
    Case 21 — INDICTMENT—
    June 11.
    Creighton v. Commonwealth.
    APPEAL PROM SCOTT CIRCUIT COURT.
    1. A DE pacto oppicer is one who discharges the duties of an office' under color of title.
    One who, having been elected to an office, assumes to exercise its duties without having qualified or attempted to qualify, is without color of title, and is not a de facto officer.
    2. Arrests. — One who is not a peace officer, either de jure or de facto, does not, by assuming to exercise the duties of such an officer,, acquire any more authority to make an arrest than any other private individual, and one who kills such a person in resisting arrest by him is to be tried as if the deceased had not been acting as am officer.
    3. Ik resisting ak arrest attempted to be made by a person without authority, one has the right to use only such force as is necessary to protect himself from the assault, and has no right tm take the life of the person attempting to make the arrest unless-it is necessary to save his own life, or his person from great bodily harm.
    4. One who kills a peace officer to prevent arrest, knowing, arhaving reasonable grounds to believe, that he is a peace officer, is guilty of murder.
    5. It is for the court, and not the jury, to determine whether one attempting to make an arrest had the right to do so.
    A. H. WARD FOR APPELLANT.
    1. The deceased was not marshal, either de jure or de facto, at the-time lie was killed. (Acts 1879, volume 2,- page 996; General Statutes, pages 683, 809, 811.) .
    2. As to rights and liabilities of officers de facto and de jure. (Rod-man v. Harcourt, etc., 4 B. Mon., 224; Morgan v. Vance,'4 Bush, 323; Alsop v. Commonwealth, 4 Ky. Law Rep., 547; Mockabee v_ Commonwealth, 78 Ky., 380; York v. Commonwealth, 6 Ky. Law Rep., 334; Fleetwood v. Commonwealth, 80 Ky., 1; "Wharton’s-Criminal Law, vol. 1, pages 416-18; Criminal Code, sections 26,. 35, 36, 37, 39, 42, 43, 46; Hoglan v. Carpenter, 4 Bush, 89; Biggerstaff v. Commonwealth, 11 Bush, 169.)
    F. "W. HARDIN, Attorney-General, for appellee.
    The deceased was a de facto officer acting in good faith, and his act-of arrest was binding as between appellant and appellee. (Morgan v. Vance, 4 Bush, 326; Patterson v. Miller, 2 Met., 496; Stokes v. Kirkpatrick, 1 Met., 143; Alsop v. Commonwealth, 4-Ky. Law Rep., 551.)
   JUDGE PRYOR

delivered the opinion of the court.

The appellant, James Creighton, was indicted, tried, and convicted of manslaughter, for the killing of one Ambrose Wilson, and sentenced to confinement in the State prison for twenty-one years.

The defense claimed that the deceased assaulted the accused, and the latter, in resisting the assault, used no more force than was necessary to protect his own person from bodily harm. The prosecution attempted to prove that the deceased, Wilson, at the time he was shot, was the town marshal óf Sadieville, and, as snch, had the right to arrest and. take charge of the person of the accused, who, in the opinion of the officer, was about to commit a breach of the peace. The attempt to make the arrest brought on the altercation, both parties shooting at each other, the deceased losing his life by a shot from the pistol in the hands of the accused.

The appellant denied that the deceased had the .right to arrest him for the reason, in the first place, that he was not about to commit a breach of the peace; and, secondly, that the deceased was not town marshal, and, therefore,'had no right or power to arrest him.

If the deceased was town marshal the appellant had no right to resist the arrest, but should have .allowed himself to be taken charge of by the officer, and made his defense before the justice instead of taking the law into his own hands; and if the • deceased was not an officer de facto or de jure, the ..accused had no right to use more force than was necessary to protect himself from the assault of the deceased, and certainly no right to take the life of the deceased, unless it was necessary to save his own life or his person from great bodily harm. The defense had the undoubted right to show that the ■deceased, in attempting to arrest him, was acting without any authority; and that being a fact in issue, the court should have determined the question, and not the jury, as to the right of the deceased to make the arrest. Whether the facts constituted the deceased a peace officer was with the judge and not the jury; and if there had been suf■.ficient evidence of the right of the deceased to act ■ as an officer of the town, then if, when acting in' the discharge of his duties, he was shot and killed • by the accused for the purpose of preventing the arrest, the latter knowing him to have been a peace officer, or having reasonable grounds to believe that he was, subjected himself to the severest- penalty known to the law.

The trouble arising in this case springs from the objection made by the defense, that no instruction •should have been given by which the right of the accused to resist the arrest was, or might have been, •excluded from the consideration of the jury.

It appears from parol testimony that the deceased had been elected marshal of ths town, but that he failed to qualify, or to attempt to qualify, as such in the mode provided by law.

Deputy marshals were sometimes appointed without any authority under the charter of the town, and the deceased was sworn in, at one time upon .the street, to act as marshal for one week, or for •a shorter time. The deceased seems to have been recognized as marshal of the town, and on these facts it is argued that he was an officer de facto, although not an officer de jure, and had the right to .arrest the accused.

By section 10 of chapter 81, General Statutes, “no officer, from whom a covenant is required, shall enter ■upon the duties of his office until the same is given;” and by section 12, of the same chapter, it is provided that: “If the official bond is not given, and the oath ■of office taken, within thirty days of the time when .the officer was elected, or received notice of his appointment, or of the time when his appointment, ought to take effect, the office shall be considered, vacant, and he shall not be re-eligible thereto for-two years.”

There was no warrant or authority from any justice or conservator of the peace commanding the deceased to make this arrest; and his voluntarily-assuming the duties of a town marshal gave him no such power, and while his acts as an officer may have been sustained, so far as they affected the-rights of third persons — and this is questionable— if he had been sued by the accused for an assault-upon his person, in his attempt to make the arrest, his acting in an official capacity would have afforded. Mm no protection.

He had not even received a certificate of his election, and there is no pretense that he ever attempted to qualify as required by law, but, on the contrary, was acting as an officer when the office was made-vacant by reason of his failure to qualify; and when, by the provisions of1 the statute, he was ineligible to fill the position for two years. He, therefore, had no more right to make the arrest, because-he believed a breach of the peace was about to be-committed in his presence, than a private individual had, and the case should have been tried without, reference to his having acted in an official capacity.

If the deceased had executed his bond and entered upon the discharge of his duties as marshal without taking the oath, being otherwise eligible, this would have made him an officer cle jure, or certainly his qualifications could not be questioned until some proceeding had been instituted and his office declared vacant. A mere irregularity in the qualification of an officer, or in the attempt to qualify, where* he has entered upon the discharge of his duties, can. not be inquired into in a collateral proceeding, for the purpose of invalidating his right or title to the office; but in this case the party acting as an officer never qualified or attempted to qualify, and was ineligible for the position when the arrest was made. Under such circumstances his assertion of claim to* the office, and the discharge of its duties, can afford, him no protection. He was a trespasser and' liable* to an action by the accused for the attempt to arrest him, and his usurpation of the office afforded, him no justification. (Rodman v. Harcourt, &c., 4 B. M., 224; Pearce v. Hawkins, 2 Swan, 87.)

An officer de facto is one who discharges the duties of an office. under color of title. His official acts are binding on third persons, but not valid in his own behalf; and Mr. Bishop says that one may be indicted for assaulting an officer de facto, although the authorities are conflicting. In the case, of The People v. Hopson, 1 Denio, 574, the accused,, when indicted for assaulting a constable who had .not taken the oath of office, or given security, was. denied the right of showing that the constable was. not a legal officer, upon the ground that the Commonwealth (a third party) was complaining and not the constable; and yet it is in substance held in that case, that if the constable had been sued for the attempt to make the arrest, or had himself sued for the assault, his acting in an official capacity would have afforded him uo protection. We read.ily perceive the- necessity for holding the acts of ■de facto officers binding on third persons, but are unable to see the reason for justifying TIopson in his assault upon Lassels in a civil action, and then •deny to Hopson the right of such a defense when indicted for this same assault. If right in the citizen to resist an arrest, when attempted to be made by one who is not an officer de jure, to the extent •.that the officer has no redress, when assaulted by the citizen, to prevent the arrest, the doctrine applicable to the rights of third parties should not be carried so far as to enforce a penalty upon one who has done no more than to use the force necessary to resist an unlawful act upon the part of another. If guilty of a breach of the peace, by reason <of the altercation, or of a felony, by reason of the use of more force than was necessary for the protection of his own person, then the power of the 'Commonwealth could be rightfully asserted.

When one claims not only the right to discharge ■the duties of an office, but asserts the right of taking into actual custody the person of the citizen, •without any warrant of authority, and because, in '.his judgment alone, the party should be arrested, he acts at his peril. He is required to know, before he takes such action, that his right to do so is unquestioned.

Nor does it necessarily follow that one assuming the duties of an office, or exercising the authority of an officer, thereby - makes himself an officer de facto; but the action of those who have color of title, in the attempt to discharge snch duties, becomes so important to the public that the rights; of third persons can be protected in no other way than in holding their acts valid as to them. In this; .case it is manifest that the accused had the right to resist the arrest, but to use no more force than was necessary for that purpose; and the case should have been heard and tried as if the deceased was. not acting,- or attempting to act, at the time, as an officer of the law.

Judgment reversed, and cause remanded for a new-trial consistent with this opinion.  