State v. . Garrett , 60 N.C. 144 ( 1863 )

His Honor charged: "The warrants in this case, being for a misdemeanor, and not for felony, gave the prisoner Garrett no authority, or any of his numerous guard of eighteen men, all armed, to take away life by the use of a deadly weapon, in order to execute his warrants." We do not concur in the proposition of law (149) which his Honor here lays down; on the contrary, after mature reflection, we are satisfied, not only that it is erroneous, but would make the due administration of the law impracticable.

These facts are not controverted: State's warrants and peace warrants had been duly issued against the deceased and his wife and son and daughter, for an assault and battery on Adeline Burns; for the want of a regular officer, the sheriff duly deputed the prisoner, Garrett, to execute the warrants and arrest the defendants; Garrett goes to the deceased and notifies him that he has the warrants, whereupon the deceased, having his gun, refuses to submit, but says he would let the sheriff or coroner serve the warrants. Garrett thereupon retires, and on the next day, having summoned eighteen men, they all go, armed with guns, to the premises of the deceased and arrest the son, whereupon the deceased, his wife and daughter, he armed with his gun, and they with an axe and knife, sally out from the house and meet the party in the lane; guns are several times pointed on both sides; the deceased starts to cross the fence and is shot by one of the guard.

His Honor ought to have instructed the jury that, as the deceased had put himself in resistance to the officer and his guard, they were not only authorized, but were bound to use such a degree of force as was necessary in order to execute the warrants, and were entitled to a verdict of acquittal on the ground that the homicide was justifiable, if no unnecessary violence had been used, unless from the fact that the prisoner had acquittal on the ground that the homicide was justifiable, if no unnecessary violence had been used, unless from the fact that the prisoner had started to cross the fence the jury should be satisfied that he had abandoned his deadly purpose of resisting to the death the execution of the law, and was attempting to make his escape by moving off; in which event there was no longer any necessity for shooting, and the officer, or some portion of his men, should have run after him and captured him in that way, and in passing on this question it was for the jury to determine whether the intention of the deceased in attempting to (150) cross the fence was to make an attack on Birchfield or to rescue his son, or run away; and in the latter case, if he still retained his purpose of resisting to the death, and to make a running fight, the officer and his men were not bound to risk their lives by rushing on a desperate man who still kept his gun in his hands.

This conclusion is so fully sustained by the necessity of "preserving good order and asserting the supremacy of the law" as to make it unnecessary to cite cases. In the execution of a State's warrant for treason, felony, or a breach of the peace, the sacredness of the Lord's day is to be disregarded; the dwelling-house (or castle, as it is termed in the books) must be broken into, and everything done which is necessary in order to execute the warrant. In other words, resistance to the execution of the command of the State is not allowed. The warrant must be executedpeaceably, if you can; forcibly, if you must.

There are other points to which we will not refer, because, from the manner in which the case is made up, we are not satisfied that we clearly apprehend them. It is proper, however, to say that we can see no evidence, by a perusal of the record, to justify this charge: "The deceased, whilst he had a right to defend himself, had no right to use a deadly weapon,unless in self-defense of his life." When a man puts himself in a state of resistance, and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and to set up the excuse of self-defense. Again, one who is not a known officer ought to show his warrant, and read it, if required; but it would seem that this duty is not so imperative as that a neglect of it will make him a trespasser ab initio, where there is proof that the party subject to be arrested had notice of the warrant and was fully aware of its contents, and had made up his mind to resist its execution at all hazards. There is

PER CURIAM. Error.

Cited: S. v. Belk, 76 N.C. 12; S. v. Dula, 100 N.C. 427; S. v.Armistead, 106 N.C. 644; S. v. Lingerfelt, 109 N.C. 780; S. v.Stancill, 128 N.C. 610; S. v. Horner, 139 N.C. 611; S. v. Durham,141 N.C. 744, 757; S. v. McClure, 166 N.C. 330; S. v. Beal, 170 N.C. 767.

(151)