(dissenting).
A number of factors prompt me to take issue with the verdict of the jury and its approval by the trial court and the majority here.
Stripped down to its rudiments we have before us from the State’s proof, which we must accredit as being true, a fight between a man seeking to retreat into the safety of his home and two armed officers who under provocation sought to use undue force in making an arrest. Under such circumstances a resulting death is voluntary manslaughter.
Assuming that the defendant was arrested for a threatened breach of the peace in the presence of Officer McLain, then outside his bailiwick and limited in his authority to that of a private citizen, he was clearly outside that authority when he employed a deadly weapon to make that arrest. The law is well settled in Tennessee that an officer may not resort to such force as will shed blood, much less threaten life, in arresting or preventing the escape of one charged with an offense less than a felony. See Reneau v. State, 70 Tenn. 720; Human v. Goodman, 159 Tenn. 241, 18 S.W.2d 381; Johnson v. State, 173 Tenn. 134, 114 S.W.2d819.
Not only was Officer McLain not justified in unholstering his pistol to effect the *118arrest, Officer Wright was equally unjustified in employing the deadly and dangerous weapon he did in attempting to subdue the defendant by striking him repeatedly with his blackjack. TCA § 39-4901, in listing dangerous weapons, categorizes a blackjack along with a pistol as such. Then too, the plaster of parís cast Officer McLain was striking at the defendant with would undoubtedly have been capable of inflicting serious injuries or death. If the officers had allowed the “escape” of the defendant into his home and had a wrecker tow away his automobile as one suspected of having been driven by a person under the influence, as they had a right to do, the defendant would undoubtedly have promptly made himself available for prosecution, and both his and Officer Wright’s bloodshed would have been averted. All concerned overreacted, and as sometimes happens when deadly weapons are used in provocative circumstances, death ensued. These circumstances militate against murder and were, when proved by the State, sufficient to reduce the degree of homicide to voluntary manslaughter.
When the officers exceeded the reasonable force limits available to them under the law and commenced beating the defendant with weapons capable of killing him, what might have been a lawful arrest was changed into unjustified assault. It can hardly be said under the facts of this case that the defendant killed to prevent arrest. He clearly acted out of the heat and provocation engendered by the injuries being rained on him by the officers.
“An officer has no absolute right to kill, either to take, or prevent the escape of, a prisoner. If with diligence and caution the prisoner might otherwise be taken or held, the officer will not be justified for the killing, even though the prisoner may have committed a felony.” Love v. Bass, 145 Tenn. 522, 238 S.W. 94.
The Supreme Court of Georgia, in a case where excessive force was used by an arresting officer, while not completely excusing the homicidal act states the law as I believe it to be:
“If a person under lawful arrest for a misdemeanor kills the officer because of an unlawful assault by the officer upon him, even such as to draw blood, but such assault is not so serious as to amount to a felony, or to what would reasonably appear to amount to a felony, then, in either event, the person slaying the officer would be neither guilty of murder, nor guiltless, but the offense would be voluntary manslaughter.” Mullis v. State, 196 Ga. 569, 27 S.E.2d 91.
Lastly, I cannot close my eyes to the obvious disparity in the treatment of the offense committed by the defendant under the heat and provocation of the assaults made to prevent his running into his home and that accorded the deputy sheriff who went to the defendant’s jail cell and deliberately pumped bullets into his body in a vicious attack that, had death ensued, would have resulted in the indignity of branding Tennessee as the only Southern state in recent years to experience a racial lynch. If the act of that officer in this sad affair was an attempt to commit voluntary manslaughter, surely the act of the defendant was motivated by no greater will to inflict harm.
The facts, as presented to the jury, will not support the conviction for murder, and I would recommend reduction to voluntary manslaughter. For that reason I must respectfully dissent.