116 Tenn. 690 | Tenn. | 1906
delivered the opinion of the Court.
The record discloses the following facts:
One John. Lindsey, alias John Henry, had been convicted of the crime of arson in the circuit court of Henderson county, and sentenced by that court to serve a term in the State penitentiary for the offense. From this judgment he prayed an appeal to this court, and, pending the appeal, was confined in the county jail. He made his escape from the jail and went over into Benton county. The sheriff of Henderson county wrote to the sheriff of Benton county notifying him of the escape, and asking him to arrest Lindsey. An effort was made by the sheriff of Benton county, the defendant in error McCord, to arrest Lindsey while in the latter county, but Lindsey after firing at the officers, escaped by going
None of the defendants knew Green McCaslin, but when they entered the room were under the impression that he was John Lindsey, alias John Henry. It was
Mrs. McCaslin finally told the defendants in error that John Lindsey, alias John Henry, was not in the house, but was at the home of Henry Tettleton, who lived in a cabin on the farm. Upon receiving this information Mc-Cord apologized for the mistake, and went to the home of Tettleton, and arrested Lindsey.
The foregoing is the substance of the evidence- given by the defendants in error. The evidence of the plaintiff in error does not differ materially from what has just been said, except that he says he did not hear any demand for admission before the door was broken into or at any time until defendants in error came to his room door which opened into the hall, and he then heard them say, “If you don’t open the door I will kill yon;” that this is all he heard them say which he could understand.
Mrs. McCaslin says she heard them trying to get into the back hall door, “beating on it, saying something.” She also testifies that when the defendants got to the door of the room in which she and her husband were at the time, they said: “If you don’t open the door, we will kill you.” She further says: “I did not hear them demand admittance until after they had got into the house, and had been in the east room and had come back to our door and said: ‘If you don’t open the door, we will kill you.’ ”
The defendants in error had no warrant of arrest.
The first error concerns certain special pleas filed by the defendant. We need not consider this, as the questions raised under these pleas arise also under the objections made to the charge of the court in subsequent assignments which we shall now state.
The second assignment is that the court erred in charging the jury as follows:
“If you find that the defendants had received information that the felon, Lindsey, was at the plaintiff’s house, and they honestly believed he was in the house at the time they made the entry, that a reasonably prudent man would have been justified in so believing from the information and circumstances which they had before them; and if you further find that the defendants while so believing, went to the plaintiff’s house for the purpose of arresting the felon, Lindsey, and that the defendant gave the plaintiff notice of their intention to make such arrest, or informed him of their business there, and that the plaintiff refused to admit the defendants into his residence for such purpose, and did not inform them that the felon, Lindsey, was not there, then the defendants were justified in making an entry into the house by force, for the purpose of arresting the felon, even though' it turned out afterwards that they were mistaken and that the felon, Lindsey, was not in fact in the house at
The third assignment is that the court erred in charging the jury as follows:
“If the defendant Harris went to the door of plaintiff’s house and called out to the parties in the house, in substance, that he was an officer and wanted John •Henry, and did this in a tone sufficiently loud to have been heard by the parties inside, and then waited a sufficient time for the parties within to have responded, and they made no response within a reasonable time, then this would be notice to the plaintiff and other parties inside the house of his intention to make the arrest of John Henry or Lindsey, and this would also amount to a refusal by the parties inside to admit them for that purpose. A failure to answer such a statement within a reasonable time would be equivalent in law to a refusal to admit the defendants.”
The points made in criticism of the portion of the charge copied into the second assignment are that Lindsey had never been in the custody of defendants; they were not officers of Gibson county; they had no warrant of arrest; they were merely private citizens; the crime was not one recently committed, followed by a fresh pursuit; therefore they had- no right to enter
We think the -defendants must be treated as private persons attempting to make an arrest without a warrant.
What were their rights under the facts stated?
In order to a proper solution of the question, it will be necessary to take a brief general view of our statutory provisions upon the subject of arrest.
Shannon’s Code, sections 6978-6991, contains directions concerning the issuing of warrants of arrest.
Sections 6992, 6993, and 6994 provide that “an arrest may be made either by an officer under a warrant, [or] by an officer without a warrant, [or] by a private person that “arrests by officers for public offenses may be made on any day and at any time.and that “arrests by private persons for felony may be made on any day and at any time.” Sections 6997 to 6999, inclusive, declare the rights and duties of an officer arresting without a warrant. These are substantially the same as the powers vested in private persons, as set out below, with the exception that section 6997 provides that an officer may
The following sections set forth the circumstances under which private persons may malee arrests, viz:
“A private person may arrest another (1) for a public offense committed in his presence; (2) when the person arrested has committed a. felony, although not in his presence; (8) when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it.” Shannon’s Code, section 7002. “He shall at the time of the arrest inform the person arrested of the cause thereof, éxcept when he is in the actual commission of the offense, or when arrested on pursuit.” Section 7003. “If the person to he arrested has committed a felony, and a private person, after notice of his intention to make the arrest is refused admittance, he may break open an outer or inner door or window of a dwelling house, to make the arrest.” Section 7004. “A private person who has arrested another for a public offense, shall, without unnecessary delay, take him before a magistrate or deliver him to an officer.” Section 7005.
It is insisted, however, that these provisions apply only to cases of original arrest, and not to a recapture after one accused of crime has been in custody and has
“If a person arrested escape or he rescued, the person from whose custody he escaped or was rescued may immediately pursue and retake him, at any time and in any place within the State.” Section 7006. “To retake the party escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open any outer or inner door or window of a dwelling house.” Section 7007.
The latter sections contain everything in the Code upon the subject of arrest after escape referred to in the briefs of counsel, or that we have been able to discover after an extended and careful examination, except sections 6686, 6931, subsec. 3, and sections 7568, 7260.
These sections read as follows:
“6686. Any person lawfully confined in any county jail or in the penitentiary upon conviction for a criminal offense, who escapes therefrom, may be pursued, taken, and again imprisoned,” etc.
“7568. Whenever any convict in the penitentiary escapes therefrom it is the duty of the warden to take all proper measures for his apprehension,” etc.
“7260. If a convict sentenced to death is at large, “the court or any magistrate may issue a warrant for his apprehenson,” etc.
“6931. Justices of the peace are authorized and em-. powered . . . (3) to issue warrant for a prisoner escaped from jail.”
Such warrants may issue to any lawful officer of any county in the State. Section 6988. And when the sheriff, deputy sheriff, constable, coroner, or any other officer of any county in the State has in his hands a warrant or capias for the arrest of any person charged with the commission of a crime, it is lawful for such sheriff, deputy sheriff, constable, coroner, or other officer, to execute such process, and arrest the person so charged, in any county of the State. Section 6989. Nor is it true that the warrant may be issued only in the county in which the offense was committed; on the contrary, it may also be issued in any county in which the person sought to be arrested is found. Johnston v. State, 2 Yerg., 58. It is in itself a substantive crime to make an escape from a jail (section 6685), or from the penitentiary (section 6684, 7552, 7566).
We do not doubt that under sections 7006 and 7007 a private person would have the right to immediately pursue and recapture a person who had been lawfully arrested by him under sections 7002 to 7005, inclusive, and who had escaped from his custody. For an equal, or stronger reason we think that under these sections an officer would have the right to make such immediate pur
We are of opinion, however, that these sections (7006, 7007) do not authorize either a private person or an officer to arrest, without a warrant., a person who has escaped from jail or from custody when the pursuit is not immediate or fresh. Nor do we think that sections 7002 to 7005, inclusive, authorize any private person to make an arrest for an escape, except in those instances in which the escape itself is by law a felony. Sections 6684, 7552, 7566.
With the exception last stated, and with the further exception of immediate pursuit for recapture under sections 7006 and 7007, there is no authority conferred by our statutes tip on either an officer or a private person, without a warrant, to make an arrest for an escape.
Moreover, it is not in accord with sound policy that the authority referred to should be greater, since the invasion of the privacy of the citizen in his home is an extreme hardship, always tends to conflict and bloodshed, and may be undertaken by nefarious persons for criminal purposes. It may be added that in view of the ample provisions made for the issuance and service of warrants of arrest, above referred to, there is no danger that the administration of the criminal laws of the State will suffer by reason of the construction herein given to the statutes.
Our statutes, as we have construed them, are in some points at variance with the common law, but we need not go into that phase of the matter, as we think the legislature, in the sections which we have quoted, intended to cover the whole subject of arrest without warrant, by a private person.
[As to whether a private person, without a warrant, may break an outer or inner door or window of a dwelling house, there appears to be a distinction taken in the statutes between cases of original arrest, and those in which there is a fresh pursuit immediately upon an escápe. In the latter case it is said, the person pursuing may, after proper notice, “break open any outer or inner door or window of a dwelling house.” Section 7007. So, it is declared, in respect of an officer, in a preceding section : “To make an arrest, either with or without a warrant, the officer may break open any outer or inner door or window of a dwelling house, if, after notice of his
The difference in language upon a casual view appears to be slight, being only that between “an” and “any;” yet upon a deeper consideration it appears to be a vital distinction, viz., that between the home of the person sought to be arrested, and the home of a stranger. •
We are of the'opinion that under section 7004, a private person seeking to make an arrest for felony may break open an outer or inner door, or window, of the dwelling house of the person sought to be arrested, but not of a stranger; but that having arrested a person for a felony, such private person may, upon an attempted escape from his custody, upon immediate and fresh pursuit, break open the outer or inner door or window of any dwelling house, in which the fleeing criminal has sought refuge, that is, of the person sought to be arrested or of another, under section 7007, oh complying with the terms and conditions set forth in that section.
The same distinction appears to exist elsewhere. It is held that where an officer has reasonable cause to believe that the person named in the warrant, or a person whom he seeks to arrest on a charge of felony, is in the dwelling house of another, he has a right to search the
There is one other distinction between the right of an officer to make an arrest and that of a private citizen. This has already been referred to in general terms but will now be more distinctly noted.
It will be observed that an officer, in addition to the right conferred upon a private citizen, is given the right to arrest without a warrant, “on a charge made, upon a reasonable cause, of the commission of a felony by the person arrested.” • Section 6997, subsec. 4. In respect of private persons, the language is, “when the person arrested has committed a felony” (section 7002 [2], and, “when a felony has been committed” (section 7002
Before applying the foregoing principles to the charge of the court, we deem it proper to say that we do not think it was within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, witfiout a warrant, in search of criminals, except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest, or on immediate pursuit after arrest and escape. An opposite view and practice would lead to more violence than it would suppress, since it would foster the incursion of roving bands of strangers who might be easily counterfeited by bands of marauders.
On the principles stated, we do not think that the portion of his honor’s charge quoted under the second assignment can be sustained.
It is true the person the defendants were searching for
The second assignment of error must therefore be sustained.
The first assignment must also be sustained. This applies to certain special pleas, the fourth, fifth, and sixth, filed by defendants. The grounds on which we have sustained the second assignment necessarily lead to the conclusion that the defenses contained in these pleas were not valid ones, and that the motion to strike out these pleas should have been sustained.
The first and second assignments having been sustained, it is unnecessary to consider the third.
The judgment of the circuit court must be reversed, and the cause remanded for a new trial.