Case 15 — Action by Maby Petbie against S. H. Cartwbight, City Marshal, fob the Unlawful Killing of Heb Husband. November 12.

#### Petrie v. Cartwright.

APPEAL FROM TODD CIRCUIT COURT.

Judgment for Defendant and Plaintiff Appeals.

Reversed.

Peace Officer — Right to Kill — Liability—Arrest—Attempt to Escape — Evidence—¡Res Gestae.

Held: 1. Criminal Code of Practice, sections 36 and 43, authorizing a peace officer to make an arrest without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony, such officer without a warrant is not justified in shooting a man "while fleeing to escape arrest ■for an offense less than a felony.

2. Where plaintiff and her sister were insulted by two men, and plaintiff having informed her husband of .the insult, he followed and accosted the men and struck one of them and a scuffle ensued, whereupon, an officer came up and plaintiff’s husband being advised to run, did so, and on refusing to stop at the command of the officer, was shot and killed by such officer; in an action by the wife against the officer to recover damages for the alleged wrongful killing of her husband, evidence as to what took place between the men and plaintiff and her sister was admissible as part of the *res gestae.*

*104PETRIE & STANDARD, attorneys for appellant.

Joe Petrie, while protecting his wife and sister from the most outrageous insults, was assaulted with a deadly weapon, and, being frightened, flees to save his life, and is deliberately shot down by a peace officer. It was a deliberate and cruel act, and when arraigned civilly in a suit for damages, he is shielded by an instruction of the court which makes him the sole arbiter of the lives of his fellow beings.

We insist that this ease should be reversed for the following reasons:

1. Because the court erred in refusing to permit appellant to prove that just prior to the killing, two men, Blye and Crouch were following her and making indecent proposals to1 her and' that said conduct was communicated by her to her husband.

2. Because the answer of the appellee is defective in failing to state that he believed and had reasonable grounds to believe that deceased had committed a felony.

3. Our contention is, that in no ease where the offense is a misdemeanor, is an officer, without a warrant of arrest, justifiable in killing the offender, who is fleeing to escape, although he may believe in good faith and have reasonable grounds to believe, that such offender has committed a felony.

AUTHORITIES CITED.

Head v. Martin, 9. R., 45; Dilger v. Com., 11 R., 67; 3 Ency., p. 892 and notes; Conraddy v. People, 5 Park Crim., N. Y., 234.

C. A. DENNY attorney for appellee.

The testimony shows that Joe Petrie, after being told by his .wife that Blye and Qrouch had insulted her, immediately turned and followed them and finding Crouch in front of the pool room door looking in, without a word of warning struck him on the head from behind with something that was sufficiently heavy and deadly to knock him across the broad pavement and ■out into the street under a buggy and render him senseless; that appellee, who was twenty-five yards away heard the licks that Petrie was inflicting upon Crouch and saw him fall apparently dead, and saw the negro run, and he, appellee, with his official uniform on ran into the light and halted Petrie, and Petrie, seeing him, ran around him and started down the street away from town; the first shot was fired on the ground as a warning to Petrie before he passed appellee and the other shot was fired as the last and only means of apprehending him.

*1051. We. claim that the offense was committed in the presence of the peace officer, and under the law he.had the right to make the arrest without a warrant.

2. That he had the right to' make the arrest without a warrant if he had reasonable grounds for believing that Petrie had committed a felony.

Out of necessity, the officer, in a case like this, is given the Bight to determine in his own mind what offense the fleeing party is guilty of, and if he has reasonable grounds for believing him guilty of a felony he has the right to use all the force necessary to apprehend him.

■Opinion of the court by

JUDGE HOBSON-

— Reversing.

The appellant, Mary Petrie, was going to ber borne in Elkton, Ky., after night, in company with her husband’s sister, Mary Belle. They were followed by two men, named Blye and Crouch; the latter proposing sexual intercourse, and making an exposure off his person. They hurried on, and met doe Petrie, the husband of Mary. She told him of the conduct of the men, and he immediately went back up the street in the direction of them. When he overtook them, he asked Crouch what lie had insulted his wife for. Crouch said, “Damn your wife, and you, too.” Petrie then struck him. A sniffle followed, and Crouch fell. Crouch and Blye were while men. Petrie was a negro. The difficulty c-ame up just in front of a billiard saloon. Blye was cutting at Petrie! with liis knife. Some one called out to Petrie to run, which he did. Appellee Cartwright, who was the city marshal, was in sight a' féw yards off, and, seeing Crouch fall, as Petrie ran past called to him to halt, and, when he did not stop, -fired his pistol in the ground. He then fired a second time, taking aim at Petrie, and killing him. Petrie’s eloches were cut behind. His clothing was cut through and through, and his skin scraped. These cuts were made by Blye while he was scuffling with Crouch. Although the officer called to Petrie twice- to stop, he does not appear to have heard him. Neither recognized the *106other in tho dark. Crouch was very drunk, so that he had no recollection of what occurred. He w'as bruised on the back of the head by the blow or fall, but, except *ai*knot there, received no other injury. The wife, Mary Petrie, then filed this action under section *á*of the Kentucky Statutes to recover for the death of her husband. The defendant pleaded, in substance, that he was acting in his official capacity; that the deceased committed an offense in his. presence by striking Crouch, and immediately turned to. llee; that he tried to stop him, and place him under arrest, and pursued him for that purpose, but could not overtake-him, and was forced to shoot him to prevent his escaping;, that he uised no more forces than was necessary, and that he believed, and had reasonable grounds to believe, that a felony hád been committed; and that he hadino other means, of preventing the escape of the felon but to shoot him. The court instructed the jury that, if the officer believed in good faith, and had reasonable grounds to believe, that Petrie had committed a felony, and, after using all other-available means to arrest him, fired the fatal shot solely in order to procure his arrest, and in doing so used no more force than appeared to him to be reasonably necessary in order to make the arrest, they should find for the defendant. The jury found a verdict for the defendant' under these instructions, and the plaintiff appeals.

We think it evident from the proof that Petrie’s flight was not to avoid arrest, but only to escape w’hat he conceived to be an impending danger. We think it also clear-that the fall of Blye was due rather to his being very -drunk than to any other cause, for he seems to have fallen in the scuffle, and not when he was struck. The jury were warranted in concluding from all the evidence that Petrie had in fact committed no felony. The question, therefore, pre*107.sented is, may a peace officer, to make an arrest upon a suspicion of felony, slioot a person who does not stop when •called upon to halt? The statute provides: “A peace ■officer may make an arrest . . . without a warrant when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person •arrested has committed a felony.” “A private person may make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony.” “No unnecessary force or violence shall be used in making the arrest.” Cr. Code Prac., sections 36, 37, 43. In Dilger v. Com., 88 Ky., 560 (11 R., 67), 11 S. W., 651, the court, after referring to these statutory provisions, speaking of the officers authority, said: “Our statute is silent, save ■as above cited', as to the force he may use. We must, therefore, turn to the common law for guidance. By it, in a case of felony, he may use such force as is necessary to capture the felon, even to killing him when in flight. Where it is ■a misdemeanor, however, the rule is otherwise. It is his .duty to make the arrest, but, unless the offender is resisting to such an extent as to place the officer in danger» of loss of life or great bodily harm, the latter can not kill him. He can only do so, or inflict great bodily harm, when, by reason of the resistance, he is placed in the like -danger. If he meet with resistance, he may oppose sufficient force to overcome it, even to the taking of life.” In the previous case of Head v. Martin, 85 Ky., 481 (9 R., 45) 3 S. W., 622, the court announced the same rule. There it is also said: “Human life is too sacred to admit of a more severe rule. Officers of the law are properly clothed with its sanctity. They represent its majesty, and must be properly protected. But to permit the life of one charged with a mere misdemeanor to be taken when fleeing from the *108officer would, aside from its inhumanity, be productive of' more abuse than good. The law need not go unenforced. The officer can summon his posse, and take the offender.” The authorities are clear that where the offense is only a misdemeanor the officer can not, to prevent his escape,, take the life of the offender when in flight. Head v. Martin, 21 Am. *&*Eng. Ency. Law, 204; Thomas v. Kinkead, (Ark.), 18 S. W., 854, 15 L. R. A., 558, 29 Am. St. Rep., 68; note to Hawkins v. Com., 61 Am. Dec., 162. They are also uniform that an officer may lawfully arrest one who, as he believes, and has reasonable grounds to believe, has committed a felony. Doering v. State, 19 Am. Rep., 669. And it is laid down that in such case he must proceed very cautiously where the person sought to be arrested flees,, as flight is different from resistance. Note to Hawkins v. Com., 61 Am. Dec., 162. But these authorities do not de.termine the question whether an officer acting without warrant is excusable for killing such a person in flight when he had reasonable grounds to believe á felony had Deen committed, although in fact the offense was only a misdemeanor. The common-law rule as to the arrest of a felon is thus stated in 2 Bish. Cr. Law, section 647: “And in cases of felony the killing is justifiable because an actual arrest is rnadr, if in no other way the escaping felon can betaken.” See, also 4 Bl. Comm., 292. In Conraddy v. People, 5 Parker, 234, an officer, who had arrested a person on suspicion of felony, shot and killed him' when he attempted to escape. The deceased was in fact guilty of only a misdemeanor, and the officer was held guilty of manslaughter. To the same effect, substantially, is the case of People v. Kilvington, 104 Cal., 86, 37 Pac., 799, 43 Am. St. Rep., 73. There an officer saw two men running, the-hinder man crying out, “Stop, thief!” He commanded the *109íront man to stop. Tire- order was disobeyed. He then shot and killed him. It was held that, as he had reasonable cause to believe a felony had been committed, and shot merely to intimidate1 the man sought to be arrested, and not with the purpose of bitting him, it was a question for the jury whether he was guilty of criminal n< gligence.

/We have been unable to find any common-law authority1 justifying an officer in killing a person sought to be arrested; who lied, from him, where the officer! acted upon suspicion, and no felony had in fact been committed. The-common-law rule allowing an officer to kill a felon in order-to arrest him rests upon the idea that felons ought not to-be at large, and that the life of a felon has been *forfeited-r*for felonies at common law were punishable with death. But where no felony has been committed the reason of the rule does not apply, and it seems to ns that the sacredness of human life and the danger of abuse do not permit an extension of the common-law rule to cases of suspected felonies. To do so would be to bring many cases of misdemeanor within the rule, for in a large per eem. of those cases the officer could show that he had reasons to suspect the commission of a felony, and it would be left entirely with him to say whether he was proceeding against the defendant for a misdemeanor or for a felony. The notion that a peace officer may in all cases shoof one who flees from him when about to be arrested is unfounded. Officers have no such power, except in cases- of felony, and there as a last resort, after all other means have failed. It is never allowed where the offense is only a misdemeanor, and where there is only a suspicion of felony the officer is net warranted in treating Ihe fugitive as a felon. If he does ibis, ho does so at his peril, and is liable if it turns, out that he is mistaken. He may lawfully -arrest upon *110a suspicion of felony, but lie is only warranted in using such force in making the arrest as is allowable in other cases not felonious, unless the offense was in faot a felony. | “In ,aI3 oases, whether civil or criminal, where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; and, if the party making resistance is unavoidably killed in the struggle, this homicide is justifiable.” 1 Russ. Crimes, 665. In Lindle v. Com. (111 Ky., 866) (23 R., 1307) 64 S. W., 986, this rule was followed where re officer attempted ;o arrest a person upon reasonable grounds to believe he had committed a felony, and was forcibly resisted by him. But where a supposed offender simply fails to stop when ordered to do so, a different principle applies. Although the rule is other wise laid dowm in State v. Evans, 161 Mo., 95, 61 S. W., 590, 84 Am. St. Rep., 669, the question was not before the court in that case; and, as was well said in Thomas v. Kinkead (Ark.) 18 S. W., 854, 15 L. R. A., 558, 29 Am. St. Rep., 70, the rule as thus stated is not sustained by the common-law authorities.

The court should have allowed the evidence as to what took place between Blye and Grouch and the two women; also as to what took place' between them and Joe Petrie; as they were only a short distance from home when the transaction occurred, and before they got home they heard the shots. The whole thing was so closely connected that it should all be regarded as one transaction, and the evidence referred to was competent as *res gestae.*

Judgment reversed, and cause remanded for a hew trial.