Adams v. State

• Decision Date: 11 January 1912
• Citation: 175 Ala. 8,57 So. 591
• Parties: ADAMS v. STATE.
• Court: Alabama Supreme Court

57 So. 591

175 Ala. 8

ADAMS v. STATE.

Supreme Court of Alabama

January 11, 1912

Appeal from City Court of Montgomery; Armstead Brown, Judge.

John Adams was convicted of murder in the second degree, and he appeals. Reversed and remanded.

McClellan and Somerville, JJ., dissenting.

It appears from the facts in the case that Ellington and Berry two policemen, went to the home of John Adams to arrest him on a misdemeanor charge, Ellington being armed with a warrant for his arrest; and that in attempting to make the arrest Berry was killed and Ellington wounded by Adams. The witnesses were the wife of the dead man, Ellington, who was wounded, Julius Smith, W. E. Holland, and Bellinger Cheney most of whom were connected with the police department. The evidence was in conflict as to how the killing occurred; that for the state tending to show an outrageous killing, and that for the defendant tending to show self-defense.

The following charges were refused to the defendant: (20) "The court charges that if the state's witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether." (12) "The court charges that, if there is a probability of defendant's innocence, you should acquit him." (5) "The court charges that, if the officers went into Adams' house to arrest him for a misdemeanor not committed in the officers' presence, the officer not having the warrant, the officer was engaged in an unlawful act." (8) "The court charges that the citizen may oppose a forcible aggression upon him in the execution of an unlawful arrest, even to slaying the officer when the arrest cannot otherwise be prevented." (22) "The court charges that if the evidence is evenly balanced the jury should lean to the side of mercy and acquit the defendant."

John S Tilley, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

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 So. 682; Hammond v. State, 147 Ala. 79, 41 So. 761. It is true the refusal of a similar charge in the case of Wright v. State, 156 Ala. 108, 47 So. 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 witnesses could afford an inference for the jury that the said witnesses were 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 was 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 So. 219; Bones v. State, 117 Ala. 138, 23 So. 138; Whitaker v. State, 106 Ala. 30, 17 So. 456; Croft v. State, 95 Ala. 3, 10 So. 517; Bain v. State, 74 Ala. 38; Shaw v. State, 125 Ala. 80, 28 So. 390; Henderson v. State, 120 Ala. 360, 25 So. 236; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28; Nordan v. State, 143 Ala. 13, 39 So. 406.

It may be conceded that the arrest in question, the defendant having been charged only with a misdemeanor not committed within 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 shows that Ellington did have a warrant, and the deceased, Berry, was sent to help arrest the defendant, and was 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. 109. Berry was not, therefore, engaged in an unlawful 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, who was near by. It was 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 was calculated to mislead the jury into the belief that the defendant would have the right to kill the officer while 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 which 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, when the force used against him is felonious, as distinguished from forcible. It is better to submit to an unlawful arrest, though made with force, but not with 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 So. 864; Kirby v. State, 151 Ala. 66, 44 So. 38.

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

There...