St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-12-17
Supreme Court.
OCTOBER TERM.

OCTOBER TERM.
The State of Minnesota, respondent, VS..
Granville L. Spaulding, appellant.
Syllabus-An attempt to make an arrest
by an officer authorized to make it is OF itself
no provocation in law, since every person is
bound to submit to the ordinary courts OF
justice, and the officers warrant is protec-
ton to him for all acts reasonably required
for its execution; hence, the Intentional Kill
ing of an officer acting In the proper ols-
charge of his duty must ordinarily constitute
the offense of murder in the first degree. So
the malicious and premeditated killing OF an
officer acting under void process is murder.
Notwithstanding circumstances OF provoca-
ton or conflict which might otherwise reduce
the offense to manslaughter. But where the
question of actual malice or generalization is
in dispute and the question Of the grade OF
the offense is open for the jury, in the case OF
an attempted arrest, the existence OF process
or its validity becomes material; hence error
in the reception of evidence of the existence
or contents of warrant in
cases where its possession is re-
quired, is presumptively prejudicial.
Where tho defendant in a criminal case is
sworn as witness in his own behalf, his rail-
ure to explain or contradict evidence OF con-
duct or admissions tending to criminate him,
is the proper subject Of comment before the
Jury. and may be considered by them on the
question of his credbility. Where. upon the
trial of an indictment for murder, the state
undertook to justify an attempted arrest by
the deceased under warrant issued by q
justice af the peace, which was claimed to be
lost, before secondary evidence can properly
be received of it's contents, the foundation
must be laid therefor by evidence sufficient to
establish reasonable presumption of its loss.
The testimony Of the magistrate who dellv-
cred it to the officers, ''That he had not since
seen it and did not know where it was; that
he had searched for it thoroughly and had not
t. . 81 kalN nrrfE ntn mt fn
raise such presumption. Where an offer of
evidence embraces several distinct facts
some of which are incompetent or immaterial,
the whole may be rejected. The defendant
on the trial of an Indictment for killing an
officer while attempting his arrest, may, for
the purpose of rebutting evidence of malice
and of preparation to resist an arrest by
the officer show that he had armed
himself in expectation of q felonioas assault
by another party with whom he had quar-
rel and who had threatened or attempted to
kill him the same day. But evidence OF the
transaction out of which such quarrel arose
would be immaterial and improper upon the
examination in chief. Evidence offered to
contradict witness by way Of impeachment
must relate to a material issue.
A party whose arrest is attempted should
first be notified of the purpose of the officer.
For this no particular form of words is nee
essary. tits enough that the officer and his
first instance used the words ''you are my
prisoner" held competent evidence OF nOtii-
cation by him of his business. 1t is not nee
essary that he should exhibit his warrant be-
fore the arrest.
Whether or not in cases of homicide in re-
sisting an officer the accused understood him
to be an officer and knew his business. and
also any irregularity or want Of authority in
making the arrest are matters proper to be
considered in determining the question of
provocation or the grade of the offense
whether the arrest was duly authorized or
mott, unless in self-defense, in order to pro-
tect himself from great and imminent per-
sonal injury, as the case would appear to men
of fair average intelligence, prudence and
frmneSS. VANDERBURGH, j.
OCTOBER TERM.
National German-American Bank, respond
ent, VS.. E. T. Wilder. assignee Minnesota Ele-
vator Company, appellants; argued and sub
mitted.
John Heinrich, Sigmond Weidenback,
Adolph Heinrich and Gustav Heinrich, part
ners doing business under the firm name of
the Heinrich Brewing Association, respond
ents, vs. Hans England; argued and SUBJ
mitted.
John Conray and Thomas Conray, copart-
ners as J. g. L. Conray, respondents, VS.. Ho-
race G. Newport and J. c. Flynn, partners as
Newport & Flynn, appellants; appeal dis
missed without costs to either party.