DocketNumber: No. 21933
Citation Numbers: 104 Cal. 86, 37 P. 799, 1894 Cal. LEXIS 860
Judges: Beatty, Fitzgerald, Fleet, Harrison, Haven, McFarland, Routte
Filed Date: 9/13/1894
Status: Precedential
Modified Date: 10/19/2024
There is no conflict in the evidence as to the circumstances under which the defendant killed the deceased, and, in order to determine whether his act was excusable or not, it was necessary for the jury to consider, first, whether the defendant was justified in attempting to arrest the deceased at all; and, if so, whether the act of shooting merely for the purpose of intimidating, and thus causing the deceased to stop, and without any intention of killing or wounding him, was or was not criminal negligence. It was important to the defendant to have these questions, and the law in relation to each, clearly and separately stated to the jury. The court correctly instructed the jury that a peace officer has the right without a warrant to arrest any person in the night, when the officer has reasonable ground to believe that such person has committed a felony. (Pen. Code, sec. 836; Burns v. Erben, 40 N. Y. 463.) But the court erred in the manner in which it submitted the question of probable cause to the jury. Upon this point the court gave the following instruction: “ It is for the
This instruction submitted to the jury the entire question in reference to the existence of probable cause upon the part of the defendant to arrest the deceased, and that body was called upon not only to find whether the fact3 relied upon by the defendant to show such probable cause were true, but also, if true, to determine whether or not they were legally sufficient for that purpose. The instruction was erroneous, as it is not the province of the jury to decide in any case whether the facts and circumstances which they may find established by the evidence are sufficient to constitute probable cause. This principle of law is now settled beyond doubt or controversy, as a reference to a few of many cases which might be cited on that point will show. “This question of probable cause, or reasonable ground for suspicion, whether it arises in actions for malicious prosecution or false imprisonment, is one of law, unless the evidence out of which it arises is conflicting, in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and submit to them only the question as to such facts.” (Burns v. Erben, 40 N. Y. 463; Bulkeley v. Keteltas, 6 N. Y. 384; Masten v. Deyo, 2 Wend. 425; Pangburn v. Bull, 1 Wend. 345; Driggs v. Burton, 44 Vt. 124; Panton v. Williams, 2 Ad. & E., N. S. 169; Sutton v. Johnstone, 1 Term Kept. 493, 545.) And our predecessors in passing upon the same question in Harhrader v. Moore, 44 Cal. 152, said: “ The authorities are substantially uniform that the question of probable cause, however presented, is a question of law, and therefore one to be determined by the court. When the facts in reference to the alleged probable cause are admitted or established
As already stated, the facts in this case were undisputed, and the court ought, therefore, to have instructed the jury as to their sufficiency in law to justify the defendant in attempting to arrest the deceased; that is, whether they were legally sufficient to induce a reasonable belief in the mind of the defendant that the deceased had committed a felony. The defendant requested the following charges upon this point:
“ 12. The court instructs the jury that, if the defend- 7 ant saw the deceased running at night, pursued by Howard, and Howard was crying out ‘stop!’or ‘stop thief I’ and the deceased on being ordered to stop by the defendant two or three times, and refusing to do so, but continuing his flight, then the defendant had reasonable cause to believe the defendant (deceased) had committed \ a felony.”
“ 14. The court instructs the jury that the uncontra-dicted evidence in this case shows that the defendant had reasonable cause to believe at the time of the killing that the deceased had committed a felony.”
The refusal of these instructions presents the most important question of law arising upon this appeal, as it is manifest that if either one had been given (the facts recited in the first one being established without any conflict whatever in the evidence), the inquiry of the jury would have been restricted to the single ques
There is a substantial agreement in the decisions of the courts as to what constitutes probable cause or reasonable cause such as will justify one in arresting or prosecuting another upon a criminal charge; and perhaps as clear and comprehensive a statement of the rule as can be found is that of Shaw, C. J., in Bacon v. Towne, 4 Cush. 217: “There must be such a state of facts,” said he, “as would lead a man of ordinary care and prudence to believe, or entertain an honest and strong suspicion, that the person is guilty.” Applying this rule to the facts of this case, we think it must be held that the defendant had reasonable cause to believe that the deceased may have committed a felony. It is true the deceased was not charged in terms with the commission of a felony, but this was not necessary in order to justify the defendant in entertaining a reasonable suspicion that he was guilty of a felony. It was night; the deceased was fleeing, pursued by a person who was shouting “stop thief!” This was in effect a charge that the deceased had committed a theft of some kind, and the defendant had just as much reason to suspect or
It is only necessary to add upon this point that in our opinion the court ought to have instructed the jury that the defendant had the right, under the circumstances established by the evidence, to arrest the deceased, leaving the jury to determine the further question whether the act of shooting the deceased in attempting to effect such arrest was or was not an act of criminal negligence upon the part of the defendant. This latter is purely a question of fact, and its determination must be left to the sound judgment and discretion of the jury, and in the decision of which question the defendant is entitled to the benefit of any reasonable doubt arising upon the evidence.
The court also erred in admitting the evidence of the witnesses Schloss and Weissel tending to show that deceased went down to the place near where he was shot on that particular night on lawful business. This fact was wholly irrelevant. The defendant knew nothing of
The motion of defendant to set aside the information was properly denied, and the court did not err in refusing to give the instructions numbered 2, 3, 15, 18, and 24, requested by the defendant.
We do not deem it necessary to notice the other points discussed in the brief of counsel.
Judgment and order reversed, and cause remanded for a new trial.