83 Ala. 60 | Ala. | 1887
— The defendant was convicted on a charge of having committed an assault and battery on Harrison Ward. The only material question presented by the record is, whether the defendant is guilty of the offense charged, if he, without doing more, and using no excess of force, merely arrested, secured, and delivered him to the deputy-sheriff, who a few moments previously had called on the defendant to assist in making the arrest, informing him that he had a warrant for Ward’s arrest, but in fact had no such warrant, having mistaken him for another person of the same surname, but different Christian name.
By section 4666 of Code of 1876, it is made the duty of every person, when required to do so by an officer, to 'assist him in making an arrest; and by section 4139, it is made a criminal offense, to refuse or neglect to obey the command of any sheriff, constable, or other officer having authority, when summoned or commanded to assist such officer in making an arrest.
Any officer, authorized by law to make arrests, is empowered to summon or command necessary and proper assistance in apprehending criminals. A deputy-sheriff is authorized to make arrests. In 1 Bish. on Crim. Pro., § 185, the author says: “The officer, then, in making an arrest, or in securing his prisoner afterward, may, if he deems it necessary, call upon a bystander for help, or even command the aid of all persons in his precinct, and equally whether he is acting under a warrant or without. A refusal to assist him is indictable, provided he is proceeding by lawful authority; or, if he is not, his command will be a justification to one who, knowing his official character, comes in good faith to his assistance.”
The power of the officer to command assistance, when necessary, is essential to the due execution of the criminal law, and to the protection of society. This power, which extends to calling to his aid the posse comitatus, oftentimes .would be unavailing, especially in emergencies requiring
Several of tbe rulings of tbe court conflict with tbe rule herein declared. It is unnecessary to specify them.
Reversed and remanded.