Dryer v. State

139 Ala. 117

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

DOWDELL, J. —

Section 5215 of the Criminal Code I>rescrihes when arrest may loe made by a private person. Sections 5216 and 5217 prescribe his duty in making an arrest.

The defendant was indicted and tried for a felony — an assault with the intent to murder. The alleged felonious assault was committed by the defendant in resisting an arrest by one Rothschild, a private person.

Waiving consideration of the question whether Rothschild, under the facts, was guilty of a trespass upon the person of the defendant' in making the arrest, it is sufficient to say that a mere trespass will not justify or excuse the commission of a felony by another in resisting the trespass. — Noles v. State. 26 Ala. 31; Williams v. State. 44 Ala. 41.

Charges 2 and 6 requested by the defendant, and which were refused, were open to the construction that the defendant was authorized to resist the arrest by Rothschild even to his death, if that were necessary to free himself. Such is not the law, and the court properly refused the charges.

There was no error in admitting evidence which tended to show that the defendant had stolen the pants from the storehouse of one Epstein, which he had “partly concealed under his coat” at the time Rothschild arrested him. Moreover, if error, it was error without injury, for whether he had committed a felony or not he would not have been justified in resisting the arrest to the extent of a felonious assault upon Rothschild. — Code § 4333.

We find no reversible error in the record, and the judgment, therefore, must be affirmed.

Affirmed.