Adams v. State

57 So. 591, 175 Ala. 8, 1912 Ala. LEXIS 123

• Court: Supreme Court of Alabama
• Decided: January 1, 1912
• Status: Published

Opinions

ANDERSON, J.

Charge 20, refused the defendant, is predicated upon an elementary rule of law, and the refusal of such a charge has been frequently held to be 'reversible error. — Burkett v. State, 154 Ala. 19, 45 South. 682; Hammond v. State, 147 Ala. 79, 41 South. 761. It is true the refusal of a similar charge in the case of Wright v. State, 156 Ala. 108, 47 South. 201, was justified, because abstract. We cannot say, however, that the charge is abstract in the case at bar, as the relationship and association of the deceased with many of the state’s Avitnesses could afford an inference for the jury that the said Avitnesses Avere hostile to the defendant. • Moreover, the principal witness, Ellington, was engaged in the combat, and was shot by the defendant at the same time that Berry Avas killed.

Charge 12, refused the defendant, has repeatedly received the approval of this court, and its refusal has often been pronounced reversible error. — Fleming .v. State, 150 Ala. 19, 43 South. 219; Bones v. State, 117 Ala. 138, 23 South. 138; Whitaker v. State, 106 Ala. 30, 17 South. 456; Croft v. State, 95 Ala. 3, 10 South. 517; Bain v. State, 74 Ala. 38; Shaw v. State, 125 Ala. 80, 28 South. 390; Henderson v. State, 120 Ala. 360, 25 South. 236; Prince v. State, 100 Ala. 144, 14 South. 409, 46 Am. St. Rep. 28; Nordan v. State, 143 Ala. 13, 39 South. 406.

It may be conceded that the arrest in question, the defendant having been charged only with a misdemean- or not committed Avithin the presence of the officer, could only have been lawfully made under a warrant (section 6269 of the Code of 1907) ; yet the state’s proof shoAvs that Ellington did have a warrant, and the deceased, Berry, was sent to help arrest the defendant, and Avas acting in concert with Ellington when he went to the house to arrest the defendant. Where two officers are acting together, the possession of the warrant by one is sufficient justification for both. — People v. Durfee, 62 Mich. 487, 29 N. W. 19. Berry Avas not, therefore, engaged, in an unlaAvful act in going into the house of Adams to arrest him, although he did not have the warrant on his person; it being held by Ellington, avIio Avas near by. It Avas his duty, however, under section 6268 of the Code, to inform the defendant of his authority; and if the warrant was demanded or required he should not have made the arrest until the warrant was produced. Charge 5, requested by the defendant, was properly refused. If not otherwise bad, it was calculated to mislead the jury to the belief' that Berry had no right to act under a warrant held by Ellington.

There was no error in refusing charge 8, requested by the defendant. If not otherwise bad, it Avas calculated to mislead the jury into the belief that the defendant Avould have the right to kill the officer Avkile making a forcible arrest under an unlawful warrant, regardless of the amount of force used to accomplish said arrest. The citizen may resist an attempt to arrest him Avhich is simply illegal, to a limited extent, not involving any serious injury to the officer. He is not authorized to slay the officer, except in self-defense; that is, Avhen the force used against him is felonious, as distinguished from forcible. It is better to submit to an unlaAvful arrest, though made Avith force, but not Avitk such force as to endanger the life or limb, than to slay the officer.

There was no error in refusing charge 22, requested by the defendant. — Hill v. State, 156 Ala. 3, 46 South. 864; Kirby v. State, 151 Ala. 66, 44 South. 38.

The appellant can take nothing by the objection to the question asked Ellington as to the position of the deceased Avhen shot, as the record shows that said question was not answered.

There was no error in permitting the state to show that Berry went with Ellington to help make the arrest, and that Ellington had a warrant; for, as heretofore stated, if they were acting in concert, the warrant was a protection to both of them.

The warrant had been introduced in evidence without objection from defendant, and an objection to the introduction of same after it had already been introduced was not proper or appropriate. If the' cross-examination disclosed that it was not correct or genuine, it should have been eradicated by motion to exclude, and not by objecting to same after it had previously been introduced. We do not wish to be understood, however, as holding that the cross-examination of Williamson discredited the warrant, so as to authorize the exclusion of same.

While we have discussed only the questions argued, the other rulings have been considered, and we find no reversible errors, other than the ones previously suggested.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Simpson and Mayfield, JJ., concur in the opinion.