Gross v. Abston , 44 Tenn. App. 68 ( 1957 )

SHRIVEN, J.

(dissenting). I respectfully disagree with my colleagues in this case because I feel that the trial judge correctly concluded that the facts and circumstances shown by the record make questions for the jury, (1) as to whether or not the deceased was in the act of commiting a felony when defendant discovered him at the window of defendant’s nine year old sister and tried to apprehend him, and (2) as to whether defendant used improper means in his attempt to arrest deceased.

“Where the deceased, a young Negro man, was at the window of this young girl’s bedroom at 8:30 o’clock P.M. while she was inside the room and where he was hidden in the dark between two houses, with his hand on the window, it cannot be successfully argued that he was there for any legitimate or lawful purpose, and I cannot agree with the conclusion expressed in the majority opinion that, as a matter of law, he was guilty of violating only tlio “Peeping Tom Act” — T. G. A. sec. 39-1212, which is a misdemeanor.

Under onr statutes T. O. A. sec. 39-603 and decisions, the attempt to commit a felony is punishable as a felony. See De Lacy v. State, 67 Tenn. 401; Rafferty v. State, 91 Tenn. 655, 16 S. W. 728.

The majority opinion herein states:

£ ‘ The determinative question then is this: Must the minds of all reasonable men reach the conclusion that defendant shot the deceased as a necessary measure to prevent the deceased from injuring the person or property of defendant or his mother?”

This question seems to presuppose a situation where there was a directed verdict for defendant. In such case we would properly inquire as to whether or not the minds of all reasonable men must agree with the conclusion reached by the judge who directed the verdict. But there was no directed verdict in the case at bar. The jury found for defendant.

It seems to me that a more correct statement of the determinative questions before us, is:

(1) Is there room for difference of opinion among reasonable men as to whether or not deceased was engaged in the commission of a felony, or an attempt to commit a felony?

(2) Must the minds of all reasonable men reach the conclusion that defendant did not shoot the deceased as a necessary or permissible measure to prevent his escape?

Of course these are jury questions if reasonable men may differ as to the conclusions to be drawn from all the facts and circumstances shown by the record.

Sec. 40-808, T. C. A., provides that, if, after notice of the intention to arrest, the defendant either flees or forcibly resists, an officer may use all necessary means to effect the arrest. In Love v. Bass, 145 Tenn. 522, 238 S. W. 94, it was said that the killing of a felon is not justified in capturing him or preventing his escape, if, with diligence and caution, he might otherwise be taken and held, and, as to what constitutes due diligence and caution under given circumstances, is a jury question.

Sec. 40-811 defines fresh pursuit as that known to the common law, and also the pursuit of a person who has committed a felony, or who is reasonably suspected of having committed a felony.

Sec. 40-816, T. O. A., provides;

“ A private person may arrest another: (1) For a public offense committed in his presence; (2) when the person arrested has committed a felony, although not in his presence; (3) when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it.”

And Sec. 40-817 provides;

“Arrests by private persons for felony may be made on any day and at any time.”

Sec. 40-819 gives a private person, after notice of his intention to arrest a felon and refusal of admittance, the right to break open an outer door or window of a dwelling house to make the arrest.

We have found no statute and no decision by our Supreme Court to the effect that a private citizen may not use the same force as an officer to arrest and prevent tlie escape of one who has committed a public offense in his presence. The tenor of the statutes and decisions is that he may use such force.

While the shooting of a fleeing offender is not to be lightly condoned, nevertheless, in view of the inordinate number of reported cases of assault of females of all ages in their homes at night in this community, preceding the time defendant shot deceased outside the home of his mother and young sister who were there alone; and in view of the great amount of publicity given these crimes and attempted crimes, all of which is common knowledge here, defendant could hardly have been expected to look on the situation that he faced on the occasion in question, with calmness and equanimity.

As to whether, under the circumstances, he used improper and unjustifiable force in trying to restrain the deceased was for the jury to decide upon proper instructions from the Court, hence, I think the verdict and judgment of the trial Court should be affirmed.