Thomas v. Kinkead
Arkansas Supreme Court
55 Ark. 502
THOMAS v. KINKEAD
Appeal from Pulaski Circuit Court, Joseph W. Martin, Judge
Decided February 27, 1892
Syllabus
[edit]Homicide—To prevent escape of misdemeanant.
A peace officer, having arrested one accused of misdemeanor, cannot kill him to prevent his escape although no other means of prevention are available.
Argument by appellants
[edit]T. J. Oliphint for appellants.
1. An officer cannot take life in attempting to arrest or to prevent escape after arrest, in misdemeanor cases, unless the party resists by force, endangering the life of the officer or threatening great bodily harm. The court’s instructions on that subject were erroneous, 11 Ky. L., 67; 2 Lea, 720; 1 Lewin, Cr. Cases, 187; 3 S.W. Rep., 622; 44 Texas, 645; 50 Ala., 117; 1 Hale, P. C., 481; 1 East, P. C., 302; 65 N.C., 327; 44 Tex., 128 ; 106 N.C., 728; 11 S.W. Rep., 520.
2. As to the law of arrest, see Mansf. Dig., sec. 2005; 50 Mich., 549; 1 Bald., 240; 21 Ala., 240; 8 Me., 127; 22 Mich., 267; 1 Wend., 210.
Argument by appellees
[edit]Ratcliffe & Fletcher for appellees.
1. Thomas being under arrest, whether for misdemeanor or felony, when he attempted to break away, Heard had a right to shoot him to prevent escape if that extreme measure was necessary. 1 Bish., Cr. Pr. (2d ed.), sec. 161; 106 N.C., 728; 3 S.W. Rep., 623; 44 Tex., 128; 34 Minn., 361; 30 Ala., 682, 693–4; 3 Harr., 568–9; 1 Mill, S.C., 385–7 ; 1 Hill, S.C., 212; 1 East, P.C., 295; 1 Russell on Cr., 665; 2 Bish., Cr. Law, secs. 662–3; 80 Ky., 1; 78 id., 380.
2. The sureties are not liable for the acts of Heard. 49 Pa. St, 151; 2 Des. (S. C.), 629; 13 Mo., 437; 28 N.J.L., 224; 11 Ired. (N.C.), 141; 51 N.H., 136 ; 44 Mo., 491; 37 Conn., 365; 32 Ind., 239; 22 La. An., 600: 39 Fed. Rep., 853; 43 N.W. Rep., 297; 8 Otto, 142; Addison on Cont., [p503] pp. 65–6 appendix; 9 Mo. App., 63; 84 N.C., 128; 58 Miss., 717; 55 Cal., 304.
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