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HOLLAND v. MARTIN, ET AL
Adams Long, for appellant.
The peremptory instruction should have been given for plaintiff below. As a matter of law defendant below's own version of affair did not justify his hitting appellant with the pistol much less does it justify his shooting appellant twice with it.
We start out with the full concession on our part that the sheriff could not be classed as an aggressor and that he could claim the right of self-defense in a proper case. Further that after a deadly weapon is drawn or attempted to be drawn that there is no requirement that he retreat.
But we confidently say that when attempting to arrest a misdemeanant his own size, age and agility, when several citizens are near that could be deputized to help, that an officer is not authorized to use a deadly weapon on such a person until such person has threatened to use a deadly weapon upon the officer. An officer is bound by the same rules in self-defense as an individual (subject to the two exceptions above).
We quote from C.J.S., par. 137, p. 1022, Vol. 40, where the rule is admirably stated: "Where a public officer or other person having legal authority to make an arrest is lawfully engaged in an attempt to arrest and is resisted by the person to be arrested in such a manner that he believes, on reasonable grounds, that he is about to be killed or to receive great bodily harm, he may resist force with force, and, if it is necessary in self-defense, he is justified in taking the life of such person. Although, as appears supra Par. 102, an officer generally is held justified in killing to effectuate the arrest or prevent the escape of a felon even though it is not necessary for him to do so in self-defense, but is not justified in killing a misdemeanant merely to effectuate his arrest or prevent his escape, nevertheless where the resistance offered by a misdemeanant is such as to create in the officer the reasonable belief that he is about to be killed or to receive great bodily harm, the officer may be justified in killing on the ground of self-defense. However, the mere fact that a person resists arrest and assaults the person attempting to make the arrest does not necessarily and alone give to the latter a right to kill to protect his person from bodily harm; there must be a real or apparent necessity to justify a resort to such an extreme measure." Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904; Wallace v. State, 21 So. 662; Skidmore v. State, 43 Tex. 93[ 43 Tex. 93]; Harper v. State, (Texas), 207 S.W. 96; Holland v. State, 162 Ala. 5, 50 So. 215; Murkison v. State, cited in the note, 11 Ala. App. 105, 65 So. 684; Hammond v. State, 147 Ala. 79, 41 So. 761; Brown v. Weaver, 76 Miss. 7, 23 So. 388.
From the doctrines enunciated in these cases and the general trend of them, whereby officers are never to use excessive force on a misdemeanant to effect his arrest or to make a convicted misdemeanant obey orders (or to do either great bodily harm) and are prohibited from killing or doing great bodily harm even to a fleeing felon except where his arrest could not reasonably be effected otherwise, we confidently say that our courts will follow the rule laid down in 6 C.J.S., p. 826, par. 23, under "Assault and Battery" and the cases there cited to uphold the rule, to-wit: "Shooting, killing, or inflicting great bodily harm on a person in an endeavor to arrest or retake him, where he has escaped from arrest for a misdemeanor or from arrest under a civil warrant, is excessive force constituting an assault, unless it be in self-defense. It is otherwise in the case of a felony, liability of the officer in such case depending upon whether he acted in good faith and had reasonable grounds to believe person had committed a felony."
The Alabama case of Loveless, et al. v. Hardy, 201 Ala. 605, 79 So. 37, cited under this text sets out the rule that armed force cannot be resorted to by the officer in misdemeanor cases except where armed force is encountered or the officer's life is threatened or the officer is in danger of great bodily harm, the same as our rule on self-defense.
"It is recognized as a general rule that in a case of a misdemeanor an officer has no right, except in self-defense, to kill the offender, either in attempting to make an arrest, or in preventing his escape after arrest. Yet when an officer, while lawfully arresting a person charged with the commission of a misdemeanor is resisted by armed force, he is not compelled to retreat, but may use such force as will enable him to overcome the resistance offered him, even to the extent of taking the life of the offender, if he is actually resisting to such an extent as to place the officer in danger of his life or of great bodily harm. 2 R.C.L. 473, and authorities cited in note."
E.K. Windham, and Lumpkin, Bacon Owen, for appellees.
In 4 Am. Jur. 52 our position is stated as follows: "If the offender resists, he (the officer) may use such force as may be required under the circumstances to overcome the resistance, even to the extent of taking life, if such is necessary."
"The jury is, of course, the arbitrator of the amount of force which could be properly used under the circumstances of the particular case." 4 Am. Jur. 53-54.
Counsel for appellees also understood these principles of law when he asked for and was given Instruction Number 5, reading as follows: "The court instructs the jury for the defendant, that if you believe from the evidence that the defendant was attempting to arrest the plaintiff and that plaintiff was resisting such arrest, and in such resistance made an unlawful attack upon the defendant and that the defendant, as a reasonable man, believed he was in danger of great bodily harm at the hands of the plaintiff, then the defendant had the right to use such force as was reasonably necessary to prevent such injury."
The only question presented by this appeal is: Was this a proper case to be submitted to the jury? If the court was in error in submitting the issues of facts in the case to the jury, then the jury system should be abolished.
As a matter of fact, appellant's quarrel is not with the trial judge but with the jury. Appellant has the erroneous idea, prevalent among many lawyers, that quantity of testimony should outweigh quality of testimony.
The jury knew Mr. and Mrs. Martin, and they knew Holland, the man who boasted "Everybody knows me". They saw him to be the strong physical giant of a man as described in appellees' answer. They believed appellees' version of what happened, and they believed he used no more force than was necessary to protect himself from great bodily harm at the hands of appellant.
The jury has decided that, and this Court will not interfere with the verdict of the jury simply because appellant had more witnesses than appellees. In Faulkner v. Middleton, 186 Miss. 355, 190 So. 910, this Court settled this question, and as long as that case stands, this Court will not interfere with the verdict of the jury where its verdict responds to reason upon the evidence produced.
1. Sheriffs — arrest — fugitive misdemeanant.
A sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shooting of a misdemeanant who flees to avoid arrest.
2. Sheriffs — arrest — fugitive misdemeanant.
A sheriff owes to a fugitive misdemeanant the duty to exercise care and precaution not to injure him, and he must not intentionally shoot a fugitive misdemeanant, nor must he discharge a firearm while in pursuit in such manner as to cause injury to the fugitive.
3. Arrests — misdemeanant — limitation upon use of physical force.
In arresting or preventing the escape of a misdemeanant, an officer may exert such physical force as is necessary to effect the arrest by overcoming the resistance he encounters, but he cannot take the life of the accused or inflict great bodily harm upon him except to save his own life or to prevent like harm to himself.
4. Homicide — repelling attack of unarmed man.
One may not ordinarily repel the attack of an unarmed man, not his superior in physical power, by killing him because in such case the attack of one upon the other without a deadly weapon furnishes to the one attacked no reasonable ground to anticipate danger to life or the infliction of great bodily harm.
5. Homicide — not justified, when.
A killing may not be justified on account of apprehension which is reasonably no more than that some minor battery might be inflicted upon the person who does the killing.
6. Arrest — shooting misdemeanant — liability for damages.
Where the sheriff in attempting to arrest an unarmed misdemeanant, intentionally shot him and there was no evidence of such disparity in size and physical strength between the misdemeanant and the sheriff as warranted the sheriff in reasonably anticipating great bodily harm or death at the hands of the misdemeanant, he was liable for the compensatory damages resulting therefrom and a requested peremptory charge to that effect should have been given.
Headnotes as revised by Holmes, J.
On Suggestion of Error 7. Arrest — disparity in physical strength.
The officer may act upon reasonable appearances and it is not necessary that he shall first engage in physical combat with the misdemeanant to determine the disparity in size and physical strength between them, but the danger of death or great bodily harm because of such disparity must be reasonably apparent to the officer and the justification, upon such grounds, of the use of firearms must be supported by proof.
8. Arrest — aggressor.
Because an officer in making an arrest must of necessity be the aggressor, he cannot be deprived of the right of self-defense merely because he is the aggressor, but he is still not justified in using firearms to repel the attack of an unarmed misdemeanant not his superior in physical strength and power.
Headnotes as approved by McGehee, C.J.
Holmes, J.
The appellant brought this suit in the Circuit Court of Prentiss County against Sale Martin, Sheriff of Prentiss County, and American Surety Company of New York, surety on his official bond, seeking to recover actual and punitive damages in the total sum of $50,000. Liability was predicated upon the claim that the sheriff, in wrongfully undertaking to arrest the appellant for a misdemeanor, maliciously attacked and assaulted the appellant by beating him over the head with a pistol and shooting him twice in the leg, inflicting upon him serious and permanent injuries. At the conclusion of the testimony, the appellant was refused a requested peremptory instruction and the case was submitted to the jury on the theory as announced in given instructions, that if the sheriff struck and shot the appellant in necessary self-defense, real or apparent, or in the use of only such force as was necessary to effect his arrest, the verdict should be for the defendants. The jury returned a verdict for the defendants and judgment was entered accordingly, and from this judgment the appellant prosecutes this appeal.
The testimony on behalf of the appellant showed substantially the following: That on or about September 3, 1948, at about sundown or just before dark, he was driving his model A Ford automobile on new highway 49, proceeding in a northerly direction. He stopped at Moore's Store, which is situated at the intersection of old highway 49 and new highway 49, and called to the proprietor, Mr. Moore, to bring him two pounds of bologna. While he was sitting in his car, the sheriff drove up to the right of him, riding in a car with his wife. He asked the appellant if he knew that his taillight was not burning and appellant replied that he knew that it was not burning and for that reason he was trying to get off the highway before dark. The sheriff then asked appellant who he was and appellant told him. The sheriff then asked to see his driver's license and as he was getting it out of his wallet, the sheriff reached into the car and caught the appellant by the arm and told him to get out, saying that he was going to take him to jail. As appellant was in the act of getting out of the car, the sheriff struck him twice with his gun over the head and the gun discharged into the ground and the sheriff then shot him twice, hitting him once in the knee and once in the leg about four inches above the knee.
The testimony offered by the sheriff and his wife was to the effect that he and his wife were proceeding north in a 1947 Ford automobile on highway 49 on the evening in question and that the appellant passed them in his automobile; that the sheriff observed that the appellant had no taillight and that when the appellant stopped at Moore's Store, he, the sheriff, drove up near him and asked him if he knew that his taillight was not burning; that the appellant replied, "Hell, yes, I know it, what else do you want to know"; that the sheriff then asked appellant if he had a driver's license and that appellant replied, "Hell, yes, I have got one"; that the sheriff told the appellant to show his driver's license and that the appellant got out of the car and reached to get his pocket-book and that the sheriff then told him to stop cursing, that there were ladies present, and further told him that he was arresting him for cursing and for the manner in which he was acting; that a scuffle then occurred and the appellant hit the sheriff and the sheriff hit the appellant over the head with his gun and that the appellant then started on the sheriff and the sheriff shot in the ground; that appellant continued to advance on him and he shot him in the leg. The sheriff further claimed that appellant struck him twice, once on his neck and once on the side of his head. The sheriff admitted shooting the appellant twice, claiming that if the appellant had not resisted him and made an attack on him, he would not have shot him. It is undisputed that the appellant was wholly unarmed. The record discloses no evidence of such disparity in size or physical strength between the appellant and the sheriff as warranted the sheriff in reasonably anticipating great bodily harm or death at the hands of the appellant.
It is the contention of the appellant that the trial court erred in refusing to grant his requested peremptory instruction. Assuming the testimony on behalf of the sheriff to be true and assuming it to be true also that the sheriff had the right to arrest the appellant for a misdemeanor committed in his presence, the question is presented as to whether or not the sheriff was justified in resorting to the use of firearms in overcoming the appellant's claimed resistance to arrest. It was said in the case of State, to Use of Johnston v. Cunningham, 107 Miss. 140, 65 So. 115, 117, as follows: (Hn 1) "There can be no question that a sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shooting of a misdemeanant who flees to avoid arrest. (Hn 2) The officer owes to the fugitive the duty to exercise care and precaution not to injure him. He must not intentionally shoot a misdemeanant who is a fugitive, nor must he discharge a firearm while in pursuit, in such a manner as to cause such fugitive injury." The rule is well recognized that (Hn 3) in arresting or preventing the escape of a misdemeanant, an officer may exert such physical force as is necessary to effect the arrest by overcoming the resistance he encounters, but he can not take the life of the accused or inflict upon him great bodily harm except to save his own life or to prevent a like harm to himself. Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L.R.A. 423. In the case of Hill v. State, 94 Miss. 391, 49 So. 145, 146, the Court said: "It is doubtless true that (Hn 4) one may not, ordinarily, repel the attack of an unarmed man, who is not his superior in physical power by killing him, because in such case the two men, being of equal size and physical strength, the attack of one upon the other, without a deadly weapon, does not furnish to the one attacked reasonable ground to anticipate danger to life or the infliction of great bodily harm." Again it was held in the case of Smith v. State, Miss., 6 So.2d 134, that (Hn 5) a killing may not be justified on account of apprehension which is reasonably no more than that some minor battery might be inflicted upon the defendant.
(Hn 6) Since the proof in this case is wholly undisputed that the sheriff intentionally shot the appellant on the occasion in question not only once, but twice, and that at the time the appellant was wholly unarmed, and since the record does not disclose such disparity in size and physical strength between the appellant and the sheriff as justified the sheriff in reasonably anticipating great bodily harm or death at the hands of the appellant, we are of the opinion that the sheriff was not afforded reasonable grounds to apprehend the infliction of great bodily harm upon him or death at the hands of appellant, and it follows, therefore, that we are of the opinion that the sheriff was not justified in striking the appellant with his pistol and shooting him under the facts as disclosed by this record. We think, therefore, that the peremptory instruction requested by the appellant should have been granted. Accordingly, the judgment of the trial court is reversed and judgment is rendered here for the appellant on the issue of liability, and the cause is remanded for trial only on the issue of compensatory damages. We are of the opinion that the facts of this case are not such as to warrant the allowance of punitive damages.
Reversed and judgment here on issue of liability and remanded for trial only on the issue of compensatory damages.
McGehee, C.J., and Lee, Kyle, and Arrington, JJ., concur.
Holmes, J.
ON SUGGESTION OF ERROR.McGehee, C.J.
Appellee urges with much seriousness a suggestion of error in this case and expresses concern lest the opinion of the Court herein will restrain and restrict law enforcement officers in the proper discharge and performance of their official duties. We find no basis for such concern.
The opinion rendered in this case announces no new principle of law. We have repeatedly condemned the reckless and unnecessary use of firearms by officers in dealing with misdemeanants. We have held that an officer is not justified in shooting a fleeing misdemeanant in order to prevent his escape. We have also held that an officer is not justified in resorting to the use of firearms in attempting to arrest a misdemeanant except to protect himself from reasonably apparent bodily harm or death at the hands of the misdemeanant. On the other hand, we have held that an officer, in attempting to arrest a misdemeanant, may use such force as is necessary to overcome the resistance which he encounters, but is not justified in resorting to the use of firearms except to protect himself from reasonably apparent great bodily harm or death at the hands of the misdemeanant. It has been the law of this State for more than sixty years as announced in the case of Hall v. State, Miss., 1 So. 351, that one may not repel the attack of an unarmed man not his superior in physical power by slaying him, since such attack does not furnish reasonable grounds to anticipate danger to life or great bodily harm. An officer may, of course, resort to the use of firearms to subdue a misdemeanant whom he is attempting to arrest if it is reasonably apparent to the officer that by reason of the disparity in size and strength between him and the misdemeanant he is in danger of suffering great bodily harm at the hands of the misdemeanant, and this even though the misdemeanant may be wholly unarmed. (Hn 7) It is not necessary, of course, as argued by the appellee, that the officer shall first engage in physical combat with the misdemeanant to determine the disparity in size and physical strength between them. The officer may act upon reasonable appearances, but the danger of death or great bodily harm because of such disparity in size and strength must be reasonably apparent to the officer situated as he is then situated, and the justification of the officer upon such grounds must be supported by proof. There was no such proof in this case. (Hn 8) We recognize the fact that an officer must of necessity be the aggressor in undertaking to arrest a misdemeanant, and that he stands on a different footing from one acting in an individual capacity, and can not be deprived of the right of self-defense merely because he is the aggressor. He is still, however, not justified in resorting to the use of firearms to repel the attack of an unarmed misdemeanant not his superior in physical strength and power, since such attack does not furnish reasonable grounds to anticipate danger to life or great bodily harm.
These principles have long been recognized as the law of this State and we think that instead of furnishing or affording a restraint or restriction upon law enforcement officers in the proper discharge and performance of their official duties, they afford an additional safeguard for the officers in justifying their resort to firearms for the purpose of overcoming resistance to the arrest of an unarmed misdemeanant. In thus applying the law which has been recognized in the State for a long period of years, we think that it should create no apprehension or concern that law enforcement officers will, by its application, be improperly restricted or restrained in the proper discharge and performance of their official duties.
In a supplement to the suggestion of error, the appellee contends that the case of State of Mississippi for use of Smith v. Broom, Miss., 58 So.2d 32, is in conflict with and overrules the opinion heretofore rendered in the case at bar. We do not concur in this contention. The two cases are clearly distinguishable. In the Smith case there was no resort to the use of firearms; there was evidence of great disparity in size and physical strength between the misdemeanant and the arresting officer; there was a plain conflict in the evidence on the question as to whether or not the officer used only such force as was necessary to effect the arrest and prevent the infliction of great bodily harm upon him. In the case at bar, there was no proof of great disparity in size and physical strength between the misdemeanant and the arresting officer; there was no dispute of the fact that the misdemeanant was wholly unarmed; there was no dispute of the fact that the officer struck the misdemeanant over the head with his pistol and shot him twice in the leg. This presents an entirely different case on the facts from the Smith case, supra, since on the record as made in the case at bar, appellee was not furnished reasonable grounds to apprehend danger to life or great bodily harm such as to justify him in shooting the appellant.
The suggestion of error is accordingly overruled.
Suggestion of error overruled.
Lee, Kyle, Holmes, and Arrington, JJ., concur.
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