The indictment charges that the defendant did maliciously and feloniously cut, stab and wound one John Waugh, a sergeant of the town of Marlinton, while the latter was attempting to place him, under arrest for being drunk and disorderly, with the intent to then and there maim, disfigure, disable and kill the said Waugh.
Upon the trial, upon his plea of not guilty, the jury found the defendant guilty of unlawful, but not malicious, wounding, as charged in the indictment. TJpon this verdict the court below pronounced the judgment complained of, that the defendant be confined in the penitentiary for the period of three years, at hard labor, and to be further deаlt with according to law.
In his petition to this Court for the writ of error allowed him, petitioner alleges numerous errors committed on the trial, but no oral argument was made or printed brief filed on his behalf on the final hearing here. The attorney general filed a brief on behalf of the state, and the сase, thus presented, was submitted for decision.
Upon the trial below there was substantially no conflict in the evidence, and there is practically but one question, ■ a question of law, presented by defendant’s instructions to the jury numbered • three and four, rejected, presented for decision. Thеse instructions, poorly drawn, would have told the jury, substantially, number three, that if they believe from the evidence that Waugh was attempting to arrest the defendant without a warrant or other proper authority, defendant had the
The facts proven in brief were, that Waugh at the time of the alleged offense, at the request of defendant’s wife, entered the home of defendant by the kitchen door, the witness Denni-son accompanying him to the door,.and being informed, first by Dennison before entering, and after entering by defendant’s wife, that she wanted him to do something with defendant, because she was afraid he would do something before morning, he went .on into the adjoining room where Woods was quietly sitting, and, to quote his own language, addressing the defendant, said: “I asked him what was the matter and he said, ‘I wont stand what is going on in my home,’ and I said, ‘You had better keep quiet and go to bed and sleep this off’ and he said, ‘no, by God, there is a man and a woman in this room and a man and a woman in the other room and I will be God damned if I am going to stand it any longer’ and I said, ‘Mr. Gum, you will have to get quiet now or I will have to put you under arrest,’ and he said, ‘God damn you, you can’t do it,’ rand at that I got him by the arms and I called Mr. Dennison, he was standing at the door and when he come in Mr. Gum threw his right hand up and I discovered his knife for the first time, and he said to Mr. Dennison, ‘By God, you stand back’ and 1 said to Dennison, dook out, he will cut you,’ and just as I said that Gum made a vicious lick at him with the knife and I jumped behind him and grabbed him by both arms and he struck back at me with his knife that way (indicating) and struck me here and cut me. ***** pje threw bаck his hand and struck me there and I thought from the sting of the knife that he- had cut me pretty badly but after I had him arrested and took him to jail I did not think so much of it. It was a'small place but was cut deep and it was six weeks before it
There is no evidence of any offense committed by defendant in the presence of the officer or within his hearing, unless the offense of attempting an assault upon Dennison with the knife be an offense, but this was after Dennison had been called in to assist in making the arrest, and Waugh had taken hold of defendant’s arms. The charge of the indictment is that the offense.was committed while Waugh was attempting to arrest the defendant on the charge of being drunk and disorderly.
Did the facts proven entitle the defendant to the instructions refused, or either of them? As stated by Bishop, Bishop on Crim. Proc., section 181, “their powers of arrest do not differ greatly; or, at least, the differences at common law are not distinctly defined in the books. * * * * * For a past offense lower than felony, none of these offiсers can make an arrest without warrant; unless for example, it is such a dangerous assault as may end in felony, by the death of the injured person.” See also 3 Cyc. 880.
The offense of being drunk and disorderly is not a felony. Section 9, ch. 153, Code 1906, among other things, provides: “If any person shall, in the presenсe of a constable, * * * * appear in a state of gross intoxication in a public place; such constable may, without warrant or other process, or further proof, arrest such offending person and carry him before some justice of the peace in the county, in which such offense is committed, * * * The statute, section 15, ch. 149, Code
What rights then has a citizen in resisting an unlawful arrest ? An arrest without wаrrant is a trespass, an unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined, as in' other cases of assardt. Life and liberty are regarded as standing substantially on one foundation; life being useless without liberty. 1 Bishop’s New Grim. Law, section 868. And the authoritiеs are uniform that where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the offender, whether of a private citizen or a public officer, to the extent of taking the life of the assailant, if that be necessary to preserve his own life, or prevent infliction upon him of some great bodily harm. 1 Bishop’s New Crim. Law, section 868; State v. Clark,
But what is meant by saying, as Teel v. Railway Co., and other authorities do, that one may not use more force than a jury would say is reasonable under the circumstances? May one under this rule use a club, or a cane, or as in the case we hare here, a knifе, if he do not go to the extent of killing his assailant or endangering his life, if in his judgment, viewing the situation from his stand point, it be necessary to do so to preserve his liberty and successfully ward off the assault upon him? We think the authorities justify answering this question in the negative. In 31 Cyc. 804, it is stated, that one thus situated “is justified in using or offering to use а deadly weapon only where he has reason to apprehend an injury greater than the mere unlawful arrest, as danger of death or great bodily harm.” Numerous decisions are cited for this proposition in the foot notes. In Coleman v. State,
It is unnecessary we think to multiply authorities. Upon reason, as well as upon authority, we think the general rule, affirmed in Roberson v. State, 43 Fla. 157, may be properly adduced namely, that “if the attempt to arrest be unlawful, the party sought to be arrested may use such reasonable force, proportioned to the injury attempted upon him, as is necessary to effect his escape, but no more; and he cannot do this by using or offering tо use a deadly weapon, if he has no reason to apprehend a greater injury than a mere unlawful surest.”
Such being the law applicable to this case the court below committed no error in rejecting defendant’s instructions three and four. While the general proposition statеd therein that one may lawfully resist an unlawful arrest as stated, as applied, to this case, they would in effect have told the jury that if necessary to successfully resist the arrest the defendant might lawfully use the deadly weapon he did use in inflicting the wound upon the officer. This we do not understand to be the law.
The fact that the assault was committed in defendant’s residence, under the circumstances of this case, makes no difference. The officer had been invited there by the wife of defendant who desired his protection. The officer did wrong in attempting to make the arrest without a warrant, аnd his act was wholly unjustifiable; but this does not excuse the defendant in the use of the deadly weapon, endangering the life of the officer, and the unlawful cutting of which the jury found him guilty was an unjustifiable act.
The judgment of imprisonment for three years, however, under all the circumstances, we think was quite too severe; but we could not say, if we had been called upon to do so, that the court below exceeded its reasonable discretion. The judgment 'will therefore be affirmed.
Affirmed.