Childers v. State
| Decision Date | 11 June 1908 |
| Citation | 47 So. 70,156 Ala. 96 |
| Parties | CHILDERS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Bessemer; William Jackson, Judge.
Frank Childers was convicted of assault and battery, and he appeals. Reversed and remanded.
The assault and battery is alleged to have been committed upon Louis Baggett. The justification set up by way of plea and otherwise was that the defendant was a police officer of the city of Bessemer at the time of the alleged assault and battery; that it was committed, if at all, by making the arrest; and that, although the arrest was made without warrant and on verbal complaint, the charter of the city of Bessemer and its ordinances authorize and empower its police officers to arrest without warrant. Demurrers were sustained to the pleas setting this matter up, and defendant was put to the general issue, and denied the right to make the proof of the verbal complaint upon which to base the arrest; the court holding that no warrant could be issued without an affidavit and no person arrested without a legal warrant.
Ben G Perry and Estes, Jones & Welch, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
In Williams v. State, 44 Ala. 41, it was decided by this court that the inhibition contained in section 7, art 1, of the Constitution of 1868, which is the same as section 5 of our present Constitution, was against the issue of warrant of arrest without an affidavit, and not against the making of an arrest without a warrant. That case was cited approvingly in Ex parte Thomas, 100 Ala. 102, 13 So. 517, and we know of no case in which there has been any departure. There being no constitutional prohibition, state or federal it is undoubtedly within legislative competency by statute to authorize an officer to make an arrest without a warrant for either a felony or misdemeanor, whether the offense be one committed in or out of the presence of the arresting officer.
Section 25 of the charter of Bessemer (Loc. Laws 1900-01, pp 444-462), authorized and empowered the municipality by ordinance to empower the police officers of the city "to make arrests either with or without warrant." In pursuance of this power conferred by the charter an ordinance was duly passed authorizing the police officers to make arrests without warrant. There is no conflict between this provision of the charter as to making arrests and the general statute (section 5211 of...
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Rhodes v. McWilson
...in the record, and the judgment must be affirmed. Affirmed. SAMFORD, J., concurring. BRICKEN, J. (dissenting). The case of Childers v. State, 156 Ala. 96, 47 So. 70, seems to be decisive of the appeal in this case. The cannot assent to the opinion of the court, and on account of the importa......
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Ex parte Rhodes
...was so intended, the charter and the ordinance would have said so, as did the Bessemer charter and ordinance construed in the Childers Case, 156 Ala. 96, 47 So. 70, which is conflict with the decision in this case, and is hereby expressly overruled. The word "charge," as used in the charter......
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Sherrod v. State
... ... [14 ... Ala.App. 61] We observe, however, that the charter provision ... relied on as conferring authority to arrest without warrant ... does not confer such authority, but, at most, empowers the ... municipal legislative board to grant such authority by ... ordinance (Childers v. State, 156 Ala. 96, 47 So ... 70); and the court will not take notice of the existence of ... such ordinances in the absence of appropriate averments or ... proof (Glenn v. City of Prattville [Ala.App.] 71 ... So. 75; North Birmingham Street Ry. Co. v ... Calderwood, 89 Ala. 247, 7 So ... ...
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Deason v. Gray
... ... decisions of Tutwiler Coal & Coke Company v. Tuvin, ... 158 Ala. 659, 48 So. 79, Childers v. State, 156 Ala ... 96, 47 So. 70, Gambill v. Schmuck, 131 Ala. 321, 31 ... So. 604, and Sanders v. Davis, 153 Ala. 375, 44 So ... 979. Mr ... ...