170 Ill. 527 | Ill. | 1897
delivered the opinion of the court:
Did the court err in the instructions given on behalf of the People?—or, in -other words, was the law properly presented to the jury, as applied to an officer whose duty it was to prevent breaches of the peace?
Paragraph 340 of the Criminal Code (Hurd’s Stat. 1895, p. 571,) provides: “It shall be the duty of every sheriff, coroner, constable, and every marshal, policeman or other officer of any incorporated city, town or village having the power of a sheriff or constable, when any criminal offense or breach of the peace is committed or attempted in his presence, forthwith to apprehend the offender and bring him before some justice of the peace, to be dealt with according to law; to suppress all riots and unlawful assemblies,, and to keep the peace, and without delay to serve and execute all warrants, writs, precepts and other process to him lawfully directed.” And paragraph 342 provides: “An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.”
The defendant attempted to prove his duties as marshal, but the court, on objection by the People, refused to permit it and sustained the objection. The statute expressly defines the duties of a marshal, and, being the law of the State, it was unnecessary to prove his duties. But he had the right to have the jury properly instructed on the question. Twenty-two instructions were given on the part of the People, and four are particularly objected to as erroneous and misleading. The ténth instruction is in the following language:
“And in this case, if you find, from the evidence, beyond a reasonable doubt, that the defendant went into the back yard behind the saloon of John Workman, of Brooklyn, to where the deceased was, and provoked and brought on a difficulty with the said Milas Bradshaw, in which he, the defendant, voluntarily entered, and in which he used a deadly weapon and killed the said Milas Bradshaw, then you are instructed that the defendant could not excuse said killing on the ground that it was necessary for Mm to do said killing in order to prevent the said Milas Bradshaw from committing a great bodily injury upon him or taking his life, and you should find the defendant guilty.”
The defendant was an officer whose duty it was to preserve the peace. The official character of the officer is pertinent in determining the legal relations and duties of the person killed and the person killing, with respect to each other, and thus characterizing their acts at the time of the killing. In this instruction the jury are told that if the defendant went where the deceased was and provoked and brought on a difficulty with him, into which he voluntarily entered,—regardless of the fact that he was an officer called to preserve the peace and that the difficulty was broug'ht on by his attempt to keep the peace,—they must find defendant guilty. This instruction was erroneous and misleading in view of the testimony in the case. He did not go there voluntarily, but was called to quell a disturbance between the deceased and the woman, Jennie Williams. He was a peace officer, and under the law could arrest without warrant for a criminal offense committed in his presence, or if a criminal offense had in fact been committed and he had reasonable ground for believing that the person to be arrested had committed it. In the case of Shanley v. Wells, 71 Ill. 78, which was an action of trespass for assault and battery and false imprisonment by the defendant, a policeman of the city of Chicago, this court said (p. 82): “In Main v. McCarty, 15 Ill. 441, it was held that the power to arrest without warrant for breaches of the peace or threats to break it, exists in cases where the act was not done or threat uttered in the presence of the officer, when the charg'e is freshly made and the officer was required to make the arrest.” See, also, Cahill v. People, 106 Ill. 621.
The fifteenth instruction given on behalf of the People is as follows:
“A person when assailed is required to decline the combat in good faith, if by so doing he could put himself out of danger, and use all means that would be adopted by reasonable men to procure their safety under similar circumstances; and he has no right to take the life of another unless it is actually or apx>arently necessary, and the necessity, real or apparent, must be so pressing as to exclude all other reasonable means of safety before he will be justified in slaying his assailant.”
Here the jury are told that “a person when assailed is required to decline the combat in good faith, if by so doing" he could put himself out of danger, and use all means” to procure his safety. Is it true that an officer whose duty it is to preserve the peace is required to decline a combat when resisted, and should put himself out of danger? Clearly not. The court should give the law as applicable to the facts in evidence in the case. An officer lawfully in the discharge of his duty would be protected where a different rule would prevail as to private individuals. In 1 Russell on Crimes (sec. 3, p. 447, Sharswood’s 4th Am. ed.) the author says: “Ministers of justice, as baliffs, constables, watchmen, etc., while in the execution of their offices are under the peculiar protection of the law,—a protection founded in wisdom and equity and every principle of justice, for without it the public tranquillity can not possibly be maintained or private property secured, nor, in the ordinary course of things, will offenders be amenable to justice. For these reasons the killing" of officers so employed has been deemed murder of malice prepense, as being" an outrage willfullyLcommitted iu defiance of the justice of the kingdom.” The same author, on page 547, says: “Amongst the acts done by permission of the law, for the advancement of public justice, may be reckoned those of the officer who, in the execution of his office, either in a civil or criminal case, kills a person who assaults or resists him. The resistance will justify the officer in proceeding to the last extremity. So that, in all cases, whether civil or criminal, where persons have a right to arrest and imprison, and, using the proper means for that purpose, are resisted, in so doing they may repel force with force and need not give back, and if the party making resistance is unavoidably killed in the struggle this homicide is justifiable.” The instruction was clearly erroneous in view of all the facts in the case, and was prejudicial to the defendant.
The sixth instruction on the part of the People is as follows:
“And although the jury may believe, from the evidence, that the opprobrious epithets were used by the deceased to the defendant, yet if the jury further believe, from the evidence, that the defendant immediately revenged himself by the use of a dangerous and deadly weapon in a manner likely to cause the death of the said Milas Bradshaw, and did thereby cause his death as charged, then the defendant is guilty of murder, and the jury should so find by their verdict.”
The last clause of this instruction was condemned in Panton v. People, 114 Ill. 505, where this court said (p. 509): “The last clause of the second above instruction was wrong in saying, ‘and you should find him guilty of murder.’ Under the indictment for murder a defendant may be found guilty of manslaughter, and the jury here should have been left free to find in that respect, without being directed by the court how they should find. The court should have said no more in such respect in the instruction than that the jury should find the defendant guilty.” The direction by the court in the case at bar was erroneous for the same reason.
.For error in giving the tenth, fifteenth and sixteenth instructions on the part of the People the judgment of the circuit court will be reversed and the cause remanded for another trial.
Reversed and remanded.
