State v. Meyers

Mr. Justice McBride

delivered the opinion of the court.

1. We are of the opinion that the court erred in admitting the testimony of the witness Anderson. Evidence of threats made by defendant against a person subsequently killed by him may be introduced to show deliberation, premeditation, or malice. Wharton, Homicide, § 601, and cases there cited. And threats against a particular class of persons, as, for instance, a threat to kill all policemen, are admissible in a prosecution for killing a member of the particular class indicated in the threats. Wharton, Homicide, § 603. In the case at bar it appears that defendant had said, in effect: “If they arrest me like that fellow was arrested, I would shoot them.” No showing was made of the circumstances attending the arrest in question, whether it was made by an officer or by some private person, and the witness Anderson, was unable to state even the name of the person arrested. It was a casual remark made several months before, and evidently did not refer to deceased. Nor was it shown to have referred to policemen or arresting officers as a class. The evidence was too remote to have any legitimate bearing upon the case at bar. Stevenson v. United States, 86 Fed. 106 (29 C. C. A. 600) ; Earles v. State, 47 Tex. Cr. R. 559 (85 S. W. 1.) The admission of this testimony was highly prejudicial to defendant, and was reversible error.

2. Several requests were made for special instructions. Many of these were substantially covered by the general charge, and as to those not so included the refusal was proper. They may, for the sake of brevity, be divided into two classes: (1) Those which assume that a person unlawfully arrested has a right to take life, if necessary to free himself from such unlawful detention. (2) That a homicide committed in resisting an unlawful arrest cannot as a matter of law be a greater offense than manslaughter. Neither of these propositions are sound law. While there are cases holding that one threatened with unlawful arrest may use such force as may be necessary to free himself, and maintain his liberty, even to the extent of taking the life of the aggressor, we are inclined to adopt the more humane and civilized rule, that, where the arrest is made by a known officer and nothing is to be reasonably apprehended beyond a mere temporary detention in jail, resistance cannot be carried to the extent of taking life. This is the doctrine announced by Mr. Wharton in his work on homicide, and the authorities cited by

The appellant, Linifred Isakson, was arrested in Multhim amply sustain it. Wharton, Homicide, § 409, and cases there cited.

We do not wish to be understood as holding that cases may not arise in which one may use a deadly weapon to protect himself against an unlawful arrest. Thus where the arresting party himself uses a deadly weapon or signifies his immediate intention to do so, or where an unauthorized person, being armed, attempts to break into one’s dwelling to make an unlawful arrest, or where it is attempted in such a way as to put one in fear of death or great bodily harm, in such rare instances one may be justified in using a deadly weapon. But we wish to be understood as holding emphatically that, where the attempted arrest is made by a known officer, and there is nothing to be apprehended beyond a mere temporary detention, the question of the right of such officer cannot be tried out with a pistol.

3. We do not think that the court had a right as a matter of law to assume that the arrest had the effect of exciting in the mind of the prisoner a sudden heat of passion, such as to make the desire to kill irresistible, and therefore manslaughter. ' The jury had all the facts before them, and it was for them to judge what effect the arrest had or might have had on the defendant. While the arrest was practically admitted by the State to have been unlawful and without cause, there was some evidence which the jury had a right to consider which tended to show malice. The facts, as claimed by deceased, that before leaving the room defendant put on a “slicker” having a pistol in the pocket, that he told deceased that somebody was looking out of the jail window, apparently with a design to attract his attention, and thereafter immediately shot him, and that he continued to fire after deceased had fallen, were circumstances which might well have justified the jury in finding that there was express malice.

4. It is unnecessary to consider the alleged error of the court in refusing to take from the jury the question of murder in the first degree, as the verdict of murder in the second degree operated in any event to acquit defendant of the higher crime, and he was therefore not prejudiced by any ruling made on that subject.

5. It was not error in the court to refuse to listen to the reading of authorities upon the argument of the cause. If the court thought itself sufficiently advised as to the law, it had the right to refuse to hear counsel further, and the very clear and exhaustive charge given in this case indicates that the court.was well advised as to the law.

We find no other error in the record, but for the reasons given above this cause must be reversed, and a new trial ordered. Reversed.