At about eleven o'clock at night, April 25, 1932, two young ladies stopped at the house of Deputy Sheriff Jackson, where the following conversation occurred:
"Q. What did you do?
"A. Went on the porch.
"Q. Did he come out?
"A. After I knocked and asked if I could speak to him for a minute.
"Q. Yes. And what was the conversation between you and Mr. Jackson?
"A. When he came out on the porch, I pointed this man out to him.
"Q. How far away was this man at that time?
"A. Maybe a little better than half a block.
"Q. What was he doing then?
"A. He was coming down the sidewalk.
"Q. In which direction?
"A. West. *Page 691
"Q. Towards you?
"A. Yes sir.
"Q. Now, what was the conversation between you and Mr. Jackson?
"A. He asked me what the trouble was, and I told him it was too terrible to tell.
"Q. Did you say anything about someone accosting you? By that, I mean someone making some comment to you or speaking to you?
"A. No sir, I just pointed him out.
"Q. What did you say when you first went up to Mr. Jackson, when he first came out on the porch?
"A. I told him that man was following us.
"Q. What did he say?
"A. He asked me what the trouble was.
"Q. And what did you say?
"A. I told him it was too terrible to tell.
"Q. And what did he say?
"A. He told me to go home, and he would follow him."
Following that conversation the deputy sheriff then went to see Powell, a police officer at St. Anthony, whereupon Powell asked Jackson what the man had done, referring to some man who had, the young ladies said, been following them, to which question the deputy sheriff replied: "I don't know." The following question was asked Powell as to what Jackson told him, after Officers Jackson and Powell got to the point near which Powell shot and killed the deceased, but before Powell fired the fatal shot, and Powell made the following reply:
"Q. What did he tell you, if anything, about it?
"A. He said he was driving around the block to meet me coming with the fellow, and he said he heard one or two shots."
The only actual, definite information, then, that Jackson had to act upon, was, that some man had been following the young ladies, notwithstanding the fact that one of the young ladies, when Jackson asked "what the trouble was," replied "it was too terrible to tell." That the officer *Page 692 himself did not believe that a felony had been committed by the man coming down the sidewalk toward him, is placed beyond serious controversy by the fact that all he would have had to do was to just wait for a moment or two and then step off his porch, and in the very presence of the young ladies, arrest the man; in other words, if Jackson had had reasonable cause for believing that a felony had been committed, or that the man coming down the sidewalk toward him had done something "too terrible to tell," who can doubt that Jackson would have instantly and eagerly started toward that man to arrest him. And that Jackson did not know what, if anything, the man had done, other than to follow the young ladies, is further and convincingly shown by the fact that when Powell asked him what the man had done, he replied: "I don't know."
Section 19-603, I. C. A., provides when a peace officer may arrest as follows:
"A peace officer may make an arrest in obedience to a warrant delivered to him or may, without a warrant arrest a person:
"1. For a public offense committed or attempted in his presence.
"2. When a person arrested has committed a felony, although not in his presence.
"3. When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.
"4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
"5. At night, when there is reasonable cause to believe that he has committed a felony."
Officer Jackson did not have a warrant for the arrest of anybody, and no felony was committed in his presence or otherwise, so that if he had any authority, or right, whatsoever, to act as a peace officer, and make an arrest, it could only arise from evidence showing reasonable cause for believing that the deceased had committed a felony. And *Page 693 if following two young ladies in the evening, without harming, or insulting or even speaking to them, constitutes a felony, then Officer Jackson had reasonable cause for believing that a felony had been committed, but even at that, the deputy sheriff had no reasonable cause; in fact, no reason whatever, for believing that the deceased had been following the young ladies, or had annoyed them in any way, or had committed a felony, or that he was guilty of any wrongdoing whatever. Under subdivision No. 3, of the above-quoted section, Jackson must have had reasonable cause for believing: First, that a felony in fact had been committed, and, secondly, that the deceased committed it. And the test in determining whether Jackson had reasonable cause for believing, first, that a felony had been committed, and, secondly, that the deceased committed a felony, is, whether a reasonable and ordinarily prudent man, placed in the same situation that Jackson was in, would have believed that both a felony had been committed and also that the deceased committed it. Subjected to that test, it is at once apparent that the evidence is insufficient to prove that Jackson had reasonable cause for believing either that a felony had been committed, or that the deceased committed it. In fact, the circumstances related to Jackson by one of the young ladies, constituted no evidence whatever of the commission of any crime by the deceased, nor did such circumstances create a reasonable suspicion that the deceased had even followed or spoken to the ladies.
The terms of the official bond of Sheriff Fredrickson were:
"Shall well, truly and faithfully perform all the duties of his office now required of him by law, and also such additional duties as may be hereafter imposed upon him by any law enacted and in force in the State of Idaho."
There has always been a conflict of authorities as to when a surety upon an official bond is liable for the acts of his principal. In Federal Reserve Bank v. Smith, 42 Idaho 224,244 Pac. 1102, this court was called upon to determine whether it would follow that line of authorities holding *Page 694 that a surety is liable for the acts of his principal, or his deputies, done under color of office, or the line of authorities holding that a surety is not so liable, and this court, after reviewing the authorities, and after full and careful deliberation, chose to follow the line of authorities holding that the surety is not liable, as quite clearly appears from the following excerpt:
"The authorities are in conflict as to whether a surety upon an official bond is liable for acts of the principal, or his deputies, done colore officii, many courts holding that the surety in such case is liable (24 R. C. L. 965, 966; SkagitCounty v. American Bonding Co., 59 Wn. 1, 109 P. 197; Leev. Charmley, 20 N.D. 570, 129 N.W. 448, 33 L.R.A., N.S., 275; Greenberg v. People, 225 Ill. 174, 80 N.E. 100, 116 Am. St. 127, 8 L.R.A., N.S., 1223; Turner v. Sisson,137 Mass. 191), while others take the position that the surety is not liable for such acts. (Inman v. Sherrill, 29 Okl. 100,116 Pac. 426; People v. Pacific Surety Co., 50 Colo. 273,109 Pac. 961, Ann. Cas. 1912C, 577; Gray v. Noonan, 5 Ariz. 167,50 Pac. 116 (118); Jones v. Van Bever, 164 Ky. 80, 174 S.W. 795, L.R.A. 1915E, 172; State v. Schaper, 152 Mo. App. 538,134 S.W. 671; Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S.W. 463;Chandler v. Rutherford, 101 Fed. 774, 43 C.C.A. 218.)
"This court, in Haffner v. United States F. G. Co., 35 Idaho 517,207 P. 716, lays down the distinction between acts done by virtue of office and acts done under color of office:
" 'Acts done "virtute officii" are those within the authority of the officer, when properly performed, but which are performed improperly; acts done "colore officii" are those which are entirely outside or beyond the authority conferred by the office.'
"It is generally held that to constitute color of office such as will render officers liable on their official bonds for their unauthorized acts, something else must be shown besides the fact that the officer claimed to be acting in his official *Page 695 capacity in doing the act complained of. If not armed with a writ, or if the writ under which he acts is void on its face and there is no statute which authorizes the act to be done without process, then there is no such color of office as will impose a liability upon the sureties on his official bond."
If Jackson acted when no felony had, in fact, been committed, as the evidence conclusively shows, and in the absence of reasonable cause for believing that the deceased had committed a felony, as the evidence further conclusively shows, then the sureties, under the terms of their official bond hereinbefore quoted, would not be liable. In the light of those undisputed facts, it becomes clear that the majority opinion holds the sheriff's sureties liable for the killing of the deceased, because Jackson happened to be a deputy sheriff at the time of, and to some extent, perhaps, participated in, the killing.
The rule of stare decisis requires that this court adhere toFederal Reserve Bank v. Smith, supra; Inman v. Sherrill, supra; 15 Corpus Juris, 916, sec. 304, and cases therein cited.
For the reasons above stated, I cannot concur in the majority opinion. *Page 696