Scarbrough v. State Court Opinion

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spots, tl(,'(t Is l(oclzoi(li(l stiols, a.s .Toli((.S(>ii 
Canie rni(ii(((!i toward ll((‘j((. [''/arl Wilson said 
there were four or five cKiild sleds, a i(ause, 
then a single sl((d. 'I'iie evlde((ee sl(Ows ll(!(t 
It was (he last !d(Ot fired lied killed .lolnison.

Tl(ese wllnesses si(,v ll(elr ea((([) lin> ((((d a 
)ni(t(‘ri( ('XMiised J((l(i(son widle in fil};l(t near 
their ei(i[(0 . 'I'lnw .also s.ay lliat ll((* ii(;((( lair- 
sulng hl[(i l(ad a lli[sli-Hgl(l. Sea('l(ro([)j;l( was 
nearest .Tol(nson in the el(i(se a((d tired tl(e 
last shot as l(e ran pi(st (he Ifeets camp lire. 
Johnson was killed l)y a sI(ot in the liael; of 
the head, whicli e!(nsed l((stant dea(l(. He 
fell seventy-five feet fron( tl(e Heels cai((i).
Cates did not leave the place from which 
Johnson ran. Arn(s followed only a short 
distance. sem-in-o'iph, niaad— seveiil.yJive

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feet behind John.son, was chasing him when 
the"lnst shot was fired. \Vl(('n Johnson fell, 
Scalbrongh went to him, saw that he was 
dead, and returned to tl( 0  Heels cami), where 
he made the statem ent tl(at he did not inlend 
to kill Johnson.

According to Arms and Scarhr(n(gh, John­
son was lying apparcrdly aslee[). Wl(on they

whether or not there was a nec.'cssity for kill­
ing, and the re;(so[(alilenes.s of Ihe grounds ni>- 
on whicl( tin; officer or tl(e privale person i(ct- 
ed, i(ro (i((eslions of fact for the jury, fi 6I- 
.1. -Iliri; 2 K. C. H. 171;  l!isho|)’s f’rlmlnal 
l.aw', vol. 2, j). !!IJ7 ; \Vl(arl(((('s ( 'i'i(id((;(l l.!(w, 
vol. 2, S Id'"', p. Id'S; T.aylor v. Klale, 1.77 
Te([n. •12ii, 7 S.W.(2d) .'id.

Uenean v. Slate, 2 I.ea, 720, .'ll Am. l!('p. 
020, and Ix)ve v. Hi(ss, 1 1.7 Te((n. .725, 20S S. 
W. 01, (ha-lare tl(e nde to he oliserved in i( 
civilized stale, that is to s:(y, find ((eitlier an 
officer nor a privale person ea(( slay to arrest 
the nonresisting flight <[f a felo(( if he can 
he otherwise taken. Killing in flight Is ex­
cusable only when it is shown find the felon 
cannot be ultimately taken by less draslic  
means, at(d tl(at presents a ((((estion for de­
termination by the jury.

[31 The jury fonnd that phUntiff in error 
acted ((nreasonably in atte(n[)ting to arrest 
Johnson’s flight. Wo have exan(i((ed the rec­
ord with great care and fi((d lhat the evidence 
a((thorlzed the jury to infer that shots were 
U((neeess!( rily and reckh.'ssly fired id Joh((son, 
not wddle ho wiis resisli((g arrest, but wastook hold of him and lifted him froui the 

ground wlfJi the statement that he w!(s u((der ju njjriit toward Heets’ camp fire, 
arrest, ho wrenched loose n((d ran, and what Allirmed. 
they did was for the purpose of arresting his 
flight. Scarbrough testifhid that all his sliols 
were upward but a t the hist shot he stumbled.

I t  is insisted that the pursuit and firing in 
the air was lawful and tlnd if a shot from  
Scarbrough’s idstol caused death it was ac­
cidentally Infllcrted when .Scarbrough stum­
bled. There is no evidence showing the gen­
eral situation. It is not shown whether Ihe 
natural surroundings would have inadi' It 
possible to easily capture Johnson after his 
flight, t t  cannot be determined from Hie evi­
dence whether John.son, suddenly i(rousecI 
f r o m sleep, was running to the H(»ets cidup 
foF ^ ro tcc tio n ^ r was In flight from Ihe otli- 
eers. There is no evidence upon the (|uestion 
of whether or not the firing of pistols was 
rea.sonably necessary. ’I'he testimony of the 
Beets boys and Wilson authorize Ihe infer­
ence that shots were fired directly at Jolni- 
son after he commenced running toward the 
camp.

(1,21 In arresting for felony, a peace offi­
cer or even a pi Ivate person, acting witl(out 
a w arrant, may, if necessary, kill a felon aft- 
, I ■ : ts or flees, so that he cannot other­
wise be taken ; but the law does not clothe 
an oflicer or private iierson with anlliority to 
arbitrarily judge tlie necessity of killing, and 
s(uh~a course must be tlie last' re so rt; and

HARBIN V. SMITH.

Supreme Court of Tennessee.
Nov. fit), 11K!I.

1. Municipal corporations O=80f!(4)
No conunon-law duly rested on owner of 

property abutting on sidewalk to Iceep latter  
in repair, and he could not lie held liable to 
travelers thereon for Injuries caused by de­
fects wliich l(e bad no part in creating.

2. Municipal corporations (0=808(7)
iN'o liability of property owner for inju­

ries to traveler on sidewalk can grow out of 
stalute or ordinj(uce merely reipiiring sucli 
owners to repair sidewjdks in front of their 
preiid.ses; primary obligation to keep side­
walks in safe repair resting on municipality.

3. Municipal corporations <0=757(2)
As resiiects duty to re]iair sidewalk, 

liroperly owner lias only easement of aceess 
over sidewalk In front of his premises and 
beyond tl(Ut has no power of control over it

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