Simmons, Justice.
Henry Ramsey was convicted of the murder of Robert Y. Harris. A new trial was refused, and he excepted. The following appeared from the evidence: The deceased was the marshal of Summerville, the place of the homicide, and was killed while attempting to arrest the [61]*61defendant. About one o’clock in the afternoon on Sunday, the wife of the defendant was heard making outcries and appealing for help. The defendant had been beating her inside their house. She escaped and went towards the house of the deceased, which was about 180 steps from the defendant’s house, and called for him to come there and protect her. The defendant ran after her with a strap in his hand, caught her and took her back into the house and began beating her again. The beating could be heard at some distance, and several persons residing in the neighborhood were attracted to the scene by her oütcries. The deceased went to the house, and as he got to the door the woman was calling for him. He walked in and asked the defendant what was the matter,—what was he beating his wife for? The-defendant made no reply, but his wife complained of - the beating, said he had cut her back all to pieces, and begged the deceased to protect her. The deceased then told the* defendant to stop or he would have to arrest him. The latter replied that “ it would take a better man than he (the deceased) was to do it.” The deceased told him to “get his hat and coat and come on.” The defendant said he would not go. The deceased said, “ Ain’t you going with me?” The defendant again refused to go, and said, “You may take me, but if you do, you will have to carry this body dead.” The deceased then drew from his pocket a weapon which it seems he was accustomed to use for the purpose of a policeman’s club,—a leather sling about a foot long, in the end of which, covered with the leather, was a piece of lead about two inches long and about four in circumference at the widest part; and with it he struck the defendant a blow on the:head. He was left-handed, but used the sling with the right hand. Before the blow was struck, all. others who were present besides the defendant and his wife and the deceased, [62]*62except one witness, had left the scene of the encounter. This witness testified that the deceased put his left hand in his pistol pocket, but did not draw his pistol; that the woman called to him not to shoot her husband, and shoved him out of the room, on the door steps, from which he fell to the ground, the defendant at the same time shutting the door; and that the defendant then grabbed his gun from behind the door, opened the door and shot the deceased in the head while the latter was on his knees on the ground, in the act of reaching for his pistol which had fallen from Ms pocket. On the other hand, the defendant’s witnesses testified that before they left the bouse and after the defendant had refused to submit to arrest, the deceased drew the pistol and pointed it at the defendant; and that the deceased was shot while standing on the steps. The defendant, in Ms statement to the jury, claimed that at the time of the shooting the officer’s pistol was pointed at Mm, but no one else claimed to have seen this. Immediately .after the homicide, the defendant said, “I have shot Mr. Harris and will be hung for it,” and left the house. When caught and asked why he had killed the deceased, he said he did not know. At the trial he admitted the beating of his wife, her calls for help, the attempt to arrest him, his acquaintance with the officer, and his refusal to be arrested, that his refusal preceded the use of force by the officer, and that it was not until after the blow, when he still persisted in his refusal, that the officer pointed the pistol at him.
Under this state of facts the jury -were clearly warranted in finding the defendant guilty of murder. At the time the deceased went to the house, the defendant was engaged in a violation of the public peace amounting to an offence against the laws of the State (Code, §4578); and it was the duty of the deceased, as a peace-officer, to arrest him. This he could do without a war[63]*63rant. The code (§4723) declares that an arrest may be made by an officer without a warrant if the offence is committed in his presence. And where a breach of the peace is committed, it is to be regarded as in the officer’s presence, so far as to authorize an arrest without a warrant, if he hears the noise of the disturbance and the outcries of the person assaulted, whether he sees the act itself or not. “ It is a general principle that an offence is considered to be committed ‘in the view’ or ‘in the presence’ of an officer where any of his senses affords him knowledge that an offence is being committed. Therefore, an officer on the street who hears the noise of an assault or an affray in a house, is justified in entering and making an arrest for a breach of the peace, although all is quiet when he enters the room whence the sounds proceed. In such a case the breach of peace occurs ‘in the presence’ of the officer within the meaning of the law.” Hawley, Law of Arrest, 38; Dilger v. Commonwealth, 11 S. W. Rep. (Ky.) 651. And see 1 Whart. Cr. L. §439. It was the duty of the defendant, knowing as he did the official character of the deceased, and that he had rendered himself liable to arrest, to submit peaceably and go with the officer as directed. But from the outset his language and manner were defiant. He not only refused to surrender, but exhibited a determination to use violence against the officer if the latter proceeded with the arrest. He declared that it would take a better man than he was to arrest him, and that if he did make the arrest he would take his body dead. These declarations put the officer on notice that the arrest could not be made peaceably, but that he would be compelled to resort to force and to more than a moderate degree of it,—in fact, that he would have to fight to the death. It is the right and duty of an officer who is resisted in attempting to make a lawful arrest, to use such force as may be necessary to compel submission [64]*64and accomplish the arrest; and where a person taken in a criminal assault upon another, defies the authority of the officer aud by threats of violence seeks to intimidate him, the officer is not bound to wait until he. is actually assaulted before himself resorting to force. If it is apparent that the person he is seeking to ai’rest intends and is able to resist with violence, the officer may use such force as he may reasonably consider necessary to compel surrender. That the defendant meant to execute his threats, and that the force used by the officer did not go beyond what the occasion demanded, is demonstrated by the conduct of the defendant after-wards; and certainly he has no right to complain that the officer took him at his word. In such cases, the presumption, in the absence of any clear showing to the contrary, is, that the officer acts in good faith and with the purpose solely of doing his duty under the law. In the present case, all the demonstrations of force on the part of the officer were in line with this purpose, and fairly construed would indicate no intention at variance with it. No force was used by him until after the defendant had persisted in his refusal to submit, and had accompanied his refusal with threats; and if it be true that the officer had a pistol in his hand, or pointed it at the defendant, the fact that he did not shoot it, but instead used the sling, tends to show that his purpose was not to kill the defendant, if he could arrest him without going to that length.
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Simmons, Justice.
Henry Ramsey was convicted of the murder of Robert Y. Harris. A new trial was refused, and he excepted. The following appeared from the evidence: The deceased was the marshal of Summerville, the place of the homicide, and was killed while attempting to arrest the [61]*61defendant. About one o’clock in the afternoon on Sunday, the wife of the defendant was heard making outcries and appealing for help. The defendant had been beating her inside their house. She escaped and went towards the house of the deceased, which was about 180 steps from the defendant’s house, and called for him to come there and protect her. The defendant ran after her with a strap in his hand, caught her and took her back into the house and began beating her again. The beating could be heard at some distance, and several persons residing in the neighborhood were attracted to the scene by her oütcries. The deceased went to the house, and as he got to the door the woman was calling for him. He walked in and asked the defendant what was the matter,—what was he beating his wife for? The-defendant made no reply, but his wife complained of - the beating, said he had cut her back all to pieces, and begged the deceased to protect her. The deceased then told the* defendant to stop or he would have to arrest him. The latter replied that “ it would take a better man than he (the deceased) was to do it.” The deceased told him to “get his hat and coat and come on.” The defendant said he would not go. The deceased said, “ Ain’t you going with me?” The defendant again refused to go, and said, “You may take me, but if you do, you will have to carry this body dead.” The deceased then drew from his pocket a weapon which it seems he was accustomed to use for the purpose of a policeman’s club,—a leather sling about a foot long, in the end of which, covered with the leather, was a piece of lead about two inches long and about four in circumference at the widest part; and with it he struck the defendant a blow on the:head. He was left-handed, but used the sling with the right hand. Before the blow was struck, all. others who were present besides the defendant and his wife and the deceased, [62]*62except one witness, had left the scene of the encounter. This witness testified that the deceased put his left hand in his pistol pocket, but did not draw his pistol; that the woman called to him not to shoot her husband, and shoved him out of the room, on the door steps, from which he fell to the ground, the defendant at the same time shutting the door; and that the defendant then grabbed his gun from behind the door, opened the door and shot the deceased in the head while the latter was on his knees on the ground, in the act of reaching for his pistol which had fallen from Ms pocket. On the other hand, the defendant’s witnesses testified that before they left the bouse and after the defendant had refused to submit to arrest, the deceased drew the pistol and pointed it at the defendant; and that the deceased was shot while standing on the steps. The defendant, in Ms statement to the jury, claimed that at the time of the shooting the officer’s pistol was pointed at Mm, but no one else claimed to have seen this. Immediately .after the homicide, the defendant said, “I have shot Mr. Harris and will be hung for it,” and left the house. When caught and asked why he had killed the deceased, he said he did not know. At the trial he admitted the beating of his wife, her calls for help, the attempt to arrest him, his acquaintance with the officer, and his refusal to be arrested, that his refusal preceded the use of force by the officer, and that it was not until after the blow, when he still persisted in his refusal, that the officer pointed the pistol at him.
Under this state of facts the jury -were clearly warranted in finding the defendant guilty of murder. At the time the deceased went to the house, the defendant was engaged in a violation of the public peace amounting to an offence against the laws of the State (Code, §4578); and it was the duty of the deceased, as a peace-officer, to arrest him. This he could do without a war[63]*63rant. The code (§4723) declares that an arrest may be made by an officer without a warrant if the offence is committed in his presence. And where a breach of the peace is committed, it is to be regarded as in the officer’s presence, so far as to authorize an arrest without a warrant, if he hears the noise of the disturbance and the outcries of the person assaulted, whether he sees the act itself or not. “ It is a general principle that an offence is considered to be committed ‘in the view’ or ‘in the presence’ of an officer where any of his senses affords him knowledge that an offence is being committed. Therefore, an officer on the street who hears the noise of an assault or an affray in a house, is justified in entering and making an arrest for a breach of the peace, although all is quiet when he enters the room whence the sounds proceed. In such a case the breach of peace occurs ‘in the presence’ of the officer within the meaning of the law.” Hawley, Law of Arrest, 38; Dilger v. Commonwealth, 11 S. W. Rep. (Ky.) 651. And see 1 Whart. Cr. L. §439. It was the duty of the defendant, knowing as he did the official character of the deceased, and that he had rendered himself liable to arrest, to submit peaceably and go with the officer as directed. But from the outset his language and manner were defiant. He not only refused to surrender, but exhibited a determination to use violence against the officer if the latter proceeded with the arrest. He declared that it would take a better man than he was to arrest him, and that if he did make the arrest he would take his body dead. These declarations put the officer on notice that the arrest could not be made peaceably, but that he would be compelled to resort to force and to more than a moderate degree of it,—in fact, that he would have to fight to the death. It is the right and duty of an officer who is resisted in attempting to make a lawful arrest, to use such force as may be necessary to compel submission [64]*64and accomplish the arrest; and where a person taken in a criminal assault upon another, defies the authority of the officer aud by threats of violence seeks to intimidate him, the officer is not bound to wait until he. is actually assaulted before himself resorting to force. If it is apparent that the person he is seeking to ai’rest intends and is able to resist with violence, the officer may use such force as he may reasonably consider necessary to compel surrender. That the defendant meant to execute his threats, and that the force used by the officer did not go beyond what the occasion demanded, is demonstrated by the conduct of the defendant after-wards; and certainly he has no right to complain that the officer took him at his word. In such cases, the presumption, in the absence of any clear showing to the contrary, is, that the officer acts in good faith and with the purpose solely of doing his duty under the law. In the present case, all the demonstrations of force on the part of the officer were in line with this purpose, and fairly construed would indicate no intention at variance with it. No force was used by him until after the defendant had persisted in his refusal to submit, and had accompanied his refusal with threats; and if it be true that the officer had a pistol in his hand, or pointed it at the defendant, the fact that he did not shoot it, but instead used the sling, tends to show that his purpose was not to kill the defendant, if he could arrest him without going to that length. There was no i’eason for the defendant to suppose that his life would be in danger, or that any injury would be inflicted upon him by the officer, if he submitted, as it was his duty to do. And when by doing this he could instantly have terminated all demonstrations of force on the part of the officer, he could not shield himself behind the defence that he acted under the belief that the killing was necessary to save his own life. If it be true that his life or person was in [65]*65danger, it was so only because he chose to persist in the defiant attitude of an outlaw conscious of his guilt and that it was his duty to submit. lie could not set up as justification a danger which he knew or ought to have known could be avoided by his yielding obedience to the law, instead of by taking the life of its officer who, was simply attempting to do his duty under the law. He cannot in this manuer take advantage of his own wrong. The doctrine of necessity does not apply in favor of one who has no reason to apprehend a greater injury than a lawful arrest. The case, therefore, is clearly not one of justifiable homicide.
Whether there was such reasonable provocation as to justify the excitement of passion and reduce the homicide to manslaughter, would depend upon whether the force used by the officer was unnecessary or excessive, or not. This question the jury have passed upon, under the charge of the court, and their finding is sustained by the evidence. The law as to the different grades of homicide was fairly presented to the jury, and there is no error in the charge or in the refusal to charge as requested, which would require a new trial. It is unnecessary to deal specifically with the numerous assignments of error. Such of the questions presented as are not discussed m this opinion, are sufficiently dealt with in the head-notes. Judgment affirmed.