## Facts

- George Kilvington, a police officer and night watchman, heard someone shouting “Stop thief!” at night and saw Henry Schmidt running toward him with William Howard pursuing.
- Kilvington ordered Schmidt to stop several times; Schmidt continued running and raised his hands, and Kilvington believed he saw something in Schmidt’s hands.
- Kilvington drew his revolver and fired toward Schmidt; the defense asserted he fired only to intimidate Schmidt into stopping and without intent to kill or wound.
- Schmidt was struck and killed.
- Kilvington was charged with murder, convicted of manslaughter, and his motion for new trial was denied; he appealed from the judgment and the denial order.

## Issues

1. Whether the trial court erred by instructing the jury to determine whether Kilvington had “reasonable cause” (probable cause) to believe Schmidt committed a felony, thereby submitting a legal question to the jury.
2. Whether the jury instructions adequately separated (a) the legality of attempting a warrantless nighttime arrest from (b) whether firing to stop or intimidate constituted criminal negligence.

## Decision

- The California Supreme Court reversed the manslaughter conviction and the order denying a new trial.
- The court held it was error to instruct that the jury should decide whether the facts amounted to “reasonable cause” to believe a felony was committed.
- The case was remanded for a new trial.

## Legal Principles

- A peace officer may arrest without a warrant at night when the officer has reasonable grounds to believe the person committed a felony.
- The jury decides disputed historical facts (what the officer saw, heard, and the surrounding circumstances).
- Whether the facts found by the jury are legally sufficient to constitute probable cause/reasonable grounds is a question of law for the court, not the jury.
- Jury instructions in prosecutions arising from an officer’s attempted arrest should separately present (1) justification to arrest and (2) whether the method used (including gunfire allegedly intended only to stop) amounted to criminal negligence.

## Conclusion

The conviction was reversed because the trial court improperly allowed the jury to determine probable cause, a legal determination reserved to the court, and the case was returned for a new trial with correct allocation of judge and jury functions.


People v. Kilvington, 104 Cal. 86 (Cal. 1894)