89 Ala. 115 | Ala. | 1889
It is certainly the law, that a policeman, or town-marshal, may, without warrant, arrest any one who commits a breach of the peace -in his presence, or who, by boisterous conduct, accompanied by violent words or actions, indicates a purpose to commit a breach of the peace.—Hayes v. Mitchell, 69 Ala. 452, and authorities cited; Code of 1886, § 4262. And such officer may summon to his assistance any bystander, or any number of' bystanders, when deemed necessary to effect the arrest, and such summons clothes them with authority to render him all needed assistance. And inasmuch as it requires some word or words spoken by the officer, to effect the summons, such word or words, if they express nothing more, can be given in evidence against any one, whenever the factum of such appointment becomes a material inquiry. The Criminal Court did not err in admitting evidence that Kelly summoned assistance to aid him in making the arrest, nor in allowing proof of his words by which he effected the summons. It was the proper mode of making the proof.
A question was raised in the trial court, as to the manner of proving the official character of Kelly, who was the victim of the homicide. White, the mayor, and other witnesses, testified that he was acting marshal of the town, and that he wore a badge, and carried a policeman’s baton. There was no error in admitting this evidence, and there was no necessity for producing any record or written evidence of his appointment.—1 Greenl. Ev. §§ 83, 92; 5 Wait Ac. & Def. 3-7; 3 Greenl. Ev. § 483.
The testimony tends to show that the Martin brothers, both being present, commenced the disturbance in the saloon kept by Jones; and that this disturbance led to Jones’ absenting himself from his place of business, after his pistol was taken from him by Will Martin, the defendant. The defendant, who testified in his own behalf, gave this account of the origin of the difficulty: “George, my brother, who is now dead, and I, went into Jones’ saloon, and ordered beer. When we finished, George saw Matthews in the bar, who had discharged him from the mines, and he raised a difficulty with him, drawing a knife. Dee Jones drew his pistol, and I, thinking he was going to shoot me, took it away from him. He then left the bar.” The testimony showed, without conflict, that when Jones left his saloon, he went to another saloon, where Kelly was, and that Kelly summoned Wardrup and Jones to assist him, started in the direction of
The conviction was for manslaughter, and in that species of homicide there may be principals in the second degree. Coleman's Case, 5 Port. 32; 1 Bish. Cr. Law, § 678.
f Conspiracy, or a common purpose to do an unlawful, act, Aeed not be shown by positive testimony. Nor need it be shown that there was pre-arrangement to do the specific wrong complained of. When two or more persons enter upon an unlawful enterprise, with a common purpose to aid, assist, advise, encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible, civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all, or less than all of the conspii'a*tors. And it is not necessary to this equal accountability that positive proof be made of the unlawful common purpose with which the enterprise was entered upon. It may be inferred from the conduct of the participants. “All those who assemble themselves together, with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy,
As we have shown, there was testimony tending to show that the two Martins were walking side by side, each with a weapon in his hand, and waving it, and that they were, in this attitude, walking towards Kelly, the town-marshal. Whether Will Martin, the defendant, fired a pistol or not, it is not pretended that he offered any resistance when his brother took his pistol from his pocket, and with it killed Kelly. And his remark, immediately after Kelly was shot down, if the testimony be believed, shows that he was neither horrified nor surprised at the result. That George Martin was in a very lawless mood, with very lawless intent, is the testimony of all the witnesses, and Will Martin did not controvert, but confirmed it. The jury were not without testimony from which they could draw the inference that the two Martins had a common purpose to set the law at defiance, and to use whatever force might be necessary to accomplish their object; and that each was ready to assist and encourage the other, if assistance and encouragement should become necessary. Finding this to be so, each was accountable for the act of the other, whether such act was previously intended or not, if it grew naturally and proximately out of the unlawful purpose they had in view.
The two charges asked for defendant, each ignored the inquiry of conspiracy, or community of unlawful purpose, and for that reason, if for no other, they were rightly refused.
We think what took place on that occasion, including what the defendant said after Kelly was shot down, was one continuous transaction, and the court did not err in receiving the evidence that was objected to.—Smith v. State, 88 Ala. 73.
The judgment of the Criminal Court is affirmed.
