106 Ala. 63 | Ala. | 1894
— 1. It is not denied that the deputy sheriff was clothed under the statute with-the authority to arrest the party, Bob Cleveland, — whom he caught stealing from a railroad car. — Code, § 4262. Nor is it denied that under the statutes of this State, it is the duty of every private person, when required by an officer, to assist him in making an arrest, and that a refusal to do so isa misdemeanor. — Code, §§ 4262, 4264, 3976; Martin v. The State, 89 Ala. 118.
2. An arrest may be said to be effected, when the party arrested submits himself to the power of the arresting officer, and it may be effected by word and without manual touch of, or the application of force to, the body of the prisoner. But, hare words will not make an arrest, if the party resists and refuses to be arrested. — 1 Am.& Eng. Encj'c. of Law, 730. If one, without fleeing, resists, the officer, alike in felony and misdemeanor cases, may, without unnecessary or improper violence, use
3. When one is duly summoned by an officer, having lawful authority, to assist him in making an arrest, the duty of the citizen to obey is absolute. ‘ ‘ His obligation, ” says Mr. Wharton, “to come to the aid of the sheriff or other officer, is just as imperative as that imposed on the latter, to see that the community suffer no harm from licentiousness.” — Whar. Cr. Law, § 652, and authorities cited; Whar. Cr. Plead. & Pr., §§ 10, 11. The citizen while acting, actually or constructively, under the officer’s command, becomes, pro hae vice, an officer, and is clothed with the same duties, responsibilities and protection. An officer can not decline to arrest because it is dangerous to do so, else, the desperate and lawless might go unchallenged for crime, and, for the very reason, that when resistance is made to his lawful authority, and it becomes hazardous to make an arrest, then, for the sake of saving human life, — either his own or that of the criminal, — he is authorized by law to summons the bystanders to his assistance. Obedience to such a summons, because it involves danger, cannot be refused by the private citizen, any more than the dutj^ to make the arrest can, for the same reason, be declined by the officer. The fact that there is danger involved is the very thing which calls for and makes obedience a duty. Nor can the citizen constitute himself a judge of the necessity 'for obedience, and the circumstances under which he should obey, hi such cases. Hf he should be excused because, in his opinion, assistance, if rendered, w'ould be futile and dangerous, and because he supposed the officer was not discharging his full duty, it would render the statute nugatory. The law necessarily requires the judgment and summons of the officer, and not the opinion and option of the citizen, the measure of the duty of the latter to obey.— Watson v. The State, 83 Ala. 61. Put the officer is under obligation to have proper regard for the life and safety of the party whom he calls to aid him in making an arrest, and not recklessly, and for no good purpose, to expose his life and limb to useless danger. And in this case it may be said, if the jury believed under all the circumstances, that at the time, an attempt to make said arrest, or to aid
The second charge requested by defendant was properly refused. It was abstract. The evidence did not tend to show that the officer requested the defendant to take the iniative in making the arrest, nor that the officer was unwilling to make it. He was in the actual .attempt to do so, when he summoned the defendant.
Reversed and remanded.
