State v. Durham

Brown, J.

The evidence tends to show that the deceased was a deputy sheriff and bad a warrant for the arrest of the prisoner for carrying concealed weapons. Deceased approached prisoner for the purpose of effecting his arrest, and some conversation ensued, the prisoner finally agreeing to give bond for his appearance. The prisoner, the deceased and others started to the office in the feed store of one Engel for the purpose of signing the bond. Hilton, the deputy sheriff, sat down at the table to write the bond, and while thus engaged the prisoner escaped from the room, Hilton following to capture the prisoner, and in the altercation which followed, the prisoner shot and killed Hilton.

In one of their briefs the prisoner’s counsel admit that if the decision in State v. Horner, 139 N. C., 603, is to be adhered to, all their exceptions are untenable except the fourth; and as to that exception it is insisted that the court below erred in charging the jury that in any view of the evidence the defendant was guilty of manslaughter, thereby depriving him of his plea of self-defense. In the able argument of Mr. Dean, as well as in their well considered briefs, counsel for defendant endeavored to draw a distinction between the case at bar and Horner’s case. After most careful consideration, we fail to see the distinction. In fact the cases appear to be “on all fours.”

The deceased Hilton was a deputy sheriff and had arrested the prisoner upon a warrant for carrying a concealed weapon —a misdemeanor. The defendant, according to his own evidence, recognized Hilton’s authority and went with him to give bond for his appearance. When they arrived at the office the deceased commenced to write the bond. As to subsequent occurrences the defendant testified: “Hilton then sat down and got to wilting, and while he was doing so, I slipped out of the side door of the store, and after I had got about twenty yards,' I looked back and saw Hilton coming with his pistol in his hand, coming towards me. I was running and be was running. I ran on about five or ten steps and looked around and saw Hilton with bis.pistol pointing towards me. Up to this time I bad not drawn my pistol. I tben drew my pistol and continued to go forward sideways, bolding my pistol pointing in tbe direction of tbe left side (describes attitude). Tbe range of tbe pistol was not on Hilton. I looked around as I was going away, and as I did so be fired on me. I tben turned and fired. I did not aim at bim this sbot. I did not attempt to bit bim. I did not want to bit bim this sbot. "When I fired tbe first sbot I came to a little stop — a moment’s stop. I tben went two or three steps and Hilton sbot again and tbe bullet glazed me on tbe left arm. I tben fell back a little bit — standing against a little sapling. Up to this time Hilton bad fired two shots and I one, and after this be fired two more before I fired any more. I then fired one and killed bim. At the time I fired the last sbot, Hilton was standing up aside of a sapling, bis pistol pointing at me. After tbe last sbot I ran off and went home.”

Tbe defendant further testified that when Hilton arrested bim be laid bands on tbe defendant and said, “Give me your gunthat be bad a pistol in bis pocket and did not give it up or allow Hilton to search bim; that be bad a bottle of liquor in bis right hip pocket; that be fired on Hilton and killed bim because be thought Hilton would kill him,, and that Hilton ordered him to stop as be ran off.” One Huy Kendall corroborates tbe defendant, but states that be never saw tbe defendant when be drew tbe pistol, and never saw it until tbe defendant turned and fired. This is not necessarily inconsistent with the defendant’s statement.

We have stated only tbe material evidence offered' by tbe defendant and most favorable to bim, because in passing on this exception that testimony alone should be considered. Tbe facts in Horner's case, briefly stated, are that Nichols, a. deputy sheriff, bad a warrant for Horner for a misdemeanor, viz., whipping his daughter-in-law. Horner refused to submit to arrest and attempted to escape. The testimony most favorable to Horner was his own (139 N. C., p. 610) : “I was in the woods; dog had treed a squirrel; Nichols and Ureez came on down the road. Nichols called to me and I answered. He said 'come on and go with me;’ had a warrant ; he read it. I said I am not going to do it; he said if I would promise to be at Squire Terry’s tomorrow at three o’clock, he would go. I refused. He came on me and said to me with an oath, 'If you do not go with me I am going to shoot you.’ Then I picked up gun and walked off; he shot at me; I ran about 50 yards; he shot again and I threw gun ’round and shot; I was going away from him; was out there for a squirrel. I ran against a tree when he was after me— knew deceased was a deputy sheriff.” Horner was convicted of murder in the second degree and appealed. His Honor had instructed the jury, as in the case at bar, that Horner was guilty of manslaughter at least. In almost every respect the cases are similar.

Ever since Garrett’s case, 60 N. C., 145, it has been thought that in this State the principle of self-defense does not apply to the case of one who places himself in the posture of armed defiance to the process of the State. In that case the great Chief Justice says: ''When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and to set up the excuse of self-defense.” The law of self-defense, applicable to encounters between private persons, does not arise in the case in which a person sought to be arrested kills the officer seeking to make the arrest. In this State, we think this is most essential to ''preserving good order and asserting the supremacy of the law.” After mature consideration this rule was reaffirmed in Horner’s case by a unanimous court. The well considered opinion delivered by Mr. Justice Connor is not open to any possible misconstruction so far as we can see. Much, of his language would apply with aptness to this case. The learned Justice, says: “The prisoner knew that the deceased was a deputy sheriff and that he had a warrant for his arrest. It was his duty to submit to arrest, and in resisting it with a gun in his hand it is not open to him to say that he acted in self-defense. Conceding that as he (the prisoner) was going away from the officer, refusing to submit to arrest, the officer was not justified in shooting him to make the arrest, does not affect his right to kill. If there was a necessity to shoot the deceased to save his life, it was the result of his unlawful act in resisting the mandate of the law. The position of the prisoner is similar in this respect to one who brings on or provokes a difficulty, and in the progress of it kills. It is not se defendendo, because he brought on the necessity. This is elementary and uniformly sustained by numerous cases in our own and other jurisdictions.”

The officer is not excused if he, with undue violence, menaces the life of the defendant when he attempts to arrest a person for a misdemeanor. The officer may be convicted and punished. But his crime will not excuse or condone the crime of the defendant in making open resistance to the process of the State. We are aware that in some jurisdictions it is held otherwise, and that while an officer., in attempting to arrest for a misdemeanor, dangerously menaces the life of the accused, the latter may defend himself to the extent of taking the officer’s life and the plea of self-defense is open to him. But in this State we have a statute (Acts 1889, chap. 51,) which enacts that “any person who wilfully and unlawfully resists, delays or obstructs a public’officer in discharging or attempting to discharge a duty of his office, shall be guilty of a misdemeanqr.” At the time he killed the deceased, the defendant was engaged in an unlawful act, not only malum in se (being in armed resistance to the process of the State), but an act directly 'connected with and which finally resulted in the death of the officer; for it is plain that had the defendant himself not resisted the law, but submitted to arrest, there would have been no homicide by any one. State v. Hall, 132 N. C., 1094; Turnage’s case, 138 N. C., 566; Wharton Cr. Law, vol. 1 (10 Ed.), sec. 305. There is

No Error.