Wilkinson v. State , 143 Miss. 324 ( 1926 )

Reluctant as I am to dissent in a case where the majority of the court think the judgment of conviction of felony should be reversed, I am compelled to do so in this case because of the importance of the principle involved. I think the judgment should be affirmed, regardless of some of the errors committed, because as I see the evidence, the defendant is guilty of manslaughter upon his own version of the killing, and, as the defendant was only convicted of manslaughter, the judgment should be affirmed.

It is undisputed that the defendant had no authority for the arrest of the deceased, that the deceased was not committing any crime in the presence of the officer, and no felony had been committed which would authorize his arrest without a warrant. The officers knew this, and their own testimony shows they knew they had no right to interfere in any manner with the deceased, although requested to do so by the deceased's sister and her husband.

In the second place, I do not think the instruction, No. 5, given for the state, constituting the basis of reversal in the majority opinion, had the effect of denying the defendant the right of self-defense. The instruction merely told the jury that the deceased had a right to resist unlawful arrest, and that he was under no obligation to submit to arrest, and, consequently, that the officers were at fault in insisting on his being taken in to custody by them. It does not deal nor purport to deal with the defendant's rights, but merely defines the rights of the deceased, and whether the instruction be strictly correct or not does not affect the rights of the accused. The accused's right of self-defense was clearly and fully given in instructions given in his behalf. Indeed, in my view he was not entitled to an instruction on the right of self-defense on the facts in the record; but, conceding that he had a right to defend himself if it became necessary to preserve his own life, this instruction did not have the effect of shutting off his right of self-defence. Frequently a situation is developed in which neither party would have the right of self-defense unless he entirely abandoned the difficulty. In other words, a person may not be the aggressor and provoke a difficulty, and then, because the necessity, either real or apparent, arises to take the life of his adversary he does so, unless he first by unequivocal acts abandons his original position of aggression and discloses that fact to his adversary in some appropriate manner. Whenever a party is at fault, he cannot justify a killing growing out of that fault unless he has done what he reasonably can to correct his fault.

In 13 R.C.L. at page 823, par. 127, under the heading, "Necessity Created by Act of Slayer," it is said:

"Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, the law wisely imputes to him his own wrong, and its consequences to the extent that they may and should be considered in determining the grade of offense, which but for such acts would never have been occasioned. He will not be permitted to avail himself of a necessity which he willfully has brought about. He will not be completely excused in the eye of the law; and, whether the slaying will be mitigated, is made to depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defense and resistance while in the preparation of such unlawful act."

In the same volume, at page 878, par. 180, under the heading, "Authority of Slayer to Effect Arrest," it is said:

"In a prosecution for a killing resulting from an attempt to effect an arrest, the slayer, in order to bring himself within the rules which excuse homicide occurring under such circumstances, must show that the arrest was attempted pursuant to lawful authority. A peace officer who attempts illegally to make an arrest, and in doing so invades the right of liberty of the person sought to be arrested, cannot plead self-defense in justification of the killing of such person, where the necessity grows out of resistance to such arrest. His offense cannot be of a lower grade than manslaughter. An arrest of, or attempt to arrest, a person without a warrant made by an officer for a misdemeanor not committed in his presence, is illegal, and the person's resistance to such arrest, or his escape therefrom, constitutes no justification for the taking of his life; and, where the officer kills such person in an effort to overcome his resistance or recapture him, he is guilty of either murder or manslaughter according to the facts and circumstances of the case. Again, an officer seeking to make an arrest may be guilty of a negligent homicide, as well as may any other person. In such case the question whether or not his act was one of criminal negligence is one of fact, the determination of which must be left to the sound judgment and discretion of the jury in a prosecution for the killing, and, in the decision of it, the defendant is entitled to the benefit of any reasonable doubt arising upon the evidence. Furthermore, it is the duty of an officer attempting to make an arrest to make known his purpose and the capacity in which he acts, if they are not already known to the person sought to be arrested, a failure to perform which may render him the aggressor, or the apparent aggressor, so as to warrant resistance by the accused, and so as to deprive the officer of the right to claim to have acted in self-defense in overcoming the resistance, though so forcible as to put him in danger of the loss of life or of serious bodily harm."

In 29 C.J., p. 1149, par. 136, under the heading, "Unlawful Acts," it is said:

"Where those circumstances are absent which will characterize an unintentional killing as murder, it is manslaughter at common law and under statutes declaratory thereof where one unintentionally kills another in doing an unlawful act, not amounting to a felony, nor naturally dangerous to life, at least if the unlawful act is a misdemeanor and not a mere civil wrong, and is malum in se and not merely malum prohibitum, it being expressly held in some jurisdictions that the unlawful act must be condemned by some statute or valid municipal ordinance of the state. But the death must be due to the unlawful act of defendant and not to the intervening act or negligence of a third person."

At page 1152 of the same work, section 138, under the heading, "Other Unlawful Acts," it is said:

"The rule that the unintentional killing of another in doing an unlawful act is manslaughter has also been applied to an unintentional homicide occasioned by the operation of a motor vehicle in violation of regulations imposed by law, or by the unlawful shooting, pointing, or handling of firearms," etc.

In 30 C.J., at page 33, section 178, under the heading, "Where Accused Is Aggressor," it is said:

"One who provokes a combat by assaulting another without provocation cannot as a rule avail himself of the excuse of self-defense, unless he first withdraws from the contest which he has brought on. One who seeks another for the purpose of provoking a difficulty is not deprived of the right of self-defense, where he does nothing to provoke a difficulty when he meets him; but, on the other hand, one may be guilty of having provoked the difficulty when he approached the prosecutor. If the accused acted without felonious intent, the mere fact that he brought on the difficulty does not necessarily preclude him from justifying on the ground of self-defense, where he was afterward compelled to act in self-defense."

But he must have done what was proper under the circumstances to abandon his unlawful purpose, as will appear from authorities hereafter referred to.

At page 45 of 30 C.J., par. 210, under the heading, "Aggression or Provocation by Accused," it is said:

"It is well established that one who is the aggressor or provokes the difficulty in which he kills his assailant cannot invoke the right of self-defense to justify or excuse the homicide, unless he in good faith withdraws from the combat in such a manner as to show his adversary his intention in good faith to desist. It is not enough to justify or excuse the homicide that in the course of the difficulty it became necessary for defendant to kill the deceased in order to save his own life or prevent great bodily harm; but he must also have been free from fault in provoking or continuing the difficulty which resulted in the killing. Accused cannot avail himself of, or shield himself on the ground of, a necessity which he brought on by his own fault or wrongful act."

In Wharton on Homicide (3 Ed.), at page 527, under the heading, "Assaults," the principle is discussed by this distinguished author, who, among other things, said:

"So an illegal arrest is an act of aggression upon the part of the officer making it, which will prevent justification upon his part on the ground of self-defense in taking the life of the person sought to be arrested. And the same rule applies in case of a lawful arrest, where the officer recklessly and wantonly abuses his prisoner, thus bringing on a conflict in which the prisoner is killed. In such case the arrest constitutes an assault which precludes the plea of self-defense."

In Wiley v. State, 19 Ariz. 346, 170 P. 869, L.R.A. 1918D, at page 373, the Arizona court held that: "A peace officer going by automobile at night to a point where he had been notified a felony had been committed, for the purpose of making an investigation, and having no warrant for arrest, is guilty of second degree murder, if, upon overtaking an automobile upon the road and failing to bring it to a halt by command, which he should have known was not heard because of the noise of the cars, he killed an innocent occupant by firing a bullet into the car for the purpose of enforcing his command."

This case is an interesting discussion of the question of the guilt of an officer killing a person without lawful right. In case note to this case in the L.R.A. at page 379, the editor says:

"The authority upon the question under annotation" (homicide by peace officer in attempting to enforce his commands against innocent persons) "is to the effect that, if a peace officer has no right to arrest a person, and kills such person in enforcing his commands, he is criminally responsible, unless it is established that he acted in good faith and was free from negligence. Thus, where the officer knew at the time that he was committing an unlawful act in arresting an innocent person who had failed to obey his command, he cannot excuse a killing done in making such arrest, since a peace officer, in taking human life under circumstances which the law does not justify, cannot take shelter behind his character and claim that he was acting in his official capacity. Campbell v. People (1913),55 Colo. 302, 133 P. 1043; [Id., 133 P.] 1199. And where no offense has been committed and no charge of an offense has been made, or warrant issued, a police officer who arrests a man, and, in preventing an escape, strikes and kills him, has committed a felonious homicide [citing authorities]."

At page 381 of this case note, second column, it is said:

"Thus it has been held that, where an attempt is made to arrest an innocent person, who offers resistance, and such person, is killed, if there is any other cause or motive than resistance to the attempted unlawful arrest, as where the situation is created and used as a pretext on the part of the officer to kill, the killing is murder [citing Carter v. State, 30 Tex. App. 551[30 Tex.Crim. 551], 17 S.W. 1102, 29 Am. St. Rep. 944].

"And, if an officer acts in malice and with premeditation toward an innocent person whom he is attempting to arrest under a belief of right, because such person does not remove his hands from his pockets upon command, the officer is guilty of murder in the second degree, it not being shown that he was or believed that he was in imminent danger. State v. Coleman (1904), 186 Mo. 151, 69 L.R.A. 381, 84 S.W. 978. And an officer who, while knowingly acting without legal authority in making an arrest, kills a person, may be found guilty of murder in the second degree. Campbell v. People (1913), 55 Colo. 302, 133 P. 1043, 1199. And where the means used to enforce a command by a peace officer are unlawful, as by shooting, where the officer has no reasonable and probable cause to believe that the commanded person has committed a felony, and who was in fact innocent, and such unlawful method is in itself a felony, a killing resulting from the shooting renders the officer guilty of murder in the second degree, even though it was unintentional and by accident, since the malice necessary to that crime can be implied in law from the fact that the shooting itself was a felony, having been false imprisonment by violence."

In case note in the 67 L.R.A., at page 307, under the heading, "Effect of Question of Legality or Propriety of Officer's Action," it is said:

"A peace officer, who attempts illegally to make an arrest, and in doing so invades the right of liberty of the person sought to be arrested, cannot plead self-defense in justification of the killing of such person, where the necessity grows out of resistance to such arrest. Roberson v. State, 53 Ark. 516, 14 S.W. 902. Where one engaged in an attempt to make an unlawful arrest, and on account of such arrest is placed in a situation rendering it necessary for him to defend himself against an attack made upon him, superinduced by his wrong, the law justly limits his right of self-defense, and regulates it according to the magnitude of that wrong. Carter v. State, 30 Tex. App. 551[30 Tex.Crim. 551], 17 S.W. 1102, 28 Am. St. Rep. 944."

On page 308, 67 L.R.A., under the heading, "Action without a Warrant," it is said:

"An arrest of, or attempt to arrest, a person without a warrant, made by an officer for a misdemeanor not committed in his presence, is illegal, and the person's resistance to such arrest, or his escape therefrom, constitutes no justification for the taking of his life; and, where the officer kills such person in an effort to overcome his resistance or recapture him, he is guilty of either murder or manslaughter according to the facts and circumstances of the case. State v. Dietz, 59 Kan. 576, 53 P. 870. And an officer who, on the plea that he had heard that a colored man had threatened to kill a negro girl, and that he was in town for the purpose of carrying out his threat, watched near the house of the colored girl, and during a dark night shot and killed a white man, claiming to have mistaken him for such colored man, is guilty of murder if he intended to use the occasion as a pretext on which to kill the colored man; but, if he only intended to arrest the colored man, and was making the attempt illegally without a warrant, the offense might be of no higher grade than manslaughter, and a charge on manslaughter is called for in a prosecution therefor.Carter v. State, 30 Tex. App. 551[30 Tex.Crim. 551], 17 S.W. 1102, 28 Am. St. Rep. 944."

These authorities and other authorities in case notes and in the opinions referred to demonstrate to my entire satisfaction that an officer, who undertakes to arrest a person without authority of law and while pursuing such effort to arrest kills the party, is guilty of manslaughter at least. The first duty an officer having power to arrest should learn is what his duties are and what his powers are under the law to make arrests. And, while the law and the courts will uphold him to the fullest degree in his acts in the pursuance of law, it will not, and cannot, rightfully shield him when he himself violates the law. One seeking to enforce the law must certainly be held to do so in accordance with the law. The people's right to security from unlawful arrest is entitled to just as much respect in court as the right of an officer to enforce the law for the protection of the public. While the authorities differ as to the right of a person to resist arrest to the extent of taking life, it seems to me that in the very nature of things a person must be given the right to resist force with force to any necessary extent to preserve his liberty. When he once submits to arrest, he is helpless; he may be disarmed and shackled, and his right of self-defense under such circumstances is ineffective and useless, and his power destroyed. Many men have met death at the hands of persons who claimed to have the right to arrest, and who, after arresting them, executed private vengeance upon them, taking life in many cases. It would be vain to say a person has the right to resist arrest unless he can make that resistance effectual.

An officer is protected as an officer only when he is acting in pursuance of the law. When he exceeds his authority and goes beyond the law and does things the law does not permit, he should not be permitted to justify a killing, although it may be necessary to kill to save his own life. Every man must weigh the consequences of his acts or be responsible for the consequences if he acts without authority and beyond reason.