The opinion of the court was delivered by
Burch, J.:
The prosecution was one for felonious obstruction and resistance of a sheriff in the execution of a warrant of arrest. The defendants were convicted, and. appeal.
The prosecution grew out of the facts attending the killing of sheriff Moore by Don Van Wormer, set forth in the opinion in the case of The State v. Van Wormer, 103 Kan. 309, 173 Pac. 1076. Three of the defendants are the persons who claimed they were deputized by constable Thompson to keep the custody of Van Wormer while the constable went away for a while on such business as he had. In addition to the facts narrated in Van Wormer’s case, it should be said that a porch extended along the front of Van Wormer’s office, which faced toward the east. The door was near the center of the building. After arresting Van Wormer and taking him out of the door, the sheriff struggled with him along the porch toward the north, and the escape was effected while the sheriff and Van Wormer were on the ground at the north end of the porch. There was ample evidence that Van Wormer succeeded in breaking away from the sheriff because the defendants were at the time obstructing and resisting him, by holding, pulling, and striking him.
The transaction divides naturally into two phases — one inside Van Wormer’s office, where he was taken into custody by the sheriff, and one outside the building, where he escaped. The assignments of error which are of substantial merit relate to the action of the court in excluding evidence as to what occurred inside the building, other than the arrest and removal of Van Wormer by the sheriff in the presence of the defendants, and in restricting the defendants to whatever they might offer by .way of defense respecting the melee which occurred outside the building.
The statute under which the defendants were prosecuted reads as follows:
[303]*303“If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any official duty in any case of felony, every person so offending shall upon conviction be punished by confinement and hard labor for a term not exceeding five years, or by imprisonment in the county jail for a term not less than six months, or a fine not less than five hundred dollars.” (Gen. Stat. 1915, § 3553.)
It will be noted that this statute does not limit the crime to resistance only, in which the person charged must participate with greater or less display of force. (29 Cyc. 1329.) The prosecution, however, was in fact so limited. The specification in the information of the manner and means whereby the sheriff was obstructed, resisted, and opposed, was that the defendants, armed with deadly weapons, assaulted, struck, beat, and wounded him. The opening statement to the jury by counsel for the state connected the defendants with what occurred at the time of the arrest inside the building no further than that they were present, and saw and heard what took place, and so knew that the sheriff was duly executing a warrant of arrest. The statement continued as follows:
“The sheriff seized Van Wormer, took him into his custody, and took him out of his building, and was proceeding to take him to the office of the justice of the peace. . . . Now after they had gotten out of the door of the Van Wormer real-estate office, these four defendants all followed him out into the street. The sheriff and Don Van Wormer were struggling together — Van Wormer was fighting and resisting the sheriff, and Van Wormer said to these defendants, who stood just a few feet away from them, he said ‘Are you’ — or ‘You are a fine lot of sons of bitches to let this' big son of a bitch take me,’ or words to that effect. When Don Van Wormer said that, these four men all jumped on to the sheriff, and beat him, tearing his clothes, assaulting him, resisting him, and holding him, and they let Don Van Wormer escape from the sheriff’s custody.”
The evidence on behalf of the state developed what occurred inside the building no further than the opening statement had indicated, except that in an incidental way some statements and protests of the defendants relating to Van Wormer’s being their prisoner and in their charge crept in. The case was submitted to the jury under the following instruction:
“If you find from the evidence beyond a reasonable doubt, that Martin E. Moore, sheriff of Morton county, Kansas, on the evening of July 22, 1916, in manner and form as charged in the information, arrested and was attempting to take, or had taken into his custody, one Don Van [304]*304Wormer, and that while the said sheriff was attempting to take Van Wormer to the office of justice Perkins, the defendants, J. E. McCarty, Joe Littell, Walter Littell-and Lewis Perkins, interfered by striking, beating or wounding the sheriff, or by holding on to the sheriff or to Van Wormer, so that said Van Wormer was enabled to escape from the custody'of the sheriff, they would be guilty of knowingly and willfully obstructing, resisting or opposing the sheriff in the execution of his duty, after having made the arrest, and it will be your duty to return a verdict of guilty.”
The correlative instruction was as follows:
“If you find from the evidence that the defendants, J. E. McCarty, ' Joe Littell, Walter Littell and Lewis Perkins, on the evening of July 22, 1916, did not strike, beat or wound or hold on to the sheriff, or in any wise interfere with him by obstructing, resisting, or opposing the sheriff in the arrest of Don Van Wormer, or while he was attempting to take, or had taken him into his custody, the defendants would not be guilty, and 'it would be your duty to so find.”
While this instruction, considered technically and alone, was somewhat broader than the other, it was plainly intended to be the reverse of the other; and reading the two together, the guilt of the defendants was made to depend solely on actual violence displayed toward the sheriff.
The defendants desired to prove Van Wormer’s arrest by the constable, their deputyship under the constable, their lawful custody of Van Wormer by virtue of their deputyship, and their notification to the sheriff, while they were inside the building, of their relation to Van Wormer. The purpose was to show two things: first, that the defendants did not knowingly or willfully obstruct, resist, or oppose the sheriff, and second, that if they did, they were justified.
The evidence bore no relevancy to the gravamen of the charge — acts of violence committed outside the office. The state did not claim resistance to the officer inside the building, and of course the defendants made no such claim. The issue was whether or not after the arrest, after the sheriff in further execution of the warrant had taken the prisoner out of the building, and while the sheriff was proceeding to take the prisoner to the court which issued the warrant, the defendants set upon the sheriff and fought him and beat him. A righteous mental attitude preserved toward the sheriff while he was in the building and until he' was leaving the building behind him [305]*305in execution of his process, had no tendency'to disprove the knowing and willful character of the physical force used.
The evidence was not admissible in justification of the violence displayed toward the sheriff.
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The opinion of the court was delivered by
Burch, J.:
The prosecution was one for felonious obstruction and resistance of a sheriff in the execution of a warrant of arrest. The defendants were convicted, and. appeal.
The prosecution grew out of the facts attending the killing of sheriff Moore by Don Van Wormer, set forth in the opinion in the case of The State v. Van Wormer, 103 Kan. 309, 173 Pac. 1076. Three of the defendants are the persons who claimed they were deputized by constable Thompson to keep the custody of Van Wormer while the constable went away for a while on such business as he had. In addition to the facts narrated in Van Wormer’s case, it should be said that a porch extended along the front of Van Wormer’s office, which faced toward the east. The door was near the center of the building. After arresting Van Wormer and taking him out of the door, the sheriff struggled with him along the porch toward the north, and the escape was effected while the sheriff and Van Wormer were on the ground at the north end of the porch. There was ample evidence that Van Wormer succeeded in breaking away from the sheriff because the defendants were at the time obstructing and resisting him, by holding, pulling, and striking him.
The transaction divides naturally into two phases — one inside Van Wormer’s office, where he was taken into custody by the sheriff, and one outside the building, where he escaped. The assignments of error which are of substantial merit relate to the action of the court in excluding evidence as to what occurred inside the building, other than the arrest and removal of Van Wormer by the sheriff in the presence of the defendants, and in restricting the defendants to whatever they might offer by .way of defense respecting the melee which occurred outside the building.
The statute under which the defendants were prosecuted reads as follows:
[303]*303“If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any official duty in any case of felony, every person so offending shall upon conviction be punished by confinement and hard labor for a term not exceeding five years, or by imprisonment in the county jail for a term not less than six months, or a fine not less than five hundred dollars.” (Gen. Stat. 1915, § 3553.)
It will be noted that this statute does not limit the crime to resistance only, in which the person charged must participate with greater or less display of force. (29 Cyc. 1329.) The prosecution, however, was in fact so limited. The specification in the information of the manner and means whereby the sheriff was obstructed, resisted, and opposed, was that the defendants, armed with deadly weapons, assaulted, struck, beat, and wounded him. The opening statement to the jury by counsel for the state connected the defendants with what occurred at the time of the arrest inside the building no further than that they were present, and saw and heard what took place, and so knew that the sheriff was duly executing a warrant of arrest. The statement continued as follows:
“The sheriff seized Van Wormer, took him into his custody, and took him out of his building, and was proceeding to take him to the office of the justice of the peace. . . . Now after they had gotten out of the door of the Van Wormer real-estate office, these four defendants all followed him out into the street. The sheriff and Don Van Wormer were struggling together — Van Wormer was fighting and resisting the sheriff, and Van Wormer said to these defendants, who stood just a few feet away from them, he said ‘Are you’ — or ‘You are a fine lot of sons of bitches to let this' big son of a bitch take me,’ or words to that effect. When Don Van Wormer said that, these four men all jumped on to the sheriff, and beat him, tearing his clothes, assaulting him, resisting him, and holding him, and they let Don Van Wormer escape from the sheriff’s custody.”
The evidence on behalf of the state developed what occurred inside the building no further than the opening statement had indicated, except that in an incidental way some statements and protests of the defendants relating to Van Wormer’s being their prisoner and in their charge crept in. The case was submitted to the jury under the following instruction:
“If you find from the evidence beyond a reasonable doubt, that Martin E. Moore, sheriff of Morton county, Kansas, on the evening of July 22, 1916, in manner and form as charged in the information, arrested and was attempting to take, or had taken into his custody, one Don Van [304]*304Wormer, and that while the said sheriff was attempting to take Van Wormer to the office of justice Perkins, the defendants, J. E. McCarty, Joe Littell, Walter Littell-and Lewis Perkins, interfered by striking, beating or wounding the sheriff, or by holding on to the sheriff or to Van Wormer, so that said Van Wormer was enabled to escape from the custody'of the sheriff, they would be guilty of knowingly and willfully obstructing, resisting or opposing the sheriff in the execution of his duty, after having made the arrest, and it will be your duty to return a verdict of guilty.”
The correlative instruction was as follows:
“If you find from the evidence that the defendants, J. E. McCarty, ' Joe Littell, Walter Littell and Lewis Perkins, on the evening of July 22, 1916, did not strike, beat or wound or hold on to the sheriff, or in any wise interfere with him by obstructing, resisting, or opposing the sheriff in the arrest of Don Van Wormer, or while he was attempting to take, or had taken him into his custody, the defendants would not be guilty, and 'it would be your duty to so find.”
While this instruction, considered technically and alone, was somewhat broader than the other, it was plainly intended to be the reverse of the other; and reading the two together, the guilt of the defendants was made to depend solely on actual violence displayed toward the sheriff.
The defendants desired to prove Van Wormer’s arrest by the constable, their deputyship under the constable, their lawful custody of Van Wormer by virtue of their deputyship, and their notification to the sheriff, while they were inside the building, of their relation to Van Wormer. The purpose was to show two things: first, that the defendants did not knowingly or willfully obstruct, resist, or oppose the sheriff, and second, that if they did, they were justified.
The evidence bore no relevancy to the gravamen of the charge — acts of violence committed outside the office. The state did not claim resistance to the officer inside the building, and of course the defendants made no such claim. The issue was whether or not after the arrest, after the sheriff in further execution of the warrant had taken the prisoner out of the building, and while the sheriff was proceeding to take the prisoner to the court which issued the warrant, the defendants set upon the sheriff and fought him and beat him. A righteous mental attitude preserved toward the sheriff while he was in the building and until he' was leaving the building behind him [305]*305in execution of his process, had no tendency'to disprove the knowing and willful character of the physical force used.
The evidence was not admissible in justification of the violence displayed toward the sheriff. Conceding that the defendants originally had authority to hold Van Wormer in order that he might be brought to justice, they had no right to stage a forcible and violent rescue after the sheriff had peaceably, so far as they were concerned, reduced the offender to his own custody. The state of Kansas was exercising authority over the person of Van Wormer through its executive officers. Its' interests were the paramount interests. Officers charged with identical duty to preserve the public peace, suppress riots and affrays, and bring to punishment violators of the criminal laws,'must not cast off that duty and turn raging combatants of each other. To do so is to thwart the purpose Of the state in appointing them. In this instance it led to the escape of the prisoner fought over, and to murder.
The defendants, however, were not equal in authority with the sheriff. If the constable had been present when the sheriff appeared, the sheriff would have had the right to supersede him. It is true that a constable exercises powers of the same general character as those of a sheriff, respecting preserving the public peace, apprehending criminals, and the like. (Gen. Stat. 1915, § 11590.) But the sheriff is the state’s chief executive and administrative officer in his county. In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he represents the sovereignty of the state, and he has no superior in his county. When a situation arises like that which confronted the community of Rolla on July 22, 1916, it becomes the sheriff’s right, and it is his duty, to determine what the public safety and tranquillity demand, and to act accordingly. He must, of course, act according to law; but if, holding a felony warrant, he should deem it necessary to take custody of a disturber, held by a constable under a misdemeanor,warrant, it is his duty to do,so, and it is the duty of the constable to yield. In such a case, the justification of the constable lies in the rightful exercise of overruling authority by the sheriff.
[306]*306In this instance,'the defendants were only bystanders, called on to guard, during the temporary absence of the constable, a man whom the constable had arrested for breach of the peace. The defendants were not general deputies, clothed with the general powers of the constable, and they held no writ or process of any kind. The authority of the sheriff under his felony warrant was clearly superior to theirs, and they were not justified in opposing him at all, much less with physical force. In the Van Wormer case it was said the evidence left little room for substantial doubt that the purported arrest by the constable, and the placing of Van Wormer in charge of a guard of friends, was a sham and a pretense, the real purpose being to obstruct the sheriff. Granting that in this case the .good faith of the scheme would be a matter for the jury, if it were properly before them, it did not constitute legitimate defense.
There is nothing else of importance in the case. The defendants were prosecuted, convicted, and sentenced under the statute quoted-. It did not work a mistrial when the court adjourned from Saturday until Tuesday in order to hold a session of court in Grant county on Monday. Certain evidence complained of was properly admitted. While some of the rejected evidence offered by the defendants, other than that which has been considered, might have been admitted, and in some instances more extended cross-examination might have been permitted, the issue on which guilt or innocence depended was very narrow, and the defendants suffered no prejudice to their substantial rights. Prejudice resulting from giving an instruction relating to the competency and credibility of the defendants as witnesses will not be presumed. Requests for instructions relating to the powers and duties of constables were properly refused. The jury were correctly and adequately instructed.
The judgment of the district court is affirmed.