69 So. 533 | Ala. | 1915
Appellant -was tried for the murder of one Ock Austin upon an indictment charging murder in the first degree, and was convicted of murder in the second degree and sentenced to the penitentiary for a period of 25 years. The defendant shot and killed said Austin in the town of Coffee Springs on a Saturday night in September,- 1914. The deceased, a white man, was at the time of the shooting at a negro- house, with one or two other white men, attending what is referred to in the record as a “negro frolic.” Testimony for the state would tend to show an unprovoked murder by defendant, as witnesses for the state testified that the defendant shot the deceased three times while deceased was unarmed and making no effort whatever to- assault defendant in any'manner. The theory of the defendant is, however, that he acted en
The evidence shows without conflict that one Wind-ham was marshal of the town of Coffee Springs at that time, but that under his authority the defendant was acting, as marshal on the night in question, and that he had for a period of six weeks prior thereto served as such deputy marshal for said town. His authority as such officer is not questioned upon this appeal. — 29 Cyc. 1395; Martin v. State, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Merlette v. State, 100 Ala. 42, 14 South. 562; Code 1907, § 6267; Herring v. Lee, 22 W. Va. 661; Throop, Public Officers, 536.
There was proof offered by the state which had a tendency to show that the defendant went down to' this house on this occasion “to get” deceased — to use the language of a witness — and, indeed, the dying declaration of deceased, offered in evidence by the state, tends to show malice on the part of defendant, and that he went to this house to- kill the deceased. In short, there is evidence from which the jury could infer that the defendant went to this house on this occasion for the unlawful purpose of killing the deceased, and not from any lawful or proper motive. There was, therefore, sufficient evidence from which the jury could infer that, although the defendant was acting as marshal at the time, yet he did not go to the house on this occasion for any lawful purpose, or in the discharge of any of his duties as such officer, but merely to* use the office as a shield and excuse for his sinister purpose of kill
Defendant, however, was not permitted by the court to offer such proof. His testimony tends to- show that he went to the negro house in company with H. C. and C.'C. Whaley in a buggy; that when he reached the yard and had gotten out- of the buggy a pistol was fired in the south room of the house, and defendant requested the Whaley boys to- go into the house with him; that he walked to the door and opened it, saying, “You all consider yourselves under arrest;” that he went no- further than the door; that .there were a dozen or 15 men in the room, and that when he made the above remark the deceased cursed him, to which the defendant replied that there was no use to- have trouble, but for him to “go up and see Mr. Windham;” that deceased had some cards in his right hand, and reached in his side pocket, and, drawing out his pistol, fired two shots at defendant, standing a few feet in front of him and advancing a couple of steps, whereupon the defendant
It is apparent from the record, and was conceded in briefs of counsel in this cause, that the question of self-defense was one of prime importance upon the trial, including, of course, also the question as to who was the aggressor, and what motive prompted the respective parties. There was evidence tending to show that deceased on this occasion was drunk. Some of the witnesses placed the hour of the shooting at 12 o’clock or later. In view of the tendency of evidence for the state, and the insistence of counsel as above indicated as to the motive which prompted defendant to go to this house on the occasion in question, it was highly important for him to rebut by competent evidence such inference of unlawful motive, and to show that he was present solely to discharge what he conceived to be his duty as deputy marshal. It is well settled’that an officer is not authorized to make an arrest for a misdemeanor not committed in his presence without a warrant.— Code 1907, § 6269; Sanders v. State, 181 Ala. 35, 61 South. 336; Cunningham v. Baker, 104 Ala. 160, 16 South. 68, 53 Am. St. Rep. 27; Adams v. State, 175 Ala. 8; Jones v. State, 100 Ala. 88, 14 South. 772; Holland v. State, 162 Ala. 5, 50 South. 215. In Sanders v. State, supra, it is said: “ ‘An officer cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from those reasonably presumed to know them, which, if submitted to a judge or magistrate having jurisdiction, would require the issue of a warrant of arrest and the holding of the accused to await further examination/ [Mal
In Findlay v. Pruitt, 9 Port. 195, it is said: “It is true that an arrest may be justified, where there is a well. grounded belief, founded on pregnant circumstances, that a felony has been committed; but mere suspicion will not afford a justification.”'
In 3 Cyc. 887, which cites Findlay v. Pruitt, supra, in the notes, it is said: “The reasonable and proper grounds that will justify an officer in arresting, without a warrant, one whom he suspects of felony, must be such as would actuate a reasonable man, acting in
In the case of Hayes v. Mitchell, 80 Ala. 183, speaking to the question of the right of an officer to act upon the reasonable appearance of things, this court, through Chief Justice Stone, said: “Part of the testimony tended to show that, on the day in question, there was drunkenness, noise and riotous conduct on the streets of Oxford. If this was believed, it afforded a good reason why the marshal should have been on the streets, ready to exercise his functions, if needed, and untrammeled by any incumbrance. And it was not necessary that the danger should be .real. Reasonable ground for apprehending that there would or might be a breach or disturbance of the peace would make it his duty to' be present, that he might prevent violations of the law. Apparent necessity, on a reasonable survey of the surroundings, is, as an excuse, as valid as if it were real. Preventive measures, to be effective, must be taken on the reasonable appearance of things. It is too late after the mischief is accomplished.”
The above case is found cited in an interesting note to the case of Leger v. Warren, 51 L. R. A. 193. The following cases are also of interest in this connection: Hawkins v. Lutton, 95 Wis. 492, 70. N. W. 483, 60 Am. St. Rep. 131; Stoehr v. Payne, 132 La. 213, 61 South. 206, 44 L. R. A. (N. S.) 604; State v. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. R. A. 607. In Hayes v. Mitchell, 69 Ala. 452, it was said: “Two great and vital principles of government are to be kept steadily in view, in pronouncing on conduct such as is brought to. view
We can see no necessity for a treatment of the refused charges. Several of them relate to the guilt of the defendant of murder in the first degree, while he was convicted of murder in the second degree, and the others need not be considered, as, under the ruling here, additional evidence will be admitted upon the next trial. For the error indicated, as to the admissibility of testimony offered by the defendant, the judgment of the court below is reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.
Reversed and remanded.