136 S.E. 375 | N.C. | 1927
Civil action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect or default of the defendant.
On motion of the defendant, made at the close of plaintiff's evidence, judgment was entered as in case of nonsuit, from which the plaintiff appeals, assigning error. The facts are these: On 1 June, 1925, plaintiff's intestate, Watts Holloway, was tried in the recorder's court of the city of Winston-Salem, convicted of carrying a concealed weapon in violation of law, and sentenced, under a special statute, to six months on the county roads of Forsyth County. He was assigned to Camp No. 1, over which the defendant was superintendent and guard. The defendant was also a deputy sheriff of the county. Two days thereafter, on 3 June, while working one of the roads of the county, the defendant ordered the guards in charge to take the force of convicts, about forty in number, including plaintiff's intestate, to a place of safety until a blast of dynamite could be discharged. On returning to their work, following the explosion of the dynamite, Watts Holloway attempted to escape by running across the field and into a thicket about one hundred yards away. One of the guards, F. M. Reid, called three or four times to the plaintiff's intestate to halt, and shot at him as he ran away, but missed him. The defendant thereupon ran out by the side of the road, called to plaintiff's intestate to halt, which he failed to do, and just as he was entering the thicket, running at full speed, the defendant shot him in the back and killed him almost instantly. The father of the deceased brings this action as administrator to recover of the superintendent and guard of the convict camp damages for the death of his son, which he alleges was caused by the wrongful act, neglect or default of the defendant. C. S., 160.
The only question presented by the appeal is whether plaintiff, under the evidence adduced, is entitled to have his case submitted to the jury. We think he is. Suell v. Derricott,
Let it be observed at the outset that plaintiff's intestate was not a felon, nor was he offering forcible resistance to the guards or undertaking to escape by overpowering them. He was a misdemeanant attempting to escape by flight, without endangering the life or limb of those who had him in lawful custody at the time.
It is provided by C. S., 7745, that when a convict, or several combined, shall offer violence to any officer, overseer or guard, or other convict, or attempt to do any injury to the building or workshops of the State prison, or shall attempt to escape, or shall resist or disobey any lawful command, the officer, overseer or guard shall use any means necessary to defend himself, to enforce the observance of discipline, to secure the person of the offender and to prevent an escape.
Under this enactment it is no doubt the law that a guard or overseer of penitentiary convicts would be justified in using any means necessary to prevent an escape, even to the taking of the convict's life, if need be.Jackson v. State,
By the common law an officer, in a case of felony, was permitted to use all force necessary to capture the felon, even to slaying him when in flight. In the case of a misdemeanor, however, the rule was different. The officer could defend himself, if resisted, even to the taking of life, but if the offender were simply fleeing and not resisting, he had no right to kill. It was thought that to permit the life of one charged with a mere misdemeanor to be taken, when not resisting, but only fleeing, would, aside from its inhumanity, be productive of more evil than good.
The reason for the distinction is obvious. Ordinarily, the security of person and property is not endangered by a misdemeanant being at large, while the safety and security of society require the speedy arrest and punishment of a felon.
Bishop says: "The justification of homicide happening in the arrest of persons charged with misdemeanors, or breaches of the peace, is subject to a different rule from that which we have been laying down in respect to cases of felony; for, generally speaking, in misdemeanors it will be murder to kill the party accused for flying from the arrest, though he cannot otherwise be overtaken, and though there be a warrant to apprehend him; but under circumstances, it may amount only to manslaughter, if it appear that death was not intended. . . .
"But in misdemeanors and breaches of the peace, as well as in cases of felony, if the officer meet with resistance and the offender is killed in the struggle, the killing will be justified." 2 Bishop on Criminal Law, secs. 662-3.
The same rule may be found in the works of the other common-law writers.
Hale in his Pleas of the Crown, p. 481, says: "If a gaoler be assaulted by his prisoner, or if the sheriff or his minister be assaulted in the execution of his office, he is not bound to give back to the wall; but if he kills the assailant, it is in law adjudged se defendendo, though he gives not back to the wall; the like of a constable or watchman, for they are ministers of justice, and under a more special protection in the execution of their office, than private persons.
"But if the prisoner makes no resistance, but flies, yet the officer, either for fear that he, or some other of his party will rescue the prisoner, strikes the prisoner, whereof he dies, this is murder, for here was *188 no assault first made by the prisoner, and so it cannot be se defendendo in the officer.
"And here is the difference between civil actions and felonies. If a man be in danger of arrest by a capias in debt or trespass, and he flies, and the bailiff kills him, it is murder; but if a felon flies, and he cannot be otherwise taken, if he be killed, it is no felony, and in that case the officer so killing forfeits nothing, but the person so assaulted and killed forfeits his goods."
It was suggested on the argument that a distinction should be made between a case where a person is attempting to avoid arrest, and where he is endeavoring to escape after arrest. If, however, the offender be in flight, and is offering no resistance to the officers at the time, then we apprehend the law to be the same whether he flee to avoid arrest or to escape from custody. Bishop on Criminal Law, sec. 664; Wharton on Homicide, secs. 212-214.
Forcible resistance to the execution of legal warrants, whether by felons or misdemeanants, is not allowed in this jurisdiction. As against those who defy its decrees and threaten violence to its officers, the law commands that its writs be executed, peaceably, if they can; forcibly, if they must. S. v. Garrett,
Animadverting generally on the subject in S. v. Bryant,
"Extreme measures, therefore, which might be resorted to in capital felonies, would shock us if resorted to in inferior felonies. But, in any case where extreme measures are resorted to in making arrests, it must appear that they were necessary, and that the felon could not be otherwise taken. It should be noted, also, that the cases where extreme measures have been justified have usually been cases where the felon has actuallyresisted. No man would attempt to arrest a felon if he were not allowed the advantage of overcoming the resistance without subjecting himself to peril. He need not, therefore, engage with the felon on equal terms, but may overcome resistance with superior force, even to the extent of killing the felon if it be necessary. Yet it is said: `It behooveth them to be very careful that they do not misbehave themselves in the discharge of their duty, for if they do, they may forfeit this special protection.' Foster, ch. 8, sec. 18, p. 319.
"In the quotation from Hale, supra, it is said that killing the felon may be justified if he `resists or flies.' This would seem to put resistance and flight upon the same footing. But this must be understood with some modification. In case of resistance and conflict, the resistance must be overcome then and there, because, not only is the arrest of the felon involved, but the safety of him who is rightfully making the arrest. But ordinarily there is not the same urgency in case of flight; for, although he be not arrested then and there, yet he may be arrested at another time and place. So it would seem that, at any rate, there ought to be pursuit, or a certainty of escape, before killing could be justified; else how does it appear that he `could not be otherwise arrested?'" See, also, in this connection, S. v. Stancill,
It is universally held that an officer has no right to kill one who merely flees to avoid arrest for a misdemeanor or to effect an escape from such arrest, even though it may appear that by no other means can the accused be taken or recaptured. 13 R. C. L., 875. It is better that he be permitted to escape altogether than that his life be forfeited, while unresisting, for such a trivial offense. Caldwell v. State,
There would seem to be no difference in principle between the duty of an officer, and the means he may employ, to hold a misdemeanant, after arrest and before conviction, and the duty of a guard to prevent his escape after he has been convicted and committed to his custody. Reneau v. State, 2 Lea (Tenn.), 720, 31 Am. Rep., 626; U.S. v. Clark, *190
31 Fed., 710; Thomas v. Kinkead,
True, in S. v. Sigman,
In Reneau v. State, 2 Lea (Tenn.), 720, the facts were that one Vineyard Thomas was committed to jail for failure to pay a fine and cost in assault and battery, a misdemeanor, and in the execution of a mittimus, issued by the justice of the peace for the purpose, Reneau, a constable, started with Thomas to the county jail, accompanied by another as guard. On the route Thomas started to run and make his escape. Neither officer pursued, but after commanding him three times to halt, and not being obeyed, Reneau fired two shots at Thomas, one of which took effect, killing him almost instantly. The officer was tried and convicted of an unlawful homicide, manslaughter, and this was affirmed on appeal.
Speaking to the subject in Brown v. Weaver,
It is provided by C. S., 4404, that if any person shall break prison, being lawfully confined therein, or shall escape from the custody of any superintendent, guard or officer, he shall be guilty of a misdemeanor. This, it appears, is only declaratory of the common law, so far as misdemeanants are concerned, and has the effect, as held in S. v. Brown,
As we have seen, at the common law, with its regard for human life, an officer attempting to arrest an offender for a misdemeanor, or to prevent his escape after arrest, was not permitted to kill when the accused was simply fleeing. And it is not believed that the law in this respect has lost any of its humanity. We have found no expression of *192 the law-making body in this State which would seem to make it more rigorous or to restrain its mercy. C. S., 4393, was not intended to have such effect. Certainly, without legislative authority, the severity of a remote age ought not to be exceeded in dealing with those convicted only of small offenses.
The suggestion that the defendant could not tell whether plaintiff's intestate was a felon or a misdemeanant, and that he acted in good faith, thinking that he had a right to shoot, cannot excuse him, if, in fact, he had no such right under the law. Campbell v. People, 55 Col., 302, 133 P. 1043. It was no fault of plaintiff's intestate that the defendant failed to observe the class of criminals to which he belonged. By C. S., 7730, it is made the duty of the several judicial officers of the State, in assigning any person to work the public roads of any county, to designate in each judgment that such as may be convicted of a felony shall wear felon's stripes, and such as are convicted of a misdemeanor shall not wear felon stripes. And by C. S., 7731, it is made unlawful for any superintendent of convicts, or other person in authority, to work persons convicted of a felony in other than the uniform of a felon, or to clothe a person convicted of a misdemeanor in the uniform of a felon. No doubt, one of the purposes of the Legislature in enacting these statutes, and requiring that felons and misdemeanants be dressed differently, was to enable those having them in charge to distinguish at a glance the class to which each belongs. Such measures should be employed to secure misdemeanants, assigned to work on the public roads, as will enable the guards to hold them in custody without resorting to unlawful means.
There was error in entering judgment as of nonsuit. This will be reversed and the cause remanded for trial before a jury.
Reversed.