85 Ky. 123 | Ky. Ct. App. | 1887
DELIVERED THE OPINION OF THE COURT.
' Appellant having, under a joint indictment against Mm and Ms brother Elijah Wright, for the murder
The homicide occurred between nine and ten o’clock at night, on the premises of appellant, near his dwelling-house, where the deceased, who was his uncle, had gone, accompanied by ten others, all but four being relatives and two of them brothers of appellant. It appears that all the party, except the deceased and one other, was armed with guns or pistols, and by agreement, when near the house, divided, two or three going to the back and the others to the front door; and their approach was so noisy and demonstrative as to awaken those inside, all of whom had gone to bed. One of those who went to the back door was a brother of appellant called “Black Hawk,” who said in a loud angry tone, “Damn you, open the door,” adding significantly, “Black Hawk is here now.” The reply of the appellant was, “Damn you, open the door yourself if you want it opened.” And upon the same response being given to the second demand made with a threat to kick the door down, it was kicked down, the shutter falling inside upon a man named Johnson, who was sleeping on the floor. The inmates of the house at the time were appellant, his wife, five children, Elijah Wright, who was there for the night, and Johnson. When the door was thus forced open appellant was confronted by his brother “Black Hawk” with a gun presented, and Elijah by another called Lnnce Wright, likewise armed.
The evidence tends to show the first shot was fired by Elijah at Lnnce Wright, the shooting between the two
The proof is that it was a moonlight night, the snow was on the ground, and that appellant Wright had recognized the deceased at the time he fired. On the other hand, while it is only an inference, though a strong one, that any others of the party' besides the two at the back door, fired into the house before they fell back to the corn-crib, it is proved that about the time appellant shot from the chimney corner, firing was going on, as the witnesses say, in all' directions, at least two shots being in the direction of the house.
It appears that soon after the crowd fell back Elijah Wright fled from the house; but the precise time he left does not appear, though he fired and was fired at as he retreated, one of the persons firing at him being a justice of the peace.
It may be inferred that the ostensible purpose of the crowd in going to the house of appellant was to arrest Elijah Wright upon a charge of breach of the peace. One of them, the justice of the peace, testified he issued a warrant against him late in the evening of the day of the homicide, but the court excluded that testimony. So the only evidence before the jury that a warrant was. issued at all, was by a witness, who stated he heard appellant and Elijah Wright talking about a warrant, and that the former told the latter if he would go home with bim and stay all night they would not arrest him. And it is proper to. state in this connection that the testimony of that witness tended to show appellant intended to resist the arrest of his brother,, if attempted at his house. But there was no officer except the justice of the peace in the party when they went to the house
There is no evidence that any one of the party informed Elijah Wright, when they reached the house, they came to arrest him, or that a warrant had been issued for his arrest; and it does not appear that either the justice of the peace or Perdue spoke to appellant or Elijah Wright at any time that night. The only intimation given to them that the object of the crowd in going there was to make the arrest, was by “Black Hawk,” who said, when he went to the back door, “ Consider yourselves under arrest,” accompanied with the remark, “Damn you, open the door;” and only one witness, he who was aiding in breaking the door, testifies to that fact.
It is proper to state, as illustrative of the feelings and motives of some of the party, that the justice of the peace testifies his object in going to the house of appellant was to protect him and Elijah from being hurt; yet he admits he fired at the latter as he was fleeing from the house. It was also proved that “Black Hawk” said, at the time the warrant was issued, that some one was going to be killed, and he did not like Elijah. Yet he was the one selected or permitted to demand admittance to the house.
There seems to have been some disturbance of friendship between appellant and William Wright, though there is no proof of a direct threat by either to do the other personal injury.
It is, however, proved that Elijah Wright had made
A somewhat extended statement of -the facts in this case has been made, because necessary to determine the various errors complained of.
1. We think the court erred in refusing to permit Elijah Wright to testify in behalf of appellant.
There is a conspiracy charged in the indictment to murder the deceased ; but the record contains no evidence whatever to sustain the charge. No witness states any fact from which it can be inferred that, previous to the attack by the party of which the deceased was a voluntary member, there was any concert between .appellant and Elijah Wright to take his life, either as the means or end of an unlawful design. And there being no evidence on the' trial to support the charge of •conspiracy, appellant was entitled to the testimony of Elijah Wright. And, for the same reason, evidence of ■previous threats by the latter was incompetent in the trial of appellant.
2. Instruction 4 is improper, because, the court had no .right- to- direct attention to the interest of witnesses in the result or character of statements made by them, the jury being the sole judges of the weight of the evidence -and of the credibility of the witnesses.
3. By instruction 6, the jury were told, in substance, that if appellant knew there was a warrant issued .against him- and others, and that the deceased and •others were there for the purpose of arresting him, then he had no right to use force to resist them, except to protect himself or family from death or great bodily harm, although the warrant was illegal. That instruc
By whom and how arrests may be made, are provided by the Criminal Code, the sections of which bearing on this case being as follows :
§ 36. A peace officer may make an arrest—
1. In obedience to a warrant of arrest delivered to him.
2. Without a warrant when a public offense is committed in his presence, or when he has reasonable grounds for believing that a person arrested has committed a felony.
§37. A private person may make an arrest, when he-has reasonable grounds for believing that the person arrested has committed a felony.
§ 38. A magistrate or any judge may orally order a peace officer or private person to arrest any one committing a public offense in the magistrate’s or judge’s presence, which order shall authorize the arrest.
It will be perceived that the only cases in which any other person besides a sheriff, constable, coroner, jailer, marshal or policeman, who are by section 26 denominated peace officers, can make an arrest, is under section 37, where the person making it has reasonable grounds for believing the person arrested has committed a felony, or under section 38, where a magistrate ór judge
There is no evidence showing or tending to show that any of the party had reasonable grounds to believe that Elijah Wright had committed a felony, or even that their purpose was to arrest him for a felony; but the only offense for which they went to the house of appellant to arrest him, if such was their real object, was misdemeanor previously committed, if he had committed any offense.
It is then plain that no one of the party had authority to arrest either appellant or Elijah Wright, the justice of the peace having no right to make it himself, or to deputize Perdue to do so.
Section 39 provides that the person making an arrest shall inform the person about to be arrested of the intention to arrest him, of the offense charged against him for which he is to be arrested, and if acting under a warrant of arrest, shall give information thereof, and if required, shall show the warrant. An arrest made in substantial compliance with the terms of that section is a legal arrest, which no one can lawfully resist. But to make or attempt to make an arrest in disregard or violation of that section is an illegal act, which the person about to be arrested is not required to submit to. And if it had been even a peace officer armed with a warrant instead of the party of unauthorized persons,
The deceased and those with him, therefore, not only had no authority to arrest either appellant or Elijah Wright, but the manner in which it was attempted, constituted an assault upon appellant, which he and all the inmates of his house at the time, including Elijah Wright, had the right to resist with all the force necessary to prevent it, even to taking life. Por, as has been said “the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault upon a man’s person, for a man’s house is his castle.” And it is well settled that when a case arises justifying the owner in resisting the breaking or forcible entrance of his dwelling-house, his servants or guests m-ay arm themselves for the purpose of resistance. (See Wharton on Homicide, section 552, and authorities there cited.) It is true the rule is generally held not to be so extended as to excuse the killing of persons not actually breaking into a house, or in the act of breaking into it. But when, as in this case, the house is actually broken and entered by a portion of a party combined and armed for the unlawful purpose of depriving one of the inmates of his liberty, and'carrying him away in the night time, accompanied with an attempt to commit a felony, as was done in this case, the person thus assaulted, as well as the owner of the dwelling, may resist with such force as may be necessary, even to taking the life of those present aiding and assisting, as well as those actually breaking and entering.
A mere demonstration, or even threat, to break a dwelling-house will not excuse a homicide by the owner or inmate. But when, as in this case, it had already been broken and fired into, and a felony attempted, appellant had the right to act according to surrounding circumstances as they appeared to him.
It was, therefore, improper for the court to omit from the instructions the qualification that appellant had the right to fire upon the deceased, dr any other member of the party, if he believed from all the circumstances as they reasonably appeared to him, that the deceased or any member of the party was about to again forcibly enter his house, or to fire into it.
It was also improper to make appellant’s right to shoot depend upon there being no other reasonably apparent means of escape. He was not required to flee from his dwelling, but had the right to stand his ground and use all the force necessary, or that reasonably appeared to him necessary, in or out of it, to prevent a forcible re-entrance or firing into it with the intent
Wherefore, tbe judgment is reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.
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