CHARLESTON.

#### State v. Stockton.

Submitted March 18, 1924.

Decided September 9, 1924.

1. *Arrest*— May *Arrest, or Cause Arrest of, Persons Engaged in Breach of Peace in His Presence.*

A justice of the peace, under section 221 of chapter 50 of the Gode, has the right to airrest, or cause to toe arrested, persons engaged ,in a breach of the peace committed in his presence, and to have said offenders brought before him for trial, and in pursuance of his authority under said action, lie has the authority to order any person to carry out his orders. (P. 48).

(Arrest, 5 C. J. § 26).

2. *Homicide*— Private *Person Making Arrest at Command of Justice of Peace May Exercise Right of Self-Defense-, Even Though Belief■ That Life Endangered May Prove to he Groundless.*

When a private person is commanded by a justice of the peace to arrest and bring before him persons engaged in a breach of the peace committed in the presence of said justice, such person so commanded .is bound under the law to obey the orders of the justice, and in so doing such person is protected by the law, and, without a warrant for the arrest of the offenders, he miay enter their premises, and in a legal manner execute said commands, and if, while he is attempting to execute said oamamnd® upon one he has been commanded to arrest, he is attacked by him in such a manner or under ■such circumstances a® to furnish reasonable grounds for apprehending a design to take away Ms life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent that such design will be accomplished, and he has reasonable grounds to believe, and does *47believe, sulcb danger is immlinent, be anay act upon sucb appearances, and, wiitbout retreating, bill bis assailant, if be has reasonable grounds to believe, and does believe, tbat sucb killing is necessary in order to avoid the apparent danger; and the killing under sucb circumstances is excusable, although it may afterwards turn out 'tbat the appearances were false, and that there was in fact neither design to do him some serious injury nor danger tbat it would be done; but of all this the jury must judge from all the evidence and circumstances of the case. (p. 48).

(Homicide, 30 C. J. § 256).

Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.

Error to Circuit Court, Booue County.

J. P. Stockton was convicted of voluntary manslaughter, and he brings error.

*Reversed, and remanded for new trial.*

*B. J. Pettigrew,*for plaintiff in error.

*E. T. England,*Attorney General, and *R. Dennis Bteel;*Assistant Attorney General, for the State.

McGinnis, Judge:

Defendant obtained a writ of error to a judgment of the circuit court of Boone County, wherein he was' sentenced to one year imprisonment upon the verdict of a jury finding him guilty of voluntary manslaughter. We will make no comments upon the evidence further than is necessary to disclose the errors assigned.

It appears that on the 12th day of August, 1922, there was a disturbance of the peace at the town of Yalco in said county, and that the justice of the peace who maintained an office in said town and lived a short distance therefrom was informed of the disturbance. He came to the town of Yalco for the purpose of quieting the disturbance and arresting the persons involved therein. Soon after he arrived, and while he was on the store porch of the coal company which operated a coal plant at that place, he saw one Dave Crockett chasing a woman with a rock in -his hand. He called upon. some of the persons present on this store porch to go down and arrest this man Crockett and they refused to go, saying that *48they were unarmed, and the justice of the peace then called upon the defendant, Stockton, who was at the time at his home which was near the store porch, and told him to get a gun and go down and arrest these people, who were engaged in this disturbance of the peace, naming one Casto and the said Dave Crockett.

The defendant in pursuance of the order of the justice, procured a pistol and went down a short distance from where he was at the time to the house of one Clevenger, where he found the man Casto and arrested him and took him before the justice, who turned him over to some other parties who were present; and the justice again commanded the defendant to go down and arrest Dave Crockett who was at the time, in the language of the justice, “raising sand down there around the house.” Stockton proceeded to the residence of Crockett and about the time he got there Crockett came out of his house with a chair in his hands. All that was said' at the time by the prisoner and the deceased was not understood by the other witnesses who saw the shooting, the distance being too great or the voices too low, all of the witnesses except the defendant being some distance away, the nearest being about sixty feet from the point where the defendant attempted to make the arrest. It appears that when the defendant approached Crockett and demanded that he come with him, and told him that he had been authorized by the justice to arrest him and take him before the justice for being drunk and disorderly, Crockett refused to go, holding the, chair. As to whether or not he advanced toward the officer with the chair there seems to be some conflict of testimony. However, it is undisputed that the defendant attempted to arrest him and he refused to go with the defendant, saying he was not going anywhere; and a number of witnesses, both for the State and the defense, stated that he advanced in the direction of the defendant with the chair, and as stated by the- defendant, he threw his hand in his hip pocket and was attempting, apparently, to draw something therefrom. According to the testimony of the defendant, deceased ordered him to stop while he was approaching and threatened to knock his brains out, and at the time he advanced upon him, deceased had his hand in his hip! pocket and threatened to *49kill tbe defendant. Tbe defendant then presented bis pistol and told tbe deceased tbat under tbe order of tbe justice be demanded bis surrender and tbat be bad come to arrest bim; tbat be wanted bim to come with bim to tbe justice, wbieb deceased refused to do and advanced toward tbe prisoner with a chair held in a threatening manner.

Tbe prisoner presented bis pistol and ordered bim to stop, which be did, and placed tbe chair on tbe ground and -threw bis band to bis hip pocket and said, “G-od damn you, I will kill you”, and, tbat while Crockett was advancing upon bim, be fired one shot aimed low, which shot took effect in one of Crockett’s legs. This shot did not seem to stop tbe deceased ; be kept advancing upon tbe defendant, tbe defendant fired two other shots each of which entered tbe left side of tbe deceased and from tbe effects of which be died within a few days afterwards.

Tbe defendant was tried and found guilty of voluntary manslaughter and sentenced to tbe penitentiary for one year as stated above.

There are several errors assigned by counsel for tbe defendant but we do not deem it necessary to go into any of them except tbe giving of improper instructions to tbe jury on behalf of tbe state over tbe objection of tbe defendant and tbe refusal of tbe court to give to tbe jury proper instructions offered by tbe defendant. The state’s instruction numjber one, is as follows:

> “The Court instructs the jury that if they believe from tbe evidence that tbe prisoner was not a peace officer and had no warrant for tbe arrest of tbe deceased at the time of tbe shooting, that the prisoner bad no legal right to arrest the deceased, and the deceased bad a right to resist the arrest when attempted by the prisoner, with reasonable force, proportioned to tbe injury attempted upon bim, but no more. And if the jury find from the evidence tbat the prisoner attempted to arrest tbe deceased and tbe deceased resisted such arrest, or refused to be arrested, but did not use any more force than was necessary to prevent such arrest, and did not attack or offer to attack tbe prisoner in such a manner as to give bim, tbe prisoner, good grounds for believing tbat be was *50in danger of death or great bodily harm at the hands of the deceased, then yon should find the prisoner guilty of one of the offenses charged in the indictment, but not however, of murder in first degree. ’ ’

. We are of the opinion that the court erred in giving this instruction to the prejudice of the defendant. This instruction seems to have been given upon the theory that by reason of the fact that the defendant did not have in his possession, at the time, a warrant for the arrest of the said Crockett then he was in fault; that the deceased had the right to defend himself from an illegal arrest; and this seems to have been the theory upon which the case was tried.

The offense for which the defendant attempted to arrest the deceased was committed in the presence of the justice, and constituted a breach of the peace, and was an infraction of the law over which the justice had jurisdiction. The justice saw the deceased, with a stone in his hand, running after a woman who was retreating from him. He had been informed of a disturbance of the peace before he arrived upon the scene of the trouble, and when he arrived the disturbance was still going on and he saw a portion, at least, of it. It was his duty as a conservator of the peace to suppress the trouble, quiet the disturbance and to arrest, or cause to be arrested, the persons engaged therein; and this he had the authority to do under Section 221, Chapter 50 of the Code (Barnes’ 1923) which is as follows:

> “The proceedings before the justice shall be by warrant of arrest in the name of the State, except that when an offense of which the justice has jurisdiction is committed in his presence, or in that of a constable, either of them may forthwith apprehend the offender or cause him to be apprehended, and in such case the offender may be tried before the justice and dealt with according to law, without such warrant.”

Section 15 of Chapter 147 of the Code is as follows:

> “If a person, being required by a justice, on view of a breach of the peace or other offense, to bring before him the offender, shall refuse or neg*51lect to obey the justice, he shall he punished as is provided in the preceding section for refusing to assist a sheriff; and if the justice declared himself to he such, or if he be known to the offender, ignorance of his office shall not be pleaded as an excuse. ’ ’

This instruction tells the jury that if they believe from the evidence that the prisoner was not a peace officer and had no warrant for the arrest of the deceased at the time of the shooting then the prisoner had no legal right to make the arrest in the manner described in the instruction. The un-contradicted testimony shows that the prisoner was not a peace officer except as so authorized by the justice in this particular case, and that he had no warrant when he attempted the arrest; this instruction under the facts in this ease should not have been given.

The prisoner was vested with all the authority necessary to carry out the commands of the justice; his disobedience would have subjected him to fine and imprisonment, and when he entered the yard of the deceased in obedience to his appointment and order, he was protected and supported by the power of the state, as much so as he would have been had he at the time been an officer and had in his possession a legal warrant for the arrest of the deceased. The justice had the authority under section 221 of chapter 50 of the code to cause the persons engaged in that disturbance in his presence to be arrested and brought before him for trial. We do not think the point raised by the attorney general; in his brief that the disturbance had subsided at the time the prisoner was deputized, is supported by the facts in this case. At the time the justice deputized the prisoner to arrest deceased he was still “raising sand” around the house and the fact that he had ceased to disturb the peace at the time the officer arrived at the point where he attempted to make the arrest could in no reasonable view of the law, nullify his appointment or affect his authority to make the arrest. For the foregoing reasons, the said instruction does not embody the law of this case and the giving of the same to the jury was prejudicial to the prisoner.

Instruction Number Two given for the state, is also bad. *52This instruction embodies the law where a difficulty arises between two persons and both are in fault. In the present case the prisoner was not at fault at the time the difficulty arose, he was lawfully acting' under the direct order of the justice and could in no sense be treated as being in fault under the facts in this case at the time he entered the yard of the deceased and attempted to make the arrest, and if he was resisted, he was not required to retreat. His duty was to arrest the deceased “peaceably if he could, forcibly if he must.”

*State*v. *Garnett,*60 N. C. 144, 84 Am. Dec. 359. *In re Laing,*127, Fed. 213.

He was performing a duty he did not seek but one he had been ordered to perform. There was no feeling of animosity on his part toward Crockett, he had but a short acquaintance with him, and he had had no trouble with him. He had been informed that Crockett was a dangerous man, and -he was required by the justice to arm himself.

“An officer in the performance of his duty as such stands on an entirely different footing from an individual. He is a minister of justice,' and entitled to the peculiar protections of the 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, as long as he keeps within due bounds, be protected; sentimentalism should not go so far as to obstruct the due administration of the law, and brute force should not be permitted to obstruct the wheels of justice.” Opinion of the court in *State*v. *Smith*127 Iowa 524, 103 N. E. 944.

“An officer who is resisted by another whose arrest he is seeking to make can avail himself of the usual right of self-defense which permits an individual to use such force as may be necessary to-protect himself from grievous bodily harm, or loss of life, but the protection which an officer is entitled to receive in making an arrest is a different thing from self defense although he may as a matter of course defend him*53self like any other person who is assaulted. The law does not stop here, bnt because he must of necessity be the aggressor and must press forward and accomplish his object the law throws around him a special protection.” 2 R. C. L. 473.

The state’s instruction No. 3, which was objected to by the prisoner and assigned as error seems to be in compliance with the law as enunciated in the twelfth point of the syllabus in the case of *State*v. *Gain,*20 W. Va. 679. Notwithstanding the fact that an instruction embodying the same principles and almost in the identical words of this instruction was approved in the Cain case, and reaffirmed in *State*v. *Greer,*22 W. Va. 800, and in a proper case is the law, yet do the facts in this case justify this instruction? In the case of the *State v. Dickey*46 W. Va. 319 this court in passing upon instruction No. 6 in that ease which embodies the law as decided in the twelfth point of the syllabus of the Cain case *supra,*and is practically the same as instruction No. 3 in the present case, held that “this instruction is certainly well calculated to mislead the jury. No evidence is found in the record on which to base the proposition of bare fear of harm, unaccompanied by any overt act.” In *State*v. *Robinson,*20 W. Va. 714 this court held that an instruction which assumes an important and material fact as true which is not conceded in the case should not be given. This instruction assumes an important fact; that the prisoner acted from bare fear unaccompanied by any overt act. This assumption is not borne out by the evidence in the present case, and we hold that the court erred in giving this instruction.

In this case by reason of his deputation by the justice the defendant was an officer appointed for the purpose of arresting the deceased and was ordered to| arrest him and bring him before said justice for trial, for the offense committed in the presence of said justice, and at the time he attempted to arrest the deceased he refused to be arrested, threatened the life of the defendant, saying- he would knock his brains out, and at the time the deceased had in his hands a chair and he advanced on the defendant with his hand in his hip pocket telling defendant that he would kill him, and said he “was not going, anywhere”. The defendant states that he backed from him till he was against the fence and fired the *54first shot low which took effect in deceased’s leg, this did not stop deceased and he continued to advance and defendant fired the other shots which resulted in the death of the deceased. The court could not assume under these facts that the prisoner was actuated by bare fear that the deceased intended to commit murder or other atrocious felony and that it was unaccompanied with any overt act indicative of such intention.

Defendant’s instruction No. 7 follows point seven of the syllabus in case of *Stats*v. *Cain, supra.,*and the court erred in refusing to give this instruction. It was evidently refused on the ground that the prisoner was in fault when attempting to arrest the deceased because of the fact that he had no warrant.

Instruction No. 8 offered by the defendant was properly refused. There is no evidence of a riot or unlawful assembly. The court did not err in refusing to give instruction No. 9 offered by the defendant. It is ambiguous and while it contains the principles involved in. this case, it is calculated to mislead or confuse the jury. Stockton was ordered to arrest the deceased and not to assist any one to arrest him, he was commanded to arrest him and he was for that purpose an officer himself and as such was entitled to the protection of the law. Instruction No. 10 offered by the defendant and given as amended by the court, did not prejudice! the prisoner, and the court did not err in amending the same and giving it as amended.

For the foregoing reasons the judgment of the court below must be reversed, the verdict of the jury set aside and the case remanded for a new trial.

*Reversed, and remanded for new trial.*