Tarwater v. State

May 15, 1917

6 Div. 272.

Reporters:: , ,
Before:: Samford

SAMFORD, J.

[1 ] There were several objections and exceptions to evidence -as to confessions and admissions of the defendant as to who committed the assault, but later in the trial the defendant’s counsel in open court admitted that the defendant did the shooting. This eliminated all of these questions, and rendered any error, if any, error without injury.

It was shown on the trial that the defendant at the time of the assault was the superintendent of a mine and a deputy sheriff, and by numerous questions and in many ways the defendant’s counsel endeavored to prove that the party assaulted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was trying to negotiate a sale of whisky, presumably for the purpose of justifying himself in undertaking the arrest of the defendant without a warrant at the time of the shooting.

[2] An officer acting as sheriff m‘ay, without warrant, make a lawful arrest. Code 1907, § 6267. In doing so he must comply with and conform to the law giving him this authority. When the arrest is made without warrant, it must be for a public offense committed or a breach of the peace threatened in his presence. Code 1907, § 6269. When arresting a person without a warrant, the officer must inform the person arrested of his authority and the cause of his arrest. Code 1907, § 6270; otherwise the person being arrested is under no duty to submit, and if the officer kills him, the officer is not protected by his office. It was said in Brown v. State, 109 Ala. 89, 20 South. 110:

“If there is not such knowledge or notice [of official character], [and the officer is killed by a person resisting arrest], the homicide cannot be more than manslaughter, unless the resistance was in ‘enormous disproportion to the threatened injury’ [citing authorities]. There may be a presumption ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍.that the regularly commissioned sheriff is known to all the inhabitants * =i= * of county, and- that the * * * constable is known to all the inhabitants” of the beat. “The presumption founded on the publicity and notoriety of” official relation cannot be indulged if the officer’ making the arrest is * * * of special deputation.”

It is not the duty of the citizen to submit to any other than a lawful arrest. Brown v. State, supra. The law does not intend that the citizen shall yield his liberty to the dominion of even a known officer — certainly not to an unknown one — upon his mere demand, who gives no information of his authority. If this were not true, no man would be safe from invasions of his personal liberty.

In this case the evidence for the defendant tends to show that Glover knew he was an officer, and that the attempted arrest was being made during the actual commission of an offense in the officer’s presence. There is evidence also ■ which, if believed, would’ show that Glover knew that defendant was an officer at the time of the attempted arrest, and that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the defendant would make an attempt to arrest him if discovered.

[31 Where the party being arrested has knowledge of the official character of the officer and is engaged in the actual commission of a public offense, the officer’s duty is to make the arrest. Ezzell v. State, 13 Ala. App. 161, 68 South. 578. And in such case *142 it is the citizen’s duty to submit. , If in making such arrest he is resisted, he has the right to use just so much force as is necessary to accomplish the arrest and to protect himself, apd no more.

[4] Under the foregoing views the court erred in its several rulings on the evidence, in not allowing defendant to prove that at the time of attempting the arrest Glover was committing, in the presence of the officer, the crime of offering to sell liquor. As the negotiation of this sale covered several hours, and the officer only saw a part of it, all the facts tending to show the crime were admissible in evidence.

[5] While officers in the discharge of their duties in the maintenance of law and order are held to strict accountability for the way and manner in which they discharge them, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍courts will consider the dangerous and hazardous calling in which they’ are engaged for the protection of the law-abiding citizen in the enjoyment of life, liberty, and property, in construing the limitations placed upon officers and the statutes granting power to make arrests, so far as it can be done without infringing upon the personal liberty of the citizen.

There are other exceptions reserved to the evidence which are without merit, and which we deem unnecessary to mention.

[6] There were a vast number of written charges requested by the defendant’s counsel relative to the burden of proof and defining a reasonable doubt, some of which were given and some refused. This the defendant had a right to do, but it is the duty of this court to see that the refusal of any of these charges shall not work a reversal of the judgment, even where the charge refused states a correct principle of law, if it appears that the same rule was substantially and fairly given to the jury in the general charge or in charges given at the request of parties. Acts 1915, p. 815. The general charge of the court, together with the written charges ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍given at the request of the defendant, fairly and substantially set forth every correct rule requested by the defendant in the charges marked refused. The effort of the lawmaking power is to preserve to the defendant every substantial right he has, to guarantee him a full and fair charge to the jury at the time of his trial, but to prevent reversals upon mere phraseology in the drawing of charges which do not in the least aid the jury in making up its verdict.

Eor the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.