Appellant has filed a motion for rehearing, contending that in our consideration of the case we overlooked the fact that the appellant was a deputy sheriff at the time of the fatal killing, and that he was acting in line of duty.
Though we did not comment extensively on the law of justifiable homicide as applicable to one who interposed the defense that he was a peace officer, and the homicide was committed in line of duty, we nevertheless did not overlook the matter.
Appellant did not at any time challenge the trial court's instructions to the jury relative to a justifiable homicide when committed by a public officer, either in obedience to a judgment of a competent court, or in the discharge of his legal duty. The record clearly shows that such instructions were given.
Counsel for appellant, under the broad general assignment that the judgment of the court is contrary to the evidence and the law, attempts to predicate error on the theory that the appellant was immune from prosecution by reason of his status as a peace officer. Ordinarily such an assignment of error does not justify any extensive comment on the law as contended for by appellant. However, in view of the importance to the law enforcing officers of the state, and of the general interest in this question of law, we have concluded to set forth our views on the rights and duties of peace officers under circumstances as disclosed by this record.
Our statutes seem to give officers as much or more authority than the average State. These duties are set out in section 33-4416 (1929 N.M.Comp.St.) as follows: "The sheriff shall be conservator of the peace within his county; shall suppress assaults and batteries, and apprehend and commit to jail, all felons and traitors, and cause all offenders to keep the peace and to appear at the next term of the court and answer such charges as may be preferred against them." And in order to further assist sheriffs in carrying out their duties, section 33-4414 provides: "All sheriffs shall at all times be considered as in the discharge of their duties and be allowed to carry on their persons arms not concealed."
"Justifiable homicide" is defined in section 35-317 as follows: "A homicide is justifiable when committed by public officers, and those acting by their command in their aid and assistance, either in obedience to any judgment of any competent court, or when necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty." The *Page 6 portion of this section directly applying to defendant would read: "A homicide is justifiable when committed by a public officer when necessarily committed in overcoming actual resistance to the discharge of any legal duty." Section 35-318 provides in part as follows: "Such homicide is also justifiable when committed by any person in either of the following cases: * * * Third. When necessarily committed * * * in lawfully keeping and preserving the peace."
The facts show that deceased was disturbing the peace, that he was placed under arrest; that he resisted arrest and threatened to do bodily harm to defendant; that he escaped and continued to resist defendant's effort to recapture him; that at the time the fatal shot was fired he was not retreating. There is no evidence to show that defendant fired the shot with malice, with or without premeditation, and there is evidence to support the contention that defendant fired the shot in self-defense. In State v. Dunning, 177 N.C. 559, 98 S.E. 530, 531, 3 A.L.R. 1166, the court said:
"An officer, having the right to arrest an offender, may use such force as is necessary to effect his purpose, * * * to the extent of taking life."
We find this note in 3 A.L.R. 1175, quoting the court in the case of North Carolina v. Gosnell (C.C.) 74 F. 734: "If one charged with a misdemeaor resists arrest, the officer may use sufficient force to overcome resistance, and if the resistance is with a deadly or dangerous weapon the officer may resort to extreme measures to avoid serious injury and accomplish the arrest, even to shooting. He is never required, under such circumstances, to afford the resisting offender the opportunities of a fair and equal struggle, but may avail himself of any advantages that arise in the conflict."
There is no question but that large rocks hurled by a man the size of this misdemeanant were dangerous weapons. Section 540, Wharton's Criminal Law (12th Ed.) vol. 1, p. 776, is as follows: "Officer when in danger of life may kill person charged with misdemeanor attempting to escape. Although an officer must not kill for an escape where the party is in custody for a misdemeanor, yet if the party assault the officer with such violence that he has reasonable ground for believing his life to be in peril, he may justify killing the party. State v. Anderson (1883) 19 S.C.L. (1 Hill) 327 and Foster's Case (1825), 1 Lewin, C.C.(Eng.) 187."
The Supreme Court of Missouri stated the correct rule in State v. Dierberger, 96 Mo. 666, 10 S.W. 168, 171, 9 Am. St. Rep. 380, as follows: "The officer, when making an arrest, may, of course, defend himself, as may any other person who is assaulted; but the law does not stop here. The officer must of necessity be the aggressor. His mission is not accomplished when he wards off the assault. He must press forward and accomplish his object. He is not bound to put off the arrest until *Page 7 a more favorable time. Because of these duties devolved upon him the law throws around him a special protection. As we said in the recent case of State v. Fuller, 96 Mo. 165, 9 S.W. 583, his duty is to overcome all resistance, and bring the party to be arrested under physical restraint, and the means he may use must be coextensive with the duty."
Coming directly to the instructions given the jury by the court, the record shows that the court instructed the jury as follows: "The defendant has interposed two special pleas in this case, by virtue of which or by virtue of either one of which he claims that he is not guilty of the crime here charged, and they are: the plea of self-defense and the plea of justifiable homicide."
The court without any objection from counsel for the defendant, also gave the following instructions:
"You are instructed that it is the statutory duty of a deputy sheriff to keep and preserve the peace, suppress assaults and battery, and to apprehend and take to jail any person who is drunk and disorderly."
"Therefore, if you believe from the evidence, or if you entertain a reasonable doubt thereabout, that at the time the defendant killed the deceased, or immediately prior thereto, the deceased was disturbing the peace, was in the act of or was attempting to commit assault and battery, or was drunk and disorderly, and that in the performance of his duty with reference thereto, as hereinabove just stated, it was reasonably necessary for the defendant to shoot and kill the deceased, you should then acquit the defendant of the crime here charged on the ground of justifiable homicide committed by an officer in the discharge of his legal duty."
The trial court might have instructed the jury at greater length upon the law of justifiable homicide as applicable to peace officers; but, in the absence of any objections to the instructions as given, no error can be predicated at this time. We do not mean to hold that the instructions as given are either complete and sufficient or are incomplete and insufficient. That question, as heretofore pointed out, is closed to appellant. This opinion on rehearing is to point out the law of justifiable homicide as applicable to this defendant as a peace officer. Such officers are on a different plane than others when charged with a homicide committed during the performance of their official duty. Such officers can claim the protection of the law clearly given them by 1929 Comp. St. § 35-317 and section 35-318. The Missouri decision (State v. Dierberger, supra) above quoted is a clear exposition of the law applicable herein, and we cite the same with approval.
The jury in applying the facts to the law so given them by the court found against the defendant, and by their verdict of guilty of manslaughter the jury has conclusively found that the defendant as an officer went further than the law *Page 8 permits. Such a finding, being supported by substantial evidence, will not be disturbed on appeal. This principle has been passed upon by this court so many times as to require no citation of authorities.
For the reasons given, the motion for rehearing will be denied. It is so ordered.
HUDSPETH, C.J., and SADLER, BICKLEY, and BRICE, JJ., concur.