This аction was brought by the widow and minor children of John Thomas, deceased, against Ewing Kinkead, a constable of Pulaski county, and the sureties on his official bond, to recover damages for the alleged wrongful killing of Thomas by Jesse F. Heard, a deputy of the defendant Kinkead as such constable. Heard was also made a defendant. The complaint avers that the act of killing was committed under color of a warrant for the arrest of Thomas, to answer for a misdemeanor charged against him before a justice of the peace, and that it was done wantonly and without cause.
The defendants by their pleading justify the killing as having been done by Heard in self-defense, while lawfully exercising his power to execute the warrant mentioned in the complaint, and while Thomas was unlawfully resisting arrest and attempting to escape. The appeal is from a judgment rendered on the verdict of a jury against the plaintiffs.
The death of Thomas resulted from a wound inflicted by a pistol-shot, and the evidence as to the immediate circumstances of the homicide was such as to make it questionable whether he had been actually placed under arrest before he was shot. It was contended at the trial that his arrest had been accomplished, and that he was killed while attempting to break away from the custody of the officer. As applicable to this view of the facts, the court, against the objеction of the plaintiffs, gave the jury the following instruction : “ If the jury find from the evidence that Heard had actually arrested Thomas, whether for felony or misdemeanor, if Thomas attempted to get away, Heard had a right to shoot him, if this shooting was necessary to prevent his escapе; provided Heard acted in the exercise pf due caution and prudence.”
In repeating substantially the same charge in a different ■connection, the jury were told that life can be taken to prevent an escape only in case of extreme necessity аnd when the officer has exhausted all other means of enforcing the prisoner’s submission. The duty which the law enjoins upon an officer to exercise his authority with discretion and prudence was also fully and properly stated, and the jury were in effect instructed that the needless killing of а prisoner would in all cases be wrongful. In another part of the charge, it was stated, as an admission of the pleadings, that the offense of which Thomas was accused was a misdemeanor. And in other respects the charge of the court was such that the plaintiffs were not prejudiced by the instruction we have quoted, if the life of a prisoner may be taken under any circumstances merely to prevent his escape after arrest for a misdemeanor.
The doctrine of the court’s charge is approved by Mr. Bishop, who states it in his work on Criminal Proсedure substantially in the language employed by the trial judge. 1 Bishop, Cr. Pro., sec 161. In his note on the section cited, the author refers to his work on Criminal Law (vol. 2, secs. 647, 650) and to two cases decided by the Supreme Court of Texas—Caldwell v. State,
The rule laid down without qualificatiоn in “ Criminal Pro•ceedure ” is stated only as “ a general proposition ” in one of the sections referred to in the work on Criminal Law. From the text of the latter reference is made to the treatise of Russell on Crimes and to the earlier works of Hale and Hawkins. But these writers all appear to limit the application of the rule to cases of felony or to cases where the jailer or other officer having the custody of a prisoner is assaulted by the latter in his effort to escape and the officer kills him in self-defense, i Hale, P. C., 481, 496; 1 Russell on Crimes, 666, 667; 1 Hawkins, P. C., 81, 82. Thе decisions cited by Mr, Bishop in the section last referred to, as far as we have had the opportunity to examine them, go no further than the authors we have mentioned. U. S. v. Jailer, etc.,
The case of State v. Sigman,
The case of Head v. Martin, 3 S. W. Rep., (Ky.), 622, is-also cited by the appellees. But the only ruling there made, as indicated by the syllabus, was that a peace officer, having-arrested one accused of a misdemeanor, cannot, when he is-fleeing, kill him to prevent his escape; and all that the court says is strongly against the contention of the appellee on the point we are considering. On the point embrаced in the-quotation of counsel from the opinion, in that case, the jury-in the present case were properly charged by instructions-other than that now under consideration. The only question presented by the latter is whether an officer having in his custody a prisoner accused of a misdemeanor may take his life if he attempts to break away, where, in the language of the court’s charge, “no other means are available” to-prevent his escape. A resort to a measure so extreme in-cases of misdemeanor was never permitted by the common law. I East, P. C., 302. That law has not, it is believed,, lost any of its humanity since the time of the writer we have just cited ; and no statute of this State operates to restrain its mercy. We have adopted its rule in making arrests in cases of felony. (Carr v. The State, 43 Ark., 99.) But. without legislative authority thе severity of a remote age ought not to be exceeded in dealing with those who are accused of smaller offenses.
East, in his Pleas of the Crown, after stating the rule that a. felon fleeing from justice may be lawfully killed “where he-cannot be otherwise overtaken,” says: “ The sаme rule holds if a felon after arrest break away as he is carrying to gaol, and his pursuers cannot retake without killing him. But if he may be taken in any case without such severity, if is at least manslaughter in him who kills him.” (i East, P. C., 298.) No distinction, it will be noticed, is made between the case of a felon fleeing from аrrest and ■ that of one “ breaking away ” after arrest; and such is still the law. No reason whatever is given for making such a distinction in cases of misdemeanor, and we have found no adjudged case which in our opinion supports it. See Clements v. State,
In United States v. Clark, 31 Fed. Rep., 710, Mr. Justice Brown sаys: “ The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take his life, if it becomes absolutely necessary to do so to prevent his escape ; but he may not do this if he be charged simply with a misdemeanor, the theory of the law being that it is better that a misdemeanant escape than that human life be taken.” And he expresses a doubt whether the law permitting life to be taken to prevent an escape is applicable at the present day even to all cаses of felony. (See also State v. Bryant,
■^It has been said that the officers of the law are “ clothed . with its sanctity” and “represent its majesty.” Head v. Martin,
The circuit court erred in so much of its charge as was . not in harmony with this statement of the law. In other respects the instructions contain no error prejudicial to the. ■ appellant. For the error indicated the judgment will be. re- • versed, and the cause remanded for a new trial.