The West Virginian. [volume] (Fairmont, W. Va.) 1914-1974, 1922-09-19
LAW REGARDING
ARRESTS GIVEN
NUGH|E|NPRASIS
Continued rom Page one)

epntlnusp7 lEom rage Onel
eide, yet IN the past few days and
aimee the body Of this charge was
dictated there did occur an usual
case of homicide in this county, a
Gaze 81 an officer while making an
arrest shooting an escaping con-
Wet. q very unfortunate and re-
gretable occurrence, and probably
regretted by no one more than BY
the person himself who committed
the act In considering this case
you VIII bear in mind that homi-
eide y OF four kinds; malicious,
unlawful, exc1sable and justifi-
able md Il must be determined
from the facts and circumstances
to whtch class the act belongs.
The question as to the amount
Of fptce an officer may use in
making an arrest presents several
Interesting and important angles.
The generalrule Is that an officer
armed with a warrant may use
~ necessary force to place under
arrest the person or persons
named In the warrant, but this is
subject to important exceptions.
Tho law never Clothes a person
with authority to make an arrest
without at the same time placing
upon him the DUTY OF making II.
In the discharge of this duty the
arresttng party may use ali the
force that is necessary TO effect
the arrest even under some cir
cumstances to the point OF killing,
but the use OF unnecessary force
can never be Justified. An officer
VINO s making lawful arrest or
VINO nus made an .trrest Is justi-
ned 70 using such force as is rea-
spnably necessary TO secure and
detain the offender. overcome his
reslstance prevent his escape, re-
CAPTURE him IL he escapes and to
protect himself from bodily harm;
hui he u never justified in using
uilnecessafy force or treating his
prisoner with wanton violence or
m resoruhg to dangerous means
when the arrest could be affected
oiherwise But within reasonable
bounds the amount OF force and
ineai,s employed are necessarily
left to the sound discretion OF the
In 4 recent West Virginia case
State VS.. Boggs) our Supreme
goatts says: Shooting with Are
Arms by officers in pursuit Of
uzittyes charged with minor
lcrines as a ruse to prevent fur
ther flight, is illegal as reckless
use Of firearms, and an officer
must not intentionally shoot a
misdemeanant who is a fugitive,
nor must he discharge a firearm
Bhtte IN pursuit in such a manner
as 10 cause such fugitive injury :"
lnthis case however, the Sup.
reme Court was dealing with one
feeling from pursuit charged only
with q misdemanor, and greater
degree Of force may be exerted In
taxing one who Is convicted or ac.
FUSED of "a Felony. This dIstinc-
ton e OF long standing and we
lind q Judge In. one OF the earls
Engl h cases stating the law 10
BIZ ~ aifelony be committed and
the telon fly from justice or a
dzngerous wound be given, It is
the duty OF every man TO use his
best endeavors for preventing an
escape, and II in the pursuit the
fslon be killed, where he cannot
otherwise5 be taken, the homicide
= justfable. But IL he may be
talses without any severity, it is
At least granddaughter In him who
Kills him.
follows then that an officer
Whole duty it Is to make an arrest
may use all force that Is necessary
even to the point of taking life,
WHEN THERE, is NO OTHER
Way OF MAKING THE AR
REST, But 1t is his duty TO use
no unnecessary harshness or vio-
lenees and II he does So. he be-
comes liable and in case Of taking
HE may be guilty of manslaught-
er or even murder according to
the degree of wantonness and
reeklessress manifested in the
homicide,
a distinction must again be
noted between one resisting arrest
and attempting to evade arrest b.
tight the one being an active
evasion and the othe" passive. In
case Of resistance the officer may
ind himself placed upon the de-
tensiye and he is justified In re-
peiling force with force and using
all necessary means to protect
himself and effect the capture Of
the offender. But even under cir.
cumstanees of flight. the dIstinc.
lion between a felon and misde-
nieanor Is recognized. An English
sase decided many years ago
states the law in this respect as 1t
existed at that time and still
exists, The case Of flight is differ
ant from resistance. II the war
rant be for felony, flight is tanta-
mount to resistance. and the fly
tfs telon may be justlfably killed
Il ne cannot otherwise be secured.
m casesgof misdemanor resistance
VIII Justify killing, though flight
will not, for in such case the law
eonsiderst 1t better that the accus-
Cd should escape than that life
be taken"
In arresting for felony a peace
pttieer or even a private person
actlhg without a warrant may, IL
necessary, kill a felon IL he reslsts
OF hfes so that he cannot other.
Wise be taken, but the law does