I think the judgment should be affirmed. The majority holding is that *Page 380 Burton, when he assaulted Overholt, and later, when he killed Chandler, had so far departed from an official status as to relieve the sheriff of responsibility. It is my view that Burton, while fully clothed with authority of office, went as far afield in the use of official instrumentalities as it was possible for one to go, leaving death and the evidences of brutality to show for wantonness and moral perversity. He should not be permitted to assume the characteristics of a chameleon and change color to correspond with the background affecting a particular transaction.
When he left the sheriff's presence that official had sanctioned certain conduct and had directed consummation of an express duty. The conduct sanctioned was that of carrying a pistol. The duty enjoined was to deliver men to municipal court where they were to enter pleas of guilty. In other words, while in the process of conveying his prisoners, and while guarding them, he either collided with Overholt's car, or Overholt collided with his, and to impress all and sundry with the importance of place, Burton engaged in vituperation and profanity, insisting, at least inferentially, that Overholt's action had impeded progress of one charged with the immediate duty of delivering prisoners. So venomous was his course in castigating an old man that Chandler told him the outrage had proceeded far enough. Then, with but slight additional provocation and seemingly without a shadow of justification, he resorted to use of the deadly weapon provided by the sheriff, or, if not provided, carried with approval.
I do not mean to imply that the sheriff suspected Burton would deport himself in the manner complained of; nor would anyone competent to be elected sheriff condone what was done. I unhesitatingly join with the majority in the view that the record does not disclose affirmative conduct by the sheriff suggesting that he would have dispatched Burton on the mission if the result of the journey could have been known in advance. The thought I would impress is that in the circumstances of this case Burton utilized his official position and the instrumentalities with which he was supplied to protect *Page 381 his mission and to vindicate a claimed right to proceed from jail to court without interference by Overholt or Chandler. The claimed transition from Deputy to independent agency was too instantaneous to justify this Court in saying that a conclusive legal presumption interposes to prevent consideration of obvious facts.
If the judgment is to be reversed the cause should be dismissed. The prevailing opinion expressly finds that on the facts presented Burton was not acting under color of office. There is nothing to indicate that the case was not fully developed; hence we are supposed to have all available evidence.
Mr. Justice ROBINS and Mr. Justice McFADDIN join in this dissent.