raised respecting the action of the trial court in tbis respect. The record presents no other material question that need be considered on this appeal from the order granting a new trial in the action.

By the Court. — The order appealed from is affirmed, and the cause remanded for further proceedings according to.law.