People v. Lathrop

Defendant was accused of the crime of assault with intent to commit murder and the jury found him guilty of assault. The court sentenced him to pay a fine of three hundred dollars and to serve a term of three months in the county jail. The appeal is from the judgment and an order denying his motion for a new trial. As stated by appellant, he relies for reversal upon three grounds: “(1) That the court erred in the admission of certain testimony offered by plaintiff and objected to by defendant; (2) That the court misdirected the jury in certain instructions given to the jury at the trial; (3) That the court erred in refusing to give to the jury certain instructions requested by the defendant. ’ ’

It is not disputed that the evidence is sufficient to support the verdict. It appears without conflict that Soares, the complaining witness, was hunting upon the land of the de

[1] It- is quite apparent that no prejudicial error was committed in the matter to which the first objection is addressed. The effect of that testimony is that Soares was not able to work for “about a month and a half” after he was shot, and that the wounds “bother me sometimes, once in a while they hurt me a little bit.” It is the claim of appellant that this testimony “could throw no light upon whether or not the defendant was guilty of ■ the offense charged” and that it had a tendency to excite the sympathy of the jury for the prosecuting witness, and thereby influence the verdict. But we think it was proper to introduce such evidence to show that a “violent injury” was done to the person of Soares. It is true that the charge involved only an attempt to commit a violent injury and that the defendant might have been convicted without having consummated such attempt, yet in such cases it is proper to show the character of the injury that was actually inflicted as evidence that the defendant intended such consequences. Besides, the testimony added nothing of substantial import to the testimony of the physician who described the wounds. From that description it would necessarily follow that the

The instruction of which appellant complains was as follows : “You are further instructed that under section 837 of the Penal Code of the state of California, which permits a private person to arrest another for a public offense committed or attempted in his presence, it is not intended that the private party making the arrest has the right to proceed to the extremity of shedding blood or shooting the offender, in arresting or in preventing the escape of one whom he has arrested for an offense less than a felony, except in self defense, even though the misdemeanor be committed in the presence of such private person.” The claim of appellant is that this was equivalent to an instruction to the jury that because defendant may have shed the blood of Soares or shot him he was guilty of the offense, whether the defendant intended to shoot him or not. It is asserted that “it was for the jury to determine whether under all of the circumstances the acts of the defendant were unwarranted or unreasonable,” and “the defendant was entitled to have the jury consider whether he intended to shoot Soares, or whether he merely fired to frighten Soares and cause him to cease his flight.”

The theory of defendant as to the test to be applied to his conduct is more explicitly declared in this instruction given by the court at his request: “That if you believe from the evidence that the defendant arrested the said Soares for the commission of a public offense in the presence of the defendant and the said Soares escaped from the defendant, then the defendant could lawfully and immediately pursue and retake the said Soares at any time and in any place within the state of California.

“That in so pursuing and recapturing the said Soares, the defendant could lawfully perform such acts as are usually and not uncommonly used under similar circumstances in the stopping of arrested persons when fleeing from lawful

The criticised instruction was framed by the district attorney to meet the view of the law generally recognized by the authorities that neither an officer nor a private citizen, who has arrested a third party, for a misdemeanor, has the legal right intentionally to seriously injure or to kill the one arrested merely to prevent his escape. The subject is fully considered in a note to State v. Phillips (Iowa), 67 L. R. A. 292 . Therein the doctrine is announced and authorities cited to support it that “An officer has no right to shoot a person who is merely running away from him without committing any violence, when under arrest, or to avoid arrest for a misdemeanor.” The rule is declared to be otherwise in case of a felony. It would indeed be abhorrent to the moral sense of every right-thinking citizen to uphold such brutality where the offense involved is so petty as a mere misdemeanor and the arrest is attempted without a warrant. [2] And yet the arresting officer or individual has the right to pursue the escaping prisoner and use whatever force may be necessary for his arrest and detention. (See. 835, Pen. Code.) No doubt, to accomplish this purpose he may use whatever reasonable means are available and may summon as many persons as he deems necessary to assist him (sec. 839, Pen. Code), but he must stop short of killing or seriously injuring the fleeing criminal, unless, as before stated, in self-defense.

Our statute does not expressly make this distinction between a misdemeanor and a felony, but it seems to enlarge the authority of an arresting officer where he is in possession of a warrant of arrest. While it recognizes the right in certain cases to make an arrest without a warrant (secs. 836 and 837, Pen. Code), yet in section 843 of said code it provides: “When the arrest is being made by an officer under the authority of a warrant after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest.” This would undoubtedly

[3] The criticised instruction might have been more explicit in the respect indicated, but we think the element of purpose or intention is implied in the language used, and that, considered with the other instructions of the court, it was not misinterpreted by the jury to the prejudice of the defendant. A declaration that one shot or shed the blood of another implies that the act was done with such intent.

[4] There was no error in refusing the following requested instruction: “Good character of the defendant must be considered with all other evidence in the case, and is of itself sufficient fact from which a reasonable doubt of guilt may arise, and if the jury have reasonable doubt of the guilt of the defendant, -he is entitled to their verdict of acquittal.”

It is stated by appellant that “a number of witnesses testified as to the character of the defendant, some being favorable and some unfavorable.” This statement justifies the action of the court in refusing said instruction, since it assumed that appellant’s good character was established beyond question. The truth is that it was a matter for the jury to determine, and, it may be added, the court on the request of the defendant did give a proper instruction on the subject.

[5] A more serious question in the case arises from the refusal of the court to give any of the following instructions requested by the defendant: “If you believe from the evidence that the said John Soares, at the time and place when and where the defendant is alleged to have fired the shot, had in his, Soares,’ possession, a dying swan which had been shot by the said Soares, then I instruct you that

“If you believe from the evidence that at the time and place when and where the defendant is alleged to have fired the shot that the said Soares was hunting upon the land or property of the defendant without right or permission of the defendant to hunt thereon, then I charge you that the said Soares was guilty of a misdemeanor under the law.”

“If you believe from the evidence that at the time and place when and where the defendant is alleged to have fired the shot that the said Soares was hunting animals or game, other than predatory animals or game, without a legal license so to do from the government of the state of California, I charge you, the said Soares was guilty of a misdemeanor under the law.”

The importance of these instructions can be understood when we recall that the evidence shows that Soares was guilty of each of said offenses and that this fact constituted the foundation of appellant’s defense. The whole case of defendant, in other words, rested upon these facts, that Soares committed a misdemeanor in his presence; that' he had, therefore, a right to arrest and recapture him, and that appellant fired the gun for the purpose of scaring, but without any intention of hitting, him. The commission by Soares of a misdemeanor is thus shown to be an important link in the chain, and said instructions covered that particular feature.

However, we do not believe that the case should be reversed for said omission.

In the first place, it is altogether probable that the jurors were sufficiently familiar with the law to know that said acts constituted a misdemeanor. It is fair to assume that in such a farming community a general knowledge exists of the game laws. Again, it was shown without objection that Soares pleaded guilty to said offense and it was admitted by him that he knew he had committed a crime. There was no controversy whatever about it during the trial, and it was virtually conceded by all parties that said acts of Soares amounted to a violation of the law. We may add that several instructions, including the one first quoted herein, assumed that Soares had committed a misdemeanor.

We conclude, therefore, that if said instruction had been given and full force and effect were accorded to defendant’s theory that he fired simply to frighten Soares, the jury should and would have found him guilty of simple assault.

We may add that, from the evidence for the people, the jury would be justified in concluding that the defendant fired deliberately at the legs of Soares, but upon this or the

The judgment and order are affirmed.

Nicol, P. J., pro tem., and Hart, J., concurred.