Ex parte Carter , 103 Miss. 302 ( 1912 )

Reéd, J.,

delivered the opinion of the court.

The appellant is charged with murder. This appeal is from the action of the chancellor in denying him bail upon a writ of habeas corpus.

Between eight and nine o’clock on the night of September 28, 1912, in the city of Okolona, appellant, A. C. Carter, shot and killed Will Brazile, the marshal of that city. It is shown by the testimony for the state that the appellant and his friend, Ira Cole, had been drinking during the afternoon and evening. Marshal Brazile was notified that the appellant had broken a show window of a . store. He went to the store, and at his request was accompanied by C. C. Jolly, a constable. The appellant and Mr. Cole were found in front of the store, and the deceased approached appellant and said: “Ni-ram, I am going to arrest you. You have got a gun.” Appellant thereupon stated that he would not be arrested, and drew his pistol and shot and killed the deceased. He afterwards fired twice at Constable Jolly, both shots taking effect. Constable Jolly attempted to strike appellant when he drew his pistol, for the purpose, as stated by the constable, of saving Brazile’s life. Mr Cole, by throwing up his ' arms, prevented the blow from reaching appellant. The pistol shots were in rapid succession. Mr. Cole, in his testimony for the defense, states that, as soon as Marshal Brazile and Constable Jolly reached appellant, Jolly struck at appellant with a stick twice. The first blow struck a window, and the second blow knocked appellant to his knees, and then appellant started to shoot. • The physician who examined the deceased’s body stated, in answer to the question as to whether the ball ranged upward or downward, that it went straight in. Mr. Cole in his testimony stated that' he had only taken two drinks and was not under the influence of liquor, and also stated that he had no recollection of having a conversation with a friend, Mr. Bransford, during the afternoon. Mr. Bransford testified that in the afternoon, between 4:30 and five o’clock, he told the appellant and Mr. Cole that it was about time for them to be going home, and that Mr. Cole said that he should go, and that the marshal had arrested, a man for not doing any more than they were doing. He stated, in effect, that they were then under the influence of drink. There were only two witnesses to the homicide — Constable Jolly and.Mr. Cole. .

In the act of the legislature granting the charter to the city of Okolona, it is provided in section 56 that the marshal of the city shall arrest, .with or without warrant, any person who shall violate any ordinances of the city. An ordinance of the city, duly enacted, makes the carrying of concealed weapons unlawful. Another ordinance provides for the punishment of misdemeanors under the laws of the state as though they were violations of the city ordinances, and another ordinance makes excessive drinking or disorderly conduct misdemeanors. Mr. Wharton in his Law of Homicide (3d Ed.), section 387, says: “Ministers of justice, such as bailiffs, constables, watchmen, etc., while in the execution of their offices, are under the peculiar protection of the law; and the killing of officers so employed has been deemed murder of malice prepense, as being an outrage willfully committed in defiance of justice and law. The general rule, therefore, is that if a person attempting or making an arrest is a lawful officer, and known to be such by the person sought to be arrested, and is authorized by law to make the arrest, and he is slain in the discharge of his duty by the latter, or by some other person interfering in his behalf, the killing is deemed to be malicious, and the offense is murder in some degree, according to the other accompanying circumstances.” In further discussion of the general subject, and referring specially to the right of self-defense, in section 402 of the same book, Mr. Wharton says: “The fact that an officer or citizen making an arrest exceeded his authority does not necessarily justify killing him in resistance of the arrest, or necessarily reduce the killing to manslaughter. The question in such case is whether the act of killing the officer was done in the lawful exercise of the right of self-defense. And if the person sought to be arrested had no valid reason to believe himself in immediate danger of death or great bodily harm, the killing will be deemed to have been committed, not in passion or fear, but with maliee. A person sought to be arrested has no right to take life, except to protect his own life, or his person from great bodily harm, though the person attempting to make the arrest may not have strictly complied in every respect with the law.”

In the present ease it will be seen that the marshal is authorized by the charter of Okolona, properly granted to that city by legislative enactment, to make arrests in cases of misdemeanor without warrant, and it therefore appears that at the time he was killed he was in the lawful execution of his duties as a peace officer of'the city. The case was fully presented to the chancellor. The witnesses were before him. He saw as well as heard them. From a careful and full review of this ease, we believe that he was correct in denying the appellant bail, and we will therefore not disturb his decision.

Affirmed.