(Filed 28 May, 1901.)
1. HOMICIDE — Manslaughter — Evidence — Sufficiency — Officer.
The charge of the trial judge in this case that, if the jury believed the evidence of the defendant, he was guilty of manslaughter, is correct.
2. ARREST — Without Warrant — Officer — The Code, Sec. 1126.
The superintendent of a convict gang is not such an officer as contemplated by The Code, sec. 1126.
3. ARREST — Homicide — Arrest Without Warrant.
The superintendent of a convict gang, not known to be an officer, has no right to shoot or kill one who, having committed petty larceny and having escaped from prison, is running away to avoid arrest.
INDICTMENT against W. S. Stancill, heard by Judge Thos. J. Shaw, and a jury, at September Term, 1900, of GASTON. From a verdict of guilty of manslaughter, the defendant appealed.
Robert D. Gilmer, Attorney-General, for the State.
Clarkson Duls, Osborne, Maxwell Keerans, and Burwell, Walker Cansler, for the defendant.
CLARK and COOK, J. J., dissenting.
The prisoner was indicted for the murder of one Frank Rozzell, who had been convicted of the larceny of one peck of corn, growing in the field, in the Criminal Court of Mecklenburg County, in December, 1888, and sentenced to twelve months' imprisonment in jail, with leave to the Commissioners to hire him out. And under this sentence he was placed on the chain gang for that county, and on 14 (607) January, 1889, he escaped. F. W. Sossaman was the superintendent at that time. The prisoner had been superintendent of the camp for two years or more before he killed Rozzell. The homicide occurred in Gaston County, and it was in evidence that the deceased had been living in that county for nine or ten years.
There were several witnesses introduced for the State, among them William Black, whose character was proved to be good; and among other things he testified: "I asked Stancill if he caught his man, and he said the first time he shot he did not shoot to hit him; but the second time, if he missed him, it was not his fault, for he aimed right at his back. He said he could have caught the durned rascal, but he did not want to."
But as the Court put its charge on the prisoner's evidence, we give that in full:
Wm. S. Stancill, the prisoner: "I was superintendent of convict camp for Mecklenburg County for two years or more prior to the shooting. It is the duty of the superintendent to capture escaped convicts. I heard of Frank Rozzell being in Gaston County. Griffin spotted escapes. He located and reported and I went to capture him. I had no warrant or other proof for Rozzell when I shot him. I met his wife at the door, and she said her husband had gone off. I saw him standing at the window. I went to the window. He had stepped about down inside of the house, and I said: `Hold up; you are my prisoner.' He did not give me time to tell him who I was. Scott was coming around to meet me, and deceased made for the door. He got out and ran, and I after him. He fell first, and I got close to him, and I fell, and he gained distance on me. I was hallooing `Halt' every jump. I had my pistol in my hand. I ran him a piece of the way. I got up and shot, and had no intention (608) to hit him the first time, nor second time. I ran him until I gave out at branch, and he got out of sight. I did not know he was hit till Saturday night afterwards, and this was on Wednesday morning. I turned back, and met Mr. Black, and he asked me if I was after him for that old grudge, and I told him I was; and he said they were getting a petition to have him pardoned; and I told him if I had known that I would not have bothered him. I think I told Mr. Black if I did not catch him it was not my fault. I did not tell him I did not try to catch him. I made both shots in the cotton patch, and he jumped the fence after he was shot. I told Sheriff Love and Chief of Police of Charlotte that I shot to frighten him, and did not intend to hit him, and did not know until they arrested me that I had hit him. I had no badge of office on."
Cross-examined: "I won't swear that I did not state to Mr. Black that I aimed to hit. Don't remember having told Rufus Johnston that I shot to kill him. I did not notify the deceased that I was an officer or that I was connected with the convict camp in Mecklenburg County."
The Court charged the jury that if they believed the evidence of the prisoner he was guilty of manslaughter, upon his own evidence. Prisoner excepted and, upon judgment being pronounced, appealed to this Court.
The prisoner puts his defense upon the ground that he had the right to arrest Rossell, under section 1126 of The Code; and if this is so, he had the right to arrest Rossell, who was an escaped convict, as the superintendent of the convict camp. And, finally, that Rossell, being an escaped felon, he had the right, as a private citizen, to arrest him; and, having this right, he had the right to shoot and kill him if necessary.
We do not think the prisoner had the right to arrest, under section 1126 of The Code. He was not a "sheriff, coroner, constable or officer of police, or other peace officer, entrusted with the care and preservation of the public peace," within the meaning of that statute. Nor do we think the fact that the prisoner was the superintendent of the convict camp in (609) Mecklenburg County gave him any authority to make the arrest, under the facts in this case. And in saying this, we will not be understood to say that we do not think the superintendent of a convict camp would not, ordinarily, have the right to arrest an escaped convict. This, we think he would have, where the convict knew that he was such superintendent. And he would have this right in such case without making known the fact that he was such superintendent, as this would be useless if the escaped prisoner knew the fact. Nor do we think that, in such a case, it would be necessary for such superintendent to procure any other authority to do so. In fact, we know of no one who would be authorized to give him any other authority.
But, in this case, it had been ten years since Rossell escaped, and when he did so, one Sossaman was the superintendent. The prisoner did not know Rossell, and had him pointed out; and there is not the slightest evidence that Rossell knew him, or knew that he was superintendent of convicts in Mecklenburg County. This being so, we are of the opinion that the prisoner had no more right to make the arrest than any private citizen would have had.
The case then comes down to be discussed upon the right a private citizen would have had to make the arrest, and the duties developing upon him, and rights and liabilities in making such arrest.
A private citizen has the right to arrest a felon, whether he is present when the felony is committed or not. When he is not present, it devolves on him to show that the felony, for which he arrested, had been committed. Neal v. Joyner, 89 N.C. 289. He has the same right in cases of an escaped felon. 2 Am. and Eng. Enc., 887, and note 1.
Where a known officer is attempting to make an arrest (610) for an assault and battery, and the defendant knows what he is wanted for, the officer need not show his warrant. But it is otherwise if the officer is not known to the defendant, and, in such case, he would have to show the warrant. S. v. Garrett, 60 N.C. 144.
A private citizen, attempting to arrest a felon without warrant, must make his purpose known, and for what offense. And unless he does so, the party attempted to be arrested has the right to resist the arrest. Neal v. Joyner, and S. v. Garrett, supra; S. v. Belk, 76 N.C. 10; S. v. McNinch, 90 N.C. 695.
Where a private person undertakes to arrest a felon or an escaped felon, and has made his purpose and reason for the arrest known, he must then proceed in a peaceable manner to make the arrest, and if he is resisted he may use such force as is necessary to overcome the resistance, if used for that purpose alone. 2 Am. and Eng. Enc., 906, note 2. But this is put upon the ground that the party attempting to make the arrest becomes personally involved, and he has the right to defend himself. S. v. Bryant, 65 N.C. 327. But where the attempted arrest is for a petty larceny, as in this case, and the party runs off, the party attempting the arrest has no right to shoot and kill him. S. v. Bryant, supra.
In this case the prisoner did not make himself known to the deceased, nor the reason for the arrest. Nor did the deceased resist the arrest, but ran as for his life and the prisoner ran after him and shot and killed him. This he had no right to do.
In S. v. Roane, 13 N.C. 58, a case in some respects similar to this, Judge HENDERSON commenced his opinion by saying: "If the facts stated are true, the defendant has no cause to complain of the verdict." And it seems to us that if the evidence in this case is true, the prisoner has no cause to complain of the charge of the Judge, the verdict of the jury, or the sentence of the Court.
No error appearing to us, the judgment is (611)