19 P.2d 631 | Nev. | 1933
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *418
Defendant's requested instruction No. 5 was strictly applicable to the facts of this case, and the refusal to give it was error. It is a clear statement of the law as it appears to us, supported by an extensive research. Hughes v. Commonwealth (Ky.),
The lower court erred in refusing to give defendant's requested instruction No. 8, and in giving State's requested instruction No. 2 as modified by the court and given as instruction No. 10. Robertson v. State (Fla.),
The court erred in giving instruction No. 15, in that there is no intimation in this case that defendant was under the influence of liquor at the time of the homicide or prior thereto, and that there is nothing in the testimony establishing the element or elements of malice, wantonness or negligence in the discharge of the firearm in question. All the evidence thereon shows the very contrary.
Homicide in resistance to unlawful arrest is not murder, but an offense no greater than manslaughter, in the absence of previous or express malice. People v. Scalizi (Ill.),
Homicide in resistance to unlawful arrest is justifiable under certain circumstances, on ground of self-defense. Starr v. U.S.,
Even though the arrest be lawful, the power may be exercised in such wanton and menacing manner as to justify homicide in resistance thereto. Jones v. State, supra; Stanfield v. State, supra. *420
The acts of a peace officer may present a case of self-defense justifying his slaying by person assaulted, independent of the question of arrest. Vann v. State, supra.
It was error to allow the State's counsel to call in its case in chief only a few of the numerous witnesses whose names were indorsed on the information.
Gray Mashburn, Attorney-General; W.T. Mathews, Deputy Attorney-General; V.H. Vargas, District Attorney; and Geo. P.Annand, Deputy District Attorney, for the State:
Defendant's requested instruction No. 5, refused by the court, was fully covered by instructions 13 and 14, given by the court.
The first part of paragraph 1 of defendant's requested instruction No. 8 is also covered by given instructions 13 and 14. The balance of the paragraph requests the court to instruct on the facts of the case. The misdemeanor was committed in the presence of officer Long; he had a right to enter the building and arrest defendant for the offense. Carol v. United States,
We respectfully submit that the facts in the case now *421 before this court fulfill all the requirements laid down in the cases cited to come within the definition of "in the presence of." Long heard the shots, he walked into a public place where a great number of shots from a revolver had been fired. He undoubtedly saw the target with the bullet marks. He saw Smithson standing before the target with a revolver in his hand, and heard his explanation of the shooting. Long did not ask who was doing the shooting, but said: "Bart, you can't do that in here." The shooting was not only within his hearing and sight, he was near enough to detect the act as that of defendant.
The facts, briefly stated, are these: The defendant, who was the owner of the Palace Club, about 4:30 in the morning of January 10, 1932, with others, was engaged in target practice with a pistol, within the club. H.D. Long, known by defendant to be a peace officer, learning of the incident, went into the place and inquired of the defendant what was going on. He demanded the pistol used, admonished defendant, and started out. On the way to the door he ejected the blank cartridges from the gun. As he was opening the door to go out, the defendant inquired of him when he would get the gun back. To the inquiry of the defendant, Long made reply, turned around, and approached the south end of the bar, defendant being near the other end of it. Long, with a pistol in his hand, advanced behind the bar, toward the defendant, who reached up, grabbed a rifle, and shot Long through the heart, causing instant death. The testimony is conflicting as to what was said by defendant and Long as the latter advanced toward defendant. *422
It is the theory of the state that Long intended to arrest the defendant. The defendant contends that he shot in self-defense — that Long threatened to break the gun (which it is admitted he held in his hand) over defendant's head. The defendant also contends that Long had no legal authority to arrest him; there being no warrant therefor.
We will not consider the points made in the order presented, believing that by taking them up in the following order we may be able to epitomize to some extent.
1, 2. It is strongly insisted that the trial court erred in refusing to give the following requested instruction:
"Under the law of this state a peace officer is authorized to make an arrest on a misdemeanor charge only when the misdemeanor is committed in his presence. The discharging of firearms, as testified in this case, amounts only to a misdemeanor under the law. There is no evidence in this case before you that defendant Smithson engaged in target practice or discharged firearms in the presence of peace officer Long, Long, therefore, had no authority to arrest Smithson for discharging firearms within the city limits of Ely without a warrant and there is no evidence in this case that at the time he entered the Palace building he had such a warrant.
"I therefore charge you that in case you find that officer Long, at any time while he was in the Palace building, attempted to arrest defendant Smithson such action in so attempting to arrest Smithson was unlawful and Smithson had the right to resist such unlawful attempt, if you find such attempt was made by Long, to the extent of using such force as was necessary so to do."
One vice of this requested instruction is that it tells the jury that there is no evidence that defendant engaged in the target practice in the presence of officer Long.
It was for the jury to determine from the evidence whether there was such shooting in the presence of the officer. *423
The uncontradicted testimony of witness Olsen is that he heard the shooting, three shots, and that he was on the street a little over a half a block from the Palace Club at the time; that Long was on the opposite side of the street from him at the time of the first shot.
Mr. Lewis, one of the witnesses for the defense, testified, inter alia, that Long went into the Palace Club on the occasion in question, quoting:
"A. He come in and he says, `What's all of this racket about?' He told Mr. Smithson that he didn't want to hear any more racket like that and took a gun away from Mr. Smithson.
"Q. Or he would take the gun away from him? A. No, he did take the gun away from him.
"Q. Did he take it out of Smithson's hand — defendant's hand, or did he ask Smithson to give it to him? A. He said `give him the gun.'
"Q. Did Smithson give him the gun? A. Yes, sir."
With a slight variation of the phraseology, all witnesses testified to substantially the same thing.
From this testimony the jury had a "right to infer," to use the language of the supreme court of Missouri in State v. Grant,
From this testimony the jury had the right to find that Long walked into the Palace Club while the defendant was flagrante delicto.
We have found many cases in which the courts have held that a crime was committed in the presence of the officer where the facts were nothing like as satisfactory as in the instant case. In Dilger v. Com.,
In Ingle v. Com.,
In State v. McAfee,
In Ramsey v. State,
The supreme court of Wisconsin, in Hawkins v. Lutton,
The rule is laid down in Corpus Juris as follows: "An offense is likewise deemed committed in the presence of the officer when he hears the disturbance created and he proceeds at once to the scene, and where *426 the offense is continuing, or has been fully consummated at the time the arrest is made." 5 C.J. 416, sec. 45.
Ruling Case Law states the rule in substantially the same words. It says: "Accordingly an assault is considered as being committed in the presence of the officer if he is near enough to hear the outcries and arrives immediately after the disturbance has been completed, or if while outside a house he hears disorderly conduct in progress within." 2 R.C.L. p. 448.
To the same effect are: United States v. Borkowski (D.C.), 268 F. 408; Lambert v. United States (C.C.A.) 282 F. 413; McBride v. U.S. (C.C.A.) 284 F. 416; Id.,
Many other authorities might be cited to the same point.
The court did not err in refusing to give requested instruction No. 10.
3. It is insisted the court erred in refusing to give defendant's requested instruction No. 5, which reads: "You gentlemen of the jury are instructed that the discharge of a pistol upon any public street or in any theatre, hall, store, hotel, saloon or other place of public resort is, under our law, only misdemeanor. You are also advised that the duty of any peace officer is limited to making an arrest of one guilty of misdemeanor. A peace officer, without making such arrest, has no right to take or seize any personal property of the one accused of the misdemeanor; and if, without making the arrest and after taking over into his possession the pistol previously possessed by the party discharging firearms and the peace officer thereafter starts or enters into a quarrel respecting what is to be done with such pistol, he acts beyond the scope of his duty and power of a peace officer and in the prosecution of such quarrel is no longer protected or shielded by his official character." *427
In connection with the refusal of this instruction, it is contended that, if Long at the time he was shot was attempting to arrest the defendant, he was acting in excess of his official authority, and hence the defendant had the same legal right to resist arrest as he would have had had a private citizen sought to arrest him for the same offense, and that he was justified in resorting to whatever means necessary to maintain his liberty; that, if he were seeking to make an assault, the defendant had a right to resist to whatever extent necessary to defend himself; and that in no event should he have been convicted of a higher offense than manslaughter.
It is the contention of the state that, if the above instruction be correct, no prejudice was done the defendant, since the matter covered by it was substantially covered by the court's instruction No. 14, which reads:
"While it is the duty of a peace officer to maintain the peace and suppress disturbances of the peace which come to his attention, yet his powers in so doing are limited to the making of an arrest. In effecting such arrest he may use such force and only such force as may be necessary to overcome resistance which the party being arrested may offer.
"Such peace officer, however, has no right to use the cloak of his authority to enter into a quarrel with the disturber of the peace and if he does so, and in the course of such quarrel attacks or threatens to assault the other party, his official position will not shield him. He stands, in such case, in no better position than one not an officer who may make an assault or enter into such quarrel, and in such case the other party has a right to defend himself against the attack or threatened attack of such officer to the same extent and in the same way in which he would have the right of self-defense were the attack or assault by anyone not a peace officer.
"If, then, you find that Long had suppressed the disturbance of the peace and, after having so restored peace and quiet, returned to assault or make a threatened assault on defendant Smithson, Smithson had the *428 right to defend and protect himself against such assault in the same way and to the same degree as though Long were not an officer. * * *"
We think the contention of the state in this connection is well founded. By instruction No. 14 the court clearly told the jury that the officer had no right, under the cloak of his authority, to enter into a quarrel with the defendant, and that, if he did so, his official position would not protect him, and that the defendant had a right to defend himself in such a situation.
4-6. Nor are we in accord with the contention that the defendant should not have been convicted of a higher offense than manslaughter. Human life, as well as human liberty, is sacred. It should not be lightly taken, nor in any event except under the most dire circumstances and as a matter of last resort to save one's own life or to prevent receiving great bodily injury. Where an unlawful arrest is attempted, the person sought to be unlawfully arrested may resist to a reasonable degree, but, where the arrest is sought to be made by a known officer, and nothing is reasonably to be feared beyond the abridgment of one's liberty temporarily, resistance to the extent of taking life is inexcusable. Of course, before one can be convicted of murder in resisting an unlawful arrest, the jury must, upon an appropriate instruction, find that all the elements of the crime of murder, as defined by statute, entered into the killing.
We approve the language used in Adams v. State,
The conclusions we have reached are admirably expressed by the supreme court of Utah, in State v. *429
Anselmo,
See, also, People v. Dallen,
7, 8. The court erred, as contended, in instructing the jury relative to a person discharging a pistol, or other firearm, while under the influence of liquor, since there was no evidence that the defendant was under the influence of liquor; however, the defendant was in no way prejudiced thereby. A court should scrupulously avoid *430 instructing as to a state of facts concerning which there is no evidence.
9. Counsel for defendant complains of the fact that upon the trial the state called only two witnesses to testify as to the facts of the case, whereas the names of several other persons who were present at the time of the killing were indorsed upon the information. We held in State v. Milosovich,
While other errors are suggested by counsel for defendant, they are not seriously insisted upon, and we do not find that they are of any merit.
The judgment and order appealed from are affirmed.
Addendum
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
We were not in the least confused as to the correctness of either. After quoting the instruction mentioned, we pointed out why it was not applicable. We referred to several authorities sustaining the view that an officer does not have to see a violation of the law to justify a jury in finding that it was committed in his presence. The authorities cited in support of the conclusion we reached amply justify that conclusion, and many more might be cited to the point.
It is contended that we erred in saying that one vice of the instruction refused, above mentioned, is that it tells the jury that there is no evidence that defendant engaged in the target practice in the presence of Officer Long. In support of the contention counsel rely on the case of State v. Anselmo,
We did make a misstatement in saying the court did not err in refusing to give requested instruction No. 10. What we should have said was that the court did not err in giving instruction No. 10. Instruction No. 10 states the converse of the requested instruction quoted, which we held properly refused. Naturally, if that was properly refused, No. 10 was properly given.
3. It is insisted that we misstated Olsen's testimony as to where Long was when Olsen heard the first of the three shots of which he gave testimony. In this counsel is correct. Olsen testified that at the time mentioned he was in the vicinity of the Capital Building and that Long was in front of the Northern Hotel. The writer, having personal knowledge of the relative position of the two buildings, fell into the error mentioned. Since there was no showing as to how far the Northern Hotel is from the Palace Club, the question is whether the jury, under the evidence, was justified in finding that Long heard the shooting. While Long was in front of the *432 Northern Hotel the first shot heard by Olsen was fired; where he was when the other two shots were fired does not appear. As we pointed out in our former opinion, defendant's witness Lewis, in referring to Long going into the Palace and as to what was said, testified: "He came in and he says: `What's all this racket about?' He told Mr. Smithson that he didn't want to hear any more racket like that and took a gun away from Mr. Smithson."
Defendant's witness Baldwin, evidently an employee of defendant, referring to Long's appearance upon the scene, testified: "He came in the front door and walked over to Bart (defendant) and he said, I think, `You are disturbing the peace or creating a disturbance * * * You better give me that gun.'"
Defendant's witness Lyon testified on this point that Long, when he came into the Palace, said to defendant: "What the hell you trying to pull off around here. Bart said; Nothing. We just having a little target practice."
The witness Sumner testified: "Well, the next shot was fired, that I can recall, was when Officer Long dropped in — after he stopped shooting at the dollar."
The witness McGuire testified: "I think he shot at it twelve times. He never hit the dollar but he hit the box once and knocked the box over and the dollar fell out. And then Mr. Long came in and said to Mr. Smithson, he said, "Jesus Christ, Bart, you can't shoot like that in here."
In view of this testimony we think the jury had the right to infer that Long heard the shooting in question, and in addition to that he found defendant in possession of the gun, supplemented by the statement of the defendant that "we are just having a little target practice." From this showing we think the jury had the right to find that Long walked into the Palace Club while the defendant was flagrante delicto.
Counsel quotes the following from our former opinion:
"Of course, before one can be convicted of murder in resisting an unlawful arrest the jury must, upon an *433 appropriate instruction, find that all the elements of the crime of murder, as defined by statute, entered into the killing."
4. The court defined murder in its instruction No. 3, and in instruction No. 4 distinguished between murder of the first and second degree. If the defendant wanted further instructions on that phase of the case he should have requested them. State v. Charley Hing,
We cannot see that the defendant was in any way prejudiced during the trial.
The petition is denied.