#### The State of Iowa, Appellee, v. Thomas Smith, Appellant.

1 Murder: arrest: preventing escape: right of officer. An officer is not justified in taking the life of one who has committed a mere misdemeanor in 'order to accomplish his arrest ór to prevent his escape after arrest.

2 Arrest: aiding an escape: instruction. It is a felony to aid the escape of a prisoner in the custody of an officer, and to prevent the escape the officer may use a deadly weapon if that is the only reasonably apparent method of accomplishing the result; and where the evidence tended to show that deceased assaulted the officer for the purpose of aiding the escape of one under arrest, an instruction that under no circumstances was> the officer justified in taking the life of deceased, was error.

*Appeal from Monroe District Court.*— Hon. Kobert SloaN, Judge.

Tuesday, June 6, 1905.

INDICTMENT for murder. Verdict of manslaughter, and judgment that the defendant be confined in the State Penitentiary for the term of three years. Defendant appeals.

*Reversed.*

*Mitchell, Tomlinson &*Price, for appellant.

*Charles W.*Mullan, Attorney-General, and *Lawrence De*Graff, Assistant Attorney-General, for the State.

DeemeR, J.

Defendant shot and killed one William *535G. Sarver. At the time of the homicide the defendant was a policeman in the city of Albia, and had arrested without a warrant S. D. Sarver, father of William G., for the crime of drunkenness. William G. interfered in the matter, and as a result of the altercation received a pistol shot, from the effects of which he almost immediately died. Defendant contended that the killing was justifiable on two grounds: First, because in defense of his person; and, second, because, it was necessary to prevent a felony, and to secure an arrest of the deceased, or to prevent his escape. •

The trial court gave the following among other instructions :

> (23) When a peace officer, in making an arrest for a misdeameanor, is resisted by violence and force in making such arrest, then such officer has the right to resist force by force; and when the resistance is violent and determined such officer is not bound to malm nice calculations as to the degree of force necessafiy to accomplish the purpose, but may use such a reasonable degree of physical force in overcoming such resistance and effecting such arrest as may reasonably appear’ necessary therefor, and to prevent the escápe of the party whom he is arresting; but he has no right to take the life of such person, or inflict on him a great bodily harm, for the purpose of making such arrest, except when the officer has a reasonable apprehension of peril to his own life or of suffering great bodily harm.

> (24) If you find that the defendant had arrested. S. D. Sarver, and W. G. -Sarver, with knowledge thereof, appeared, and undertook by violence upon the defendant to effect the release of S. D. Sarver from such arrest, then it was the defendant’s duty to arrest him, and his duty to submit thereto; and if the said W. G. Sarver by violence upon or against the defendant resisted such arrest, and attempted to escape therefrom, then the defendant had the right to resist by force, and was not bound to make nice calculations as to the degree of force necessary to accomplish the arrest, but he had the right to use such a reasonable degree of physical force in overcoming such resistance and effecting such arrest and preventing an escape as appeared reasonably necessary therefor; but he had no right to take the life of said Sarver, *536or inflict upon him a great bodily injury, simply to effect tbe arrest, unless be bad reasonable apprehension of peril to bis own life, or of suffering great bodily barm.

Tbe defendant asked tbe following, wbicb were refused, to-wit:

> (1) If you find that S. D. Sarver and Wid Sarver were in a condition of intoxication, and were therefor placed under arrest by tbe defendant, tben you are instructed that it was their duty to submit to sucb arrest, and they bad no right, by violence or otherwise, to resist sucb arrest; and if they attempted to escape from tbe arrest it was defendant’s duty to resist and prevent the escape. And if you find that they did, by violence upon tbe defendant or otherwise, endeavor to escape from sucb arrest, tben it was tbe duty of tbe defendant to do bis utmost to prevent such escape, and in preventing it be bad the right to use all -the force and violence that, under all tbe circumstances and conditions tben surrounding him at the time, seemed to him in good faith, as an ordinarily reasonable man, necessary to prevent sucb attempted escape, even to tbe use of a deadly weapon, if it so seemed to him necessary to use it.

> (3) If you find that tbe defendant had arrested Si. D. Sarver, and that Wid Sarver, the deceased, appeared, and undertook by violence upon tbe defendant to effect tbe release of S. D. Sarver from sucb arrest, then it was defendant’s duty to also arrest tbe said Wid Sarver, and it was said Sarver’s duty'to submit to sucb arrest; and if the said Wid Sarver, by violence upon or against tbe defendant, resisted sucb arrest, and attempted to escape therefrom, tbe defendant had the right to use all the force and violence that to him, in good faith as an ordinarily reasonable man under all the surrounding circumstances and conditions seemed to him necessary to prevent tbe escape.

1. Murder: arrest; preventing escape; rights of officer. Of the instructions given and of the refusal to give those ^asked defendant complains. Taking up tbe ones given in the order quoted, we are of opinion that tbe first mi . # was correct. While the authorities are not m ' harmony upon the proposition involved, the’ better rule seems to be that an officer is not justified in killing *537a mere misdemeanant in order to effectuate bis arrest, or to prevent bis escape after arrest. In snob cases it is better, and more in consonance with modern notions regarding the sanctity of human life, that the offender escape than that bis life be taken, in a case where the extreme penalty would be a trifling fine or a few days’ imprisonment in jail. *[Reneau v. State,*2 Lea, 720 (31 Am. Rep. 626); *Skidmore v. State,*2 Tex. App. 20; *U. S. v. Clark*(C. C.) 31 Fed. 710; *Head v. Martin,*85 Ky. 480 (3 S. W. 622); *Smith v. State,*59 Ark. 132 (26 S. W. 712, s. c. 43 Am. St. Rep. 20); *State v. Moore,*39 Conn. 244; *Dilger v. Com.,*88 Ky. 550 (11 S. W. 651).] To this rule there are some exceptions^ as in cases of riot, mob violence, etc. None of the exceptions'apply to this case, however. The general rule does not, according to the great weight of authority, apply to felonies. Here an officer may oppose force to force, and, if there be no other reasonably apparent method for effecting the arrest or preventing the escape of the felon, the officer may, if he has performed his duties in other respects, take the life of the offender. This rule not only applies to the felon himself, but also to those who are seeking to rescue the prisoner. *State v. Dierberger,*96 Mo. 666 (10 S. *W.*168, 9 Am. St. Rep. 380); *State v. Garrett,*60 N. C. 144 (84 Am. Dec. 359); *Clements v. State,*50 Ala. 117; *Lynn v. People,*170 Ill. 527 (48 N. E. 964); *Jackson v.*State, 76 Ga. 473; *State v. Bland,*97 N. C. 438 (2 S. E. 460).] Even in such cases the officer is not the arbitrary judge as to whether the necessity exists for taking life. That question is ultimately for the jury under proper instructions. *[State v. Bland, supra.*But it is erroneous in such cases for a court to instruct as a matter of/-law that an officer is riot justified in taking the life of a felon. 1 East, P. C. 298. The authorities on this subject are collated in an excellent note found in *Hawkins v. Commonwealth,*61 Am. Dec., pages 151-164. The reasons for these rules are apparent. An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a min*538ister of justice, and entitled to tbe peculiar protection of tbe law. Without submission to his authority there is no security, and anarchy reigns-supreme. He must, of necessity, be the aggressor, and the law affords him special protection. In his Capacity as an individual he may take advantage of the “ first law of nature,” and defend himself against assault; as an officer he has an affirmative duty to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted to obstruct the wheels of justice.

2. Arrest: Aiding an escape; Instruction. Now, in the present case there was evidence tending to show that after the defendant had placed S. D. Sarver under arrest for drunkenness, • and was endeavoring to take him to jail, he (Sárver) was attempting to escape from arrest, and that W. G. Sarver made an assault upon the officer for the purpose of aiding his father to escape; that the defendant tiren attempted to arrest W. G. Sarver, who resisted the same, and continued his assault upon the policeman; and that finally defendant shot W. G. Sarver, inflicting wounds from which he (Sarver) died. To meet this feature of the case the trial court gave the twenty-fourth instruction, which, in effect, announces the rule that under no circumstances was the officer justified in taking the life of W. G. Sarver. In this, we think, there was manifest error. There was evidence tending to show that both before and after the arrest of W. G. Sarver he (Sarver) was resisting and assaulting the officer, not only to effectuate his own escape, but also to secure the release of his father, S. D. Sarver. Section 4896 of the C.ode provides that: “Every person who aids or assists any prisoner in escaping or attempting to escape, from the custody of any sheriff, deputy sheriff, marshal,' constable, or other officer, or person who has the lawful charge, with or without a warrant, of such prisoner, upon any criminal charge, shall be fined not exceeding one thousand. dollars, and imprisoned in the penitentiary not ex*539ceeding five years.” Tbe penalty provided for tbe prohibited acts makes tbe crime a felony, and tbe law as to the duties, obligations, powers, and rights of an officer in making arrests and preventing escapes of those engaged in the commission of a felony clearly applies. *State v. Turlington,*102 Mo. 642 (15 S. W. 141).

Tbe third instruction asked by tbe defendant, or something like it, should have been given. The killing must, of course, be apparently necessary, for one is not' justified in taking human life if there b'e any other effective way of effecting the arrest; but this is a question of fact for a jury, and not of law for the court. The Attorney-General contends that there is no evidence in the case which called for an instruction on this subject. The trial court thought differently,' and submitted the matter to a jury under an erroneous instruction. Such being the record, prejudice will be presumed, and the case must be reversed, unless it affirmatively appears that the error was without prejudice. The defendant’s testfi mony — 'which we shall not set out at this time — :was such as to call for a proper instruction on the subject, for it tended to show that W. G. Sarver was engaged in the commission of a felony, to-wit, of attempting to secure the escape of a prisoner in the custody of a policeman, when the fatal shots were fired. If the jury believed the defendant’s statements, it might have found that W. G. Sarver made an assault upon the defendant, a policeman, after he had lawfully arrested S. D. Sarver, for the purpose of securing the. escape of S. D. Sarver. In so doing he was engaged in the commission of a felony, and defendant, as an officer, had the undoubted right to use a weapon to prevent this felony; if that were the only reasonably apparent method of accomplishing the result. *State v. Moore,*31 Conn. 479 (83 Am. Dec. 159); *Pond v. People,*8 Mich. 150; *Ruloff v. People,*45 N. Y. 215; *People v. Angeles,*61 Cal. 188. A killing under such circumstances, however, must be for the honest and non-negligent purpose of *540preventing tbe felony, and not for some other reason. *People v. Burt,*51 Mich. 199 (16 N. W. 378).

'The trial court was in error in giving its twenty-fourth instruction, and the judgment must therefore be *reversed.*