Berry v. State

• Citation: 27 Ala.App. 507,175 So. 407
• Decision Date: 18 May 1937
• Docket Number: 6 Div. 123
• Parties: BERRY v. STATE.
• Court: Alabama Court of Appeals

175 So. 407

27 Ala.App. 507

BERRY v. STATE.

6 Div. 123

Court of Appeals of Alabama

May 18, 1937

Rehearing Denied June 8, 1937

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

James O. Berry was convicted of assault with intent to murder, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Berry v. State (6 Div 165) 175 So. 412.

Rulings on admission of testimony and requested charges, if error did not, under court rule, affect substantial rights of defendant accused of assault to murder police officer arresting defendant without warrant, in view of overwhelming evidence that defendant was in act of commission of public offense at time of arrest, and that shooting of officer was wanton and reckless. Court of Appeals Rules, rule 45.

The following charges were refused to defendant:

"34. If the jury have a reasonable doubt of the truth of the State's evidence, you cannot convict the defendant."

"A. I charge you, gentlemen of the jury, that under the evidence in this case, Stiggins, the person alleged to have been assaulted, was a trespasser upon the premises of James O. Berry, and, if the jury believe from the evidence that the defendant James O. Berry was rightfully in his dwelling house on said premises, then I charge you that the defendant James O. Berry was in his castle and had a right to defend the same against unlawful or forcible intrusion."

"A-3. I charge you, Gentlemen of the jury, that the arrest of or attempt to arrest the defendant in this case by Stiggins was an unlawful attempt or arrest.

"A-4. I charge you, gentlemen of the jury, that at the time Stiggins, the person charged with being assaulted, went into the defendant's home he was a trespasser.

"A-5. I charge you, Gentlemen of the jury, that the defendant in this case was under no duty to submit to an arrest by Stiggins on the occasion complained of."

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellant.

A.A. Carmichael, Atty. Gen., for the State.

SAMFORD Judge.

The defendant in the above-styled cause was indicted by the grand jury of the Bessemer division of the circuit court of Jefferson county, charged with an assault with intent to murder one Cecil Stiggins.

Stiggins was a police officer in the town of Brighton, Ala., and at the time of the assault was engaged in making an arrest without warrant. He was informed by one Murphree that the defendant's wife wanted Stiggins to come to her home at once and arrest her husband, who was killing her and the children. Upon receiving this information, Stiggins went to the home of the defendant; found him sitting in a chair in a drunken condition with a pint of whisky in his lap. Stiggins proceeded to make the arrest, and after considerable argument and protest on the part of the defendant, he took hold of the defendant, pulled him out of the house, and caused him to get into the police car, which Stiggins was driving. Stiggins got into the car under the wheel, started it, had gone about twenty or thirty yards when the defendant reached over, got Stiggins' pistol, which he fired twice, seriously injuring the officer.

There can be no doubt that the testimony for the State clearly established a case of assault to murder. While the evidence for the defendant tended to show that the shooting occurred during a scuffle between the defendant and Stiggins, at a time when he was resisting arrest, and that the shooting of the officer was accidental, this however, was a question for the jury, and on this appeal we are called upon to review the rulings of the court upon the admission of testimony and upon the refusal of the court to give certain charges requested, in writing, by the defendant.

The appellant's counsel has, with painstaking accuracy, assigned errors pointing out his contention which he is not required to do under the law, but which practice we approve; and this fact does not preclude this court from considering all questions appearing on the record, or reserved by the bill of exceptions. Slaughter v. State, 21 Ala.App. 211, 106 So. 891.

Assignments of error 17, 27, 31, 32, 34, 35, 36, 37, 40, and 41 relate to the inquiry as to the complaint made by Mrs. Berry, the wife of the defendant, and her appearance at that time. It was shown by this testimony that she left home, appeared excited, she was scantily clothed, her dress was torn from her shoulders, and that she told Jesse Murphree to tell Stiggins to come down there as quick as he could get there, Mr. Berry was trying to kill the children; that "Mr. Berry was up there drunk, raising cain, tried to kill her and the kids and she wanted the police up there." This was the complaint made by Mrs. Berry to Murphree, and by him repeated to Stiggins, who was a peace officer of the town, and in response to which he went to the home of the defendant to make the arrest.

Under section 3263 of the Code of 1923: "An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; or when a felony has been committed, though not in his presence, by the person arrested, or when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony."

Under the foregoing section of the Code, if Stiggins had reliable information that the defendant had committed a felony, or was about to commit a felony, he not only had a right but it was his duty to go to the scene and to make the arrest. All of the foregoing testimony was relevant and admissible to establish the fact that Stiggins had a well-grounded belief, founded on pregnant circumstances, that a felony had been committed and that he was not acting upon a mere suspicion.

Of course, an officer cannot justify an arrest upon the ground that he has reasonable cause to believe the person arrested had committed a felony, unless he has information of facts derived from credible sources, or from persons reasonably presumed to know them, which, if submitted to the judge or the magistrate having jurisdiction, would require the issue of a warrant of arrest. Suell v. Derricott, 161 Ala. 259, 274, 49 So. 895, 23 L.R.A.(N.S.) 996, 18 Ann.Cas. 636.

As a general rule, at common law an arrest cannot be made without a warrant, but if the felony or breach of the peace threatened or committed within the view of an officer authorizes an arrest, it was his duty to arrest without warrant, or if a felony had been committed, and there was probable cause to believe that the particular person was the offender, he could be arrested without a warrant; but the matter of arrest is now in this State largely subject of statutory regulation, which in some degree is an affirmation of the rules at common law. Of course an officer or a private citizen under the statute cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts derived from credible sources, or from persons reasonably presumed to know them, which, if submitted to the judge or the magistrate having jurisdiction, would require the issue of a warrant of arrest. Cunningham v. Baker, 104 Ala. 160, 171, 16 So. 68, 53 Am.St.Rep. 27; Gibson v. State, 193 Ala. 12, 69 So. 533.

The statute above cited extends the rule of the common law so as to permit an officer to make an arrest when he has reasonable cause to believe that the person arrested has committed a felony, or a charge made on reasonable cause that the person arrested had committed a felony, though no felony had in fact been committed. All of the foregoing evidence elicited by the questions, and made the basis of the above assignments of error, were permissible on the questions of the bona fides of the act of the officer in going to the home of the defendant upon the information furnished him by Murphree. And this, also, was true with reference to the condition of the clothing of the defendant's wife at the time she was making the complaint.

It is argued that the foregoing testimony is illegal, for the reason that a wife is not a competent...