Plummer v. State

Plummer v. State
135 Ind. 308, 34 N.E. 968
Ind. 1893.
October 10, 1893

Stuart Bros. & Hammond and Saunderson & Comparet, for appellant. John T. Brown, for the State.

McCABE, C. J.

Appellant was indicted by the grand jury of Newton county, charging him, in six different counts, with the murder of James Dorn, in the first and second degrees, in the different counts, respectively. There was a change of venue granted to the court below, where, on a plea of not guilty and a plea of insanity, a trial resulted in a verdict finding appellant guilty of voluntary manslaughter, and fixing his punishment at 15 years' imprisonment in the state prison. After overruling appellant's motions for a new trial, in arrest, and to be discharged, the court below rendered judgment on the verdict. Among the errors assigned here is the overruling the motion for a new trial, and among the reasons assigned for a new trial were the giving, and refusing to give, certain specified instructions, and that the verdict is contrary to the evidence. It appears from the evidence, which is very voluminous, and quite impracticable to set out in this opinion, that the deceased, James Dorn, was a stout man, 48 years of age, with no ailment except at times he had been afflicted with rheumatism, though he seemed free from that at the time of his death; was the marshal of the town of Kentland, and had been for eight or nine years. Appellant, Plummer, was about 60 years old; had been suffering with chronic diarrhea contracted in the army, for which he was receiving a pension; was in bad health generally, and unable to work; somewhat smaller than Dorn, and not so stout; had always been peaceable and quiet; had lived in Kentland, and about there, ever since the war, and owned the house and lot in said town in which he lived. The town board of said town of Kentland had made an order requiring him to trim certain shade trees thereon, to which he objected, and, pending the dispute about it, appellant, Plummer, became very much excited, and about noon on the 20th day of June, 1892, he left his house with his loaded revolver in his hand, and went onto the business streets of said town inquiring for the members of said town board, making threats that he was not to be fooled with, saying they had ordered his trees to be cut down, and that he would shoot them; and, while so talking in an excited manner he would frequently brandish his revolver around. John Keefe told him that the town board would not cut his shade trees down, and that he had better go home. About this time, one Elliott called out for the marshal, or Dorn, and perhaps both, and he pointed his revolver at said Elliott, and said to him, “Call for the marshal again, damn you, and I will kill you;” and “Bring on your marshal. I'll fix him.” He also pointed his revolver at one Conklin, a member of the town board. Immediately after Keefe advised him to go home, he started in the direction of his home, carrying and flourishing his revolver in his hand. While he was yet in sight of those at the place where he started, and still going in that direction, Dorn, the marshal, came from another direction, up to the place from which Plummer had started. Keefe warned Dorn to be careful; that Plummer had a gun. Dorn then stopped, took his coat from his arm and laid it on a box, changed a revolver from his left to his right hip pocket, and took his billy in his left hand, and started on after Plummer, saying he was not afraid of him. When he came within 20 feet of overtaking Plummer, they both walking in the same direction, he took out his revolver, and held it in his right hand, and his billy in his left hand, and ordered Plummer to put up his revolver. Plummer told him to keep off, or keep back, while Plummer walked on, looking back at Dorn as he followed him up, Dorn repeatedly ordering him to put up his gun or revolver, and Plummer repeatedly warned Dorn to keep back, or keep away from him. While the two were thus proceeding, Dorn dodged behind shade trees on the sidewalk, stepped up behind Plummer, as one of the witnesses expressed it, on his “tiptoes,” and struck Plummer on the side of his head with his billy, and then on the back and arm, which knocked the revolver out of Plummer's hand, and thereupon Dorn fired on Plummer, missing him. Immediately thereafter, Plummer fired on Dorn, missing him, and they continued firing at each other until three or four shots had been fired. Dorn jumped behind a shade tree, and was making ready to fire again, when Plummer fired the fatal shot that killed Dorn, and he fell down and died. Dorn's second shot lodged a ball in Plummer's left side, making only a flesh wound. It is conceded that Dorn fired the first shot, though Plummer's first shot was so close to Dorn's first that it was difficult to tell which one was first. There is no direct evidence as to what Dorn, the marshal, was intending to do with Plummer, but the theory of the state is that he was intending and attempting to arrest Plummer without a warrant, for his several acts in pointing his revolver at Elliott and Conklin, and for carrying such revolver with the intent or avowed purpose of injuring his fellow man. Dorn did not inform Plummer that he desired or intended to arrest him. In a written statement made by Plummer, read in evidence, he states that Elliott began to call for Marshal Dorn, as he supposed, to arrest him. Plummer knew that Dorn was marshal of the town. Both offenses for which it is claimed the marshal was attempting to arrest Plummer were misdemeanors. Rev. St. 1881, §§ 1984, 1985.

> A marshal is not authorized to arrest in all cases for misdemeanors without a warrant. He can only arrest for such offenses without a warrant when the offense is committed in his presence or sight. Rev. St. 1881, §§ 1702, 5976; section 828, Elliott's Supp.; Doering v. State, 49 Ind. 56; Bow v. Beckner, 3 Ind. 475; Gillett, Crim. Law, § 156; Murfree, Sher. § 1161. The attorneys for the state concede this to be the law, but they contend that inasmuch as some of the witnesses testify that, when Elliott called the marshal, in their opinion he was within hearing, and could have heard the call, and come onto the scene within a minute or two, he was in contemplation of law, present, or the alleged offenses were committed in his presence, in contemplation of law. They cite Wiltse v. Holt, 95 Ind. 469. That case lends some support to that contention. Assuming, however, without deciding, that the alleged offenses were committed in the presence or sight of Marshal Dorn, within the meaning of the law, and that he therefore had legal authority to make the arrest without a warrant, we are led to inquire whether he confined himself to the limits prescribed by the law in the exercise of that authority, and, if he transcended those limits, what effect that had upon his authority, even if he had the right to make the arrest without a warrant. He stepped up behind Plummer, and without requesting him to submit to arrest, or informing him that he desired to arrest him, with his revolver in one hand and his billy in the other, and without any act or provocation or resistance on the part of Plummer other than his traveling on towards his home with his revolver in his hand, and telling Dorn to keep back, or keep away from him, Dorn struck him on the side of the head with said billy, which was a policeman's club. The law does not allow a peace officer to use more force than is necessary to effect an arrest, (1 Amer. & Eng. Enc. Law, 745, and authorities there cited;) and, if he do use such unnecessary force, he thereby becomes a trespasser from the beginning, and may be lawfully resisted, (Murfree, Sher. § 1164a, and authorities there cited; Id. §§ 1160, 148; Jarratt v. Gwathmey, 5 Blackf. 237; Burton v. Calaway, 20 Ind. 469.) If the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking the life of the person arrested, if absolutely necessary. 1 Bish. Crim. Proc. § 160; 1 Amer. & Eng. Enc. Law. 745, and authorities there cited; Murfree, Sher. § 1164a. But here the evidence wholly fails to show any necessity for the marshal's act in striking Plummer on the head with his club. He therefore was a trespasser in doing so, and was guilty of an aggravated assault and battery on Plummer. He did not stop at that, but he shot at Plummer with his revolver immediately after he struck him on the head, and before Plummer had fired at him. This gave Plummer a clear right to defend himself, even to the taking the life of his assailant. It is not necessary, to authorize one to exercise the right of self–defense, that the assailant should in fact contemplate injury to him. If he believed, and had reason to believe, from the actions of his assailant, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent. West v. State, 59 Ind. 113; Agee v. State, 64 Ind. 340; McDermott v. State, 89 Ind. 187. When a person, being without fault, is in a place where he has a right to be, and is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self–defense, his assailant is killed, he is justifiable. Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1. These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence. Agee v. State, 64 Ind. 344; Jones v. State, 26 Tex. App. 1, 9 S. W. Rep. 53; 1 Amer. & Eng. Enc. Law, 745, and note 1; Golden v. State, 1 S. C. 292; Beaverts v. State, 4 Tex. App. 175; Skidmore v. State, 43 Tex. 93. Plummer was on the street, going home. He had a right to be there, and he had a right to carry his revolver home with him, and even though the marshal supposed he was carrying it openly, with intent or avowed purpose of injuring his fellow man, that did not justify the extreme measures he resorted to. He approached Plummer with his revolver in one hand and his club in the other, and struck Plummer on the head. This furnished reasonable ground for the belief in Plummer's mind that he was in danger of receiving great bodily harm, and the circumstances show that he did believe it; and, though Plummer may have instantly begun to prepare to defend himself against this unlawful assault, he did not shoot until after Dorn fired on him. The statute provides that an arrest under a warrant is made by an actual restraint of the defendant, or by his submission to the custody of the officer, but that the person arrested shall not be subject to any more restraint than is necessary for his arrest and detention, and the officer must inform him that he acts under the authority of a warrant, and show it, if required. Rev. St. 1881, §§ 1687, 1688. Where an arrest is made for a misdemeanor, without a warrant, the reasons for requesting the person to submit to such arrest are as great as, if not greater than, where there is a warrant. We are constrained to hold that Dorn, if he even had the right to make the arrest without a warrant, abused that authority by striking Plummer over the head with his policeman's club. Had he informed Plummer that he intended to arrest him, and requested him to submit to such arrest, and then Plummer had refused to submit, and resisted, or threatened to resist, arrest, with any demonstration of force, a very different question would have been presented. In such a case the officer, as we have seen, having authority to arrest, would have been justified in using force sufficient and necessary to overcome such resistance, even to the taking of the life of the person he was attempting to arrest. We therefore hold that the verdict was contrary to the evidence.

The ninth instruction of the series of instructions given by the court on its own motion was to the effect that Dorn had a right to strike Plummer with his billy or club for the purpose of making him surrender to his authority. This was error. The fourteenth instruction of said series was as follows: “(14) If you find from the evidence that, on the day of the alleged homicide, the defendant left his house in the town of Kentland, Indiana, at about or shortly after noon, with a loaded revolver in his possession, and that with such revolver he went upon the public streets of Kentland, where citizens were passing to and fro; that, when he was upon the street or streets, he openly carried said revolver in his hand or hands; that he was in an excited condition of mind, and while in this condition he inquired for members of the town board, and made threatening remarks about the members of said town board, or any other citizen of said town, or any other fellow man, with intention and purpose to injure such person or persons; and if you further find that he then and there flourished or brandished said revolver,—then I instruct you that such open wearing or carrying said revolver was a violation of a criminal statute of this state, and that the defendant was a wrongdoer, and for which violation of law he was subject to immediate arrest without a warrant, and could have been held in custody until a legal warrant could have been procured, and proceedings had under it, according to law. And if you further find that while said defendant was on the street flourishing or brandishing his revolver, if in fact you so find, he was talking or muttering to himself, or if you further find under the facts stated, if they be facts, that while he was in conversation with others, or talking or muttering to himself, one J. R. Elliott called for the town marshal in a loud tone, so that the defendant heard him, and that he immediately turned toward the said Elliott, and pointed said revolver at him, although you may find he was some distance away, and if you find that when he pointed said revolver at the said Elliott, if you find that he did so point it, he cried out: ‘Bring on your marshal. I'll fix him,’ or words to that effect, then I instruct you that such pointing at said Elliott, whether it was done with wicked intent or for mere foolishness or in jest, was a violation of a criminal statute of this state, for which the defendant was liable to immediate arrest without a warrant, and could be held until such reasonable time that a legal warrant could be obtained, upon which he could be legally tried. And I instruct you further that under the facts stated, if they be facts, and while the said defendant was still upon the street, and the marshal came upon the street, though at some distance away, but where he could see the defendant while he was still flourishing and brandishing his revolver, or while he was still pointing it towards the said Elliott, it was not only his right, but his duty, as a peace officer, to pursue and arrest the defendant without a legal warrant, and such arrest, if made, would be justifiable under the law. And I instruct you further that if you find from the evidence that the said marshal. James Dorn, under the facts above stated in this instruction, if they be facts, pursued the defendant, even though you may find the defendant was going towards his house, with the intention of arresting the defendant for said violation of law, and, when the said Dorn came up to or near the defendant, he found the defendant still had his revolver in his hand, that he was talking to himself, and was acting in an unnatural manner, either from excitement, anger, or otherwise; and if you find from the evidence that the said Dorn called to the defendant, and commanded him to put up his gun or revolver; and if you further find from the evidence that, instead of putting up his revolver, he turned towards the marshal, pointed his revolver at him, flourished and brandished it in his face, and made any threatening remarks to the marshal; and if you find that the defendant knew Dorn was the marshal,—then I instruct you that such acts of the defendant would be in violation of the criminal law of this state, for which he was liable to immediate arrest without a warrant; and it was not only the right, but the duty, of the marshal to arrest him at once, and the marshal was authorized to use such force as was necessary to accomplish his arrest. And if you find that the said Dorn did, as such marshal, in discharge of his duties as a peace officer of said town, undertake to arrest the said defendant, that the defendant resisted his attempts to arrest him, and that Dorn did not use unnecessary force or rigor in attempting to make the arrest, and that, while he was so attempting to make said arrest, the defendant shot and killed him, then you should find the defendant guilty, unless you find beyond a reasonable doubt that the killing was justifiable on the ground of self–defense, or unless you find, beyond a reasonable doubt, that the defendant was of unsound mind at the time.”

There are several errors in this instruction. The first is that it in effect tells the jury that if the appellant, in an excited state of mind, inquired for members of the town board, and made threatening or menacing remarks about them, or any other citizen of said town, or any other fellow man, with intention to injure such person or persons, and if he flourished or brandished said revolver, then such open wearing was a violation of a criminal statute of this state. It is only the act of openly carrying or wearing a dangerous or deadly weapon with intent or a vowed purpose of injuring a fellow man that is made criminal by the statute. Rev. St. 1881, § 1985. That part of the instruction makes the offense to consist of making threatening or menacing remarks about the town board or other citizen with intent to injure, etc., instead of the act of openly carrying the revolver with such intent. The instruction was erroneous in that it, in effect, told the jury that for pointing his revolver at Elliott, and saying, “Bring on your marshal. I'll fix him,” the defendant was liable to immediate arrest without a warrant, and that it was the right and duty of the marshal to pursue and arrest him, though no part of said acts were perpetrated either in the presence or sight of the officer, because it says: “And while the defendant was still upon the street, and the marshal came upon the street, though at some distance away, but where he could see the defendant while he was still flourishing and brandishing his revolver, or while he was still pointing it toward said Elliott,” then he might make the arrest, etc. The instruction had already told the jury that pointing the revolver at Elliott would be sufficient cause for arrest without a warrant, and then supplemented the same by stating, as a qualification thereto, the proviso that the officer was near enough to see the act done, but puts it, “could see defendant while he was flourishing and brandishing his revolver, or while he was still pointing it at Elliott.” This would leave the jury to conclude that the officer would have the right to make the arrest if he saw the defendant either brandishing his revolver or pointing it at Elliott. The statute does not make the brandishing or flourishing a dangerous or deadly weapon a misdemeanor, but it is the drawing, or threatening to draw, such a weapon upon any other person, that is made criminal. Rev. St. 1881, § 1984. The instruction proceeded upon the theory that appellant had resisted arrest, and, while so doing, made threatening remarks towards the marshal. There was no evidence of either, and the instruction was calculated to mislead the jury to conclude that there had been such evidence. There are perhaps other respects in which the instruction set out was erroneous.

The fifteenth instruction by the court of its own motion is still more objectionable, because it told the jury that a peace officer might make an arrest in such a case without a warrant, and without any qualification whatever. This, we have seen, is not the law. But the most serious and fatal objection to the fourteenth instruction above set out is the concluding part, which tells the jury, if they find a certain state of facts recapitulated to be true, then they must find the defendant guilty, unless they find beyond a reasonable doubt that the killing was justifiable on the ground of self–defense, or unless they find, beyond a reasonable doubt, that the defendant was of unsound mind at the time. The sixteenth repeats the same proposition as to the defense of insanity. As long as there is a reasonable doubt of the sanity of a defendant in a criminal case at the time of the commission of the alleged offense, there must necessarily be a reasonable doubt of his guilt, and, as long as there is a reasonable doubt whether the homicide was not committed in the reasonable exercise of the right of self–defense, there is also a reasonable doubt of the guilt of the accused. The instructions in question required the defendant to prove his innocence in that respect beyond a reasonable doubt, the homicide being established. There was much evidence tending to prove appellant's insanity at the time of the commission of the alleged offense, and the evidence strongly tended to establish that the homicide was committed in self–defense. It was therefore error to instruct the jury that they should find the defendant guilty unless they found beyond a reasonable doubt that the killing was justifiable on the ground of self–defense, or unless they found beyond a reasonable doubt that the defendant was of unsound mind at the time. Polk v. State, 19 Ind. 170; Stevens v. State, 31 Ind. 485; Guetig v. State, 66 Ind. 94; McDougal v. State, 88 Ind. 24; Plake v. State, 121 Ind. 433, 23 N. E. Rep. 273. The attorneys for the state, conceding that the instructions under consideration were erroneous in the respect mentioned, claimed that in the instructions given at the request of the appellant, and those given at the request of the state, and those given by the court on its own motion, all of which are exceedingly voluminous, the court had correctly instructed the jury upon the point in question at least 25 times, and that therefore it must have been a “slip of the pen” by which the court had made these two read as they do, and therefore they say we cannot think that it could have influenced the jury to find the defendant guilty. It is true that quite a number of the instructions given do correctly state the law on the point in question; but this court has frequently decided that an erroneous instruction cannot be cured by giving a correct one, unless the erroneous instruction is thereby plainly withdrawn. McDougal v. State, supra; Kingen v. State, 45 Ind. 518; Howard v. State. 50 Ind. 190; Kirland v. State, 43 Ind. 146; Heyl v. State, 109 Ind. 589, 10 N. E. Rep. 916. There was no attempt to withdraw the erroneous parts of the instructions mentioned. The instructions were all in writing, and none of them attempted to withdraw the erroneous instruction. The judgment is reversed, with instructions to sustain the motion for a new trial.

Ind. 1893.
PLUMMER v. STATE.
135 Ind. 308, 34 N.E. 968