People v. Kilvington

104 Cal. 86 (1894)

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Nature of the Case

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Facts

D was a night watchman in Chinatown, San Jose, and was a police officer for the city of San Jose. D had been at Chinatown with one Henry Burgess for the purpose of showing the latter through a cannery. At about nine o'clock in the evening, they heard someone cry 'Stop thief!' two or three times, and, upon looking around, they observed two men running across a vacant lot; one was in advance, and the other pursuing him and crying out 'stop thief!' The night was dark, but the parties were visible at some distance. D ordered the man in advance to stop and repeated the order two or three times. The order was not obeyed, but the stranger threw up his hands, when, as D claims, he saw something in his hands, and he drew his own pistol and fired, killing the man, who at the time was, say, thirty feet distant. The man was Henry Schmidt, and he had no weapons upon his person. D did not consider himself in danger, but, as he testifies, intended to arrest the deceased, and for the purpose of intimidating and stopping him attempted to shoot over his head, but the deceased being upon higher ground, about two or three feet, the ball entered his neck. D testified: 'My object in ordering him to stop was to see why he was running away, what he had done. I thought he was some criminal, some thief, some sneak-thief, or something of that kind, that time of night to see a man running and another man chasing him, calling 'stop thief!' I intended to find out, to investigate, and see what it was. I had every cause to believe by the calling of 'stop thief!' that he was a criminal, and my object was to arrest him. I fired to intimidate him, and I endeavored to shoot over his head. . . . . I heard a man call 'stop thief!' and I couldn't tell whether this man had stolen a loaf of bread or robbed a bank.' The man in pursuit was William H. Howard. William had been passing the house of one Mrs. Hayford when the deceased ran out of the backyard, and William, thinking he was a criminal, pursued him, crying 'Stop!' or 'Stop thief!' for some distance, with the result as above stated. D was found guilty and appealed.