Commonwealth v. Rhoads

Opinion by

Orbady, J.,

The defendant, a deputy sheriff, was given a warrant issued by a justice of the peace for the arrest of Robert Maurer and Lawrence Bean who were charged with having committed an assault and battery.

Rhoads arrested Bean on July 18, and in attempting to effect the arrest of Maurer on the following day inflicted a wound from which Maurer died within twenty-four hours. Rhoads was indicted for murder and was found guilty of voluntary manslaughter. The material facts are not in dispute. It is conceded that the warrant under which Rhoads attempted to arrest Maurer charged a misdemeanor; that Maurer was never in actual custody, and was shot by Rhoads when he was fleeing from him to avoid arrest, and that Maurer died in consequence of a wound inflicted by Rhoads.

Maurer started to run when Rhoads approached him and the chase continued for about a third of a mile through fields and in the dark, during which time Rhoads fired six revolver shots in the direction of Maurer, but, as he alleged, in the air or to wound him in the legs.

Under the defendant’s theory of self-defense and his own testimony he was not justified in shooting Maurer. While Rhoads testified that the first shots came from Maurer that important fact is fully negatived by Rhoads’s own testimony in regard to the search for and failure to find any firearm on Maurer or on the ground about him. In the light of the verdict, which was fully justified by the evidence, Rhoads was never in any danger from Maurer, who was running away from him. Rhoads could have stopped in safety at any time during the chase. While evading, arrest Maurer was not physically resisting the officer, or putting him in peril of life or limb. It is laid down as the law in many of our states that when the attempted arrest is for an offense less than a felony, the justification of a homicide by the person attempting the arrest is more restricted than in eases where the arrest is for a felony. When an officer in attempting to make a lawful arrest for a misdemeanor is met with forcible resistance, he is not obliged to retreat, but may use such force as may be reasonably necessary to accomplish the arrest; yet he is not justified in taking life even if the arrest cannot otherwise be effected, except when the resistance is so violent as to put the officer in danger of death or great bodily harm. In such cases his justification in killing his opponent rests solely upon the ground of self-defense (see 21, Am. & Eng. Ency. of Law, 204).

To permit the life of one charged with a misdemeanor to be taken when fleeing from arrest would, aside from its inhumanity, be productive of more abuse than good. The security of person and property is not endangered by a petty offender being at large, as in the case of a felon. Taking human life in the name of the law is the punishment inflicted- after conviction of our highest grade felony and it would ill become the majesty of the law to justify such a sacrifice to avoid a failure of justice in not arresting one charged with a misdemeanor, when', if taken and convicted, a sentence of fine or imprisonment only could be imposed.

One who flees from attempted arrest does not under all circumstances forfeit his right to live. While it is true that it is the duty of every citizen to submit to lawful arrest, there is a broad distinction between active resistance to and avoidance of a lawful warrant; between forcible opposition to arrest and merely fleeing from it. See 2 Am. & Eng. Ency. of Law, 906, Tiner v. State, 44 Texas, 128, 1 East. P. C. 302, and 2 Bishop on Crim. Law, sec. 650.

The court did not err in refusing to direct the commonwealth to call John Ake as a witness inasmuch as he was not an actual eyewitness to the tragedy. As was said in Commonwealth v. Keller, 191 Pa. 122: “ The offer should, however, be judged in the light in which it was presented to the court at the time. . . . While it is the duty of the district attorney in such a case to present all the testimony of the material facts, whether adverse to the defendant or favorable to him, the court in its discretion may limit the witnesses to be called.” In the case before us, a number of witnesses had been called to prove the flight of Maurer and the shooting by Rhoads. Ake was an assistant or deputy of Rhoads, who had been specially armed to assist in making the arrest, and had fired several shots during the pursuit by Rhoads. The facts connected with the shooting had been fully disclosed by the commonwealth, and it was no abuse of discretion to hold that Alce’s testimony was properly for the defense.

There was ample ground laid to entitle the commonwealth to offer in evidence the dying declaration of Maurer. A few moments after he fell to the ground and in the presence of Rhoads, he addressed his friends: “ Boys, I give you good-bye ■ — I am going to die — this man shot me and I must die, and I will die like a man.” Within a few hours he was told by the two surgeons who examined his wound that “ it was mortal and that he could not live ; ” “ could not survive from the wounds.” The next morning he made an ante-mortem statement to a justice of the peace, who reduced it to writing and read it over to him. After which an oath was administered to him and he signed the statement in the presence of two witnesses. His own belief in his impending death was confirmed by the statements to him of the surgeons. His identification of Rhoads was complete, and he died a few hours later: Commonwealth v. Roddy, 184 Pa. 274 ; Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497; Commonwealth v. Birriolo, 197 Pa. 371.

The offer to prove that the defendant had been informed before he started to make the arrest that Maurer was a desperate character and would use a gun if an officer undertook to arrest him was properly rejected as the case was presented. Assuming all that could have been proved under the offer, it would not be any justification for killing Maurer while fleeing from arrest for a misdemeanor.

The judgment is affirmed and the record is remitted to the court below, with direction that the sentence be fully carried into effect.