46 So. 858 | Ala. | 1908
The defendant was convicted of manslaughter in the first degree. The party slain was one Miller, a prisoner, whom the defendant, as chief of police of Attalla, was undertaking to lodge in-the city prison. The court' instructed the jury that the arrest was authoritative and legal, and the trial seems to have been had throughout upon this assumption by prosecution and defense. The state pressed for a conviction upon the theory that the defendant wantonly murdered Miller, while he was a prisoner, in expression of personal ill will then entertained' by the defendant towards Miller, and that the occasion was sought by the defendant, under the guise of the performance of , his official duty, as favorable to the accomplishment of his alleged unlawful purpose to kill Miller. Of course, if
The defense interposed, as we gather it from the testimony, was that the prisoner, in an effort to prevent the officer from effecting his imprisonment, as was his duty, resisted the officer, drew a knife, assaulted the officer therewith, and repeated the assault, and without the employment of excessive or unreasonable force the prisoner was shot to death by the officer. With reference to the defense stated, the rule thus announced in Clements v. State, 50 Ala. 119, must control in determining the sustainment vel non of the justification relied on, viz.: “In all cases, whether civil or criminal, where persons having authority to arrest or. imprison, and using the proper means, are resisted in so doing, they may repel force with force, and need not give back; and if the party making the resistance is unavoidably killed in the struggle, this homicide is justifiable.” The doctrine of self-defense has no application in such cases, because it is the duty of the officer to effect the arrest or imprisonment of the offender, without the use of unnecessary or improper violence.' — Dougherty’s Case, 106 Ala. 63, 17 South. 393; Williams’ case, 44 Ala. 41. This duty could not be performed if any element of self-defense was essential to the protection of the officer. He must, to do his duty, become the aggressor, and in no event is he required to retreat before an assailing prisoner.
As indicated before, the testimony in the record presents no case within the principles govening the duty of an officer with respect to the killing of a merely, fleeing prisoner, whether such prisoner be a misdemeanant or not. There was testimony before the jury from which they might have been justified in placing their
There were requested in behalf of the state upwards of 20 special charges. In these it was attempted to state numerous phrases of the law conceived to be applicable to the cause. The safer practice in criminal prosecutions is for the state to sparingly, and then only when the ground is plain, exercise the privilege of asking special instructions by the court. A number of these charges predicate inculpating action on the part of the officer upon the offer to and refusal by the officer to accept bail for the prisoner then in his custody, and whom he- was then undertaking to imprison. We are not advised that the officer had any authority to take bail from this prisoner, nor, if so, that he had any right to determine its character or amount. For this reason, if not others, this class of charges were erroneous.
Charge 6 should have been refused, because, among other reasons, it omits in hypothesis the right of the officer to meet force with force, not excessive, to effect the imprisonment of Miller, if Miller did in fact resist to such a degree as to reasonably then impress the officer, with the belief that extreme measures were necessary
Charge 11 is .bad. Notwithstanding the officer may have entertained the motives and purpose hypothesized, yet, if the arrest and imprisonment were legal, and the prisoner resisted, and, meeting his resistance without unnecessary violence or force, the officer took the life of the prisoner, the killing would be justifiable.
Charge 13, if otherwise beyond criticism, is faulty in the respect that it omits the necessary conviction, in the minds of the jury, of his guilt beyond a reasonable doubt. It should have been refused.
Charge 4, requested by defendant, asserts a correct proposition of law, and should have been given. The others so requested were well refused, either because abstract, misleading, or otherwise bad.
For the error mentioned, the judgment is reversed, and the cause is remanded.
Beversed and remanded.
