Cobb v. State

• Decision Date: 12 June 1923
• Docket Number: 8 Div. 975.
• Citation: 97 So. 779,19 Ala.App. 345
• Parties: COBB v. STATE.
• Court: Alabama Court of Appeals

97 So. 779

19 Ala.App. 345

COBB v. STATE.

8 Div. 975.

Court of Appeals of Alabama

June 12, 1923

Rehearing Denied July 10, 1923.

Appeal from Circuit Court, Lauderdale County; Chas. P. Alman, Judge.

Stewart Cobb was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Stewart Cobb, 97 So. 783.

Simpson & Simpson, of Florence, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

The evidence for the state tended to prove that defendant, who was the chief of police in Florence, Ala., and one Ham, a policeman of the same town, were engaged in searching the person of the deceased, Fat Head by name; that while they were so engaged deceased broke away and ran, the officers ran after him, and while deceased was running, with no weapon in his hands, and without effort on the part of deceased to resist, except by flight, the officers began shooting at him with pistols, and one bullet from the pistol of defendant struck deceased in the middle of the back, going "straight in," from which wound death ensued; that this was in Lauderdale county.

The defendant offered to prove that the defendant, as chief of police, was notified that "Deceased was a dangerous negro, and at the place the killing occurred was selling whisky." The court refused to permit defendant to prove this, and proper exception was taken.

The testimony for defendant tended to show that, about 10 o'clock on a Sunday morning, defendant and another officer named Ham, with him, went to the place where deceased was within the municipal jurisdiction of the city; that Ham took hold of the deceased and asked him, "What he had on him?" The deceased knocked Ham's hand loose and ran. Ham ordered deceased to stop, and drew his pistol and fired (Ham says he fired into the ground). The deceased continuing to run, both Ham and defendant ran after deceased. Ham, after running a short distance, fell, and defendant continued to run and shoot at deceased until the deceased came close to the corner of a garage where deceased was, "looking back, trying to get his hand in his pocket," when defendant, who had already shot at deceased several times shot deceased in the back and killed him. Near the corner of the garage where the deceased fell, was a Coca-Cola bottle containing whisky. It was also testified to by Ham that at the time he and defendant approached deceased: "I told him [deceased] to throw up his hands and asked him what he had." It was also shown that the officers acted without warrant. The defendant in his own behalf testified as follows "When we got down there Mr. Ham got out to arrest the negro; thereupon the negro knocked Mr. Ham's hands down and ran off, I got out of the car about that time, and Mr Ham shot, and I shot after he did, and shot down to the ground, and Mr. Ham fell about that time. Just as the negro got to the corner of the garage he kinder slowed up and looked back, still trotting along, and ran his hand in his hip pocket; he was kinder looking over his shoulders at me. Just before this I told him to halt, two or three times, until the last shot I held my pistol down to the ground just before last shot. He run in his pocket and got out a Cocola bottle of whisky (I found afterward); when he ran his hand back in his pocket I shot. He brought the bottle out of his pocket just as he fell. It contained corn whisky. The bullet went on right side of back bone. I was there when they undressed him. He was running from me when I shot the first time, had slowed up when I shot last time. He was running away from me. I was not running toward him when the last shot was fired. I did not know he had a bottle in his hand when I fired last shot. Yes; he was running and had his hand in his hip pocket. He had his side sorter to me. He was getting behind the corner of garage when I shot him. No, sir; I did not shoot him because he would not stop, but because I thought he was going to shoot me; at the time we attempted to search him he made no effort to shoot only he resisted arrest. When we attempted to arrest him he knocked Mr. Ham's hands down and ran. He fell when I shot. I shot a .38; I had no search warrant for him. I had only heard he had violated the law; he committed no offense in my presence, except what was reported."

There was also evidence of the defendant's prior good character for peace and quiet.

There were rulings of the court on the evidence and charges to the jury, which will be adverted to later in this opinion.

That it had been reported to defendant that deceased was at the place where the killing took place selling whisky was inadmissible for several reasons. If it was offered to justify the officers in going to the point on the streets of Florence where deceased was, such testimony was immaterial, as their presence at any point on the streets, within their jurisdiction, was at all times proper. In this particular there is a difference between the case at bar and the cases of Ex parte Warsham, 203 Ala. 534, 84 So. 889, and Gibson's Case, 193 Ala. 12, 69 So. 533. In those two cases the evidence of information as to offenses being committed, was admitted to rebut evidence for the state tending to prove the presence of the officers at the places of the homicides, for other than official reasons, while in this case no such insistencies are or can be made. If this evidence was offered for the purpose of justifying the officers in attempting to search the deceased, it was illegal, irrelevant, and immaterial. Section 5 of the Constitution provides:

"That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."

The fact that deceased was a nameless and friendless negro none the less entitles him to the protection of the constitutional guaranties. Indeed these provisions were necessary to be written in the organic law, more for the protection of the poor and friendless, than for the rich and powerful. Even if defendant had been informed that deceased was "down there" selling whisky, defendant would have no right to search the person of deceased, based upon such information. A warrant to search the person or premises can only be obtained as is provided by the Constitution and laws of the state. There is only one other way by which an officer can search the person lawfully, and that is, when engaged in making a lawful arrest, either with a warrant duly issued, or for a felony committed by the person arrested, under section 6269 of the Code, or for a public offense committed or a breach of the peace threatened in his presence.

The following excerpts from the court's oral charge were excepted to, to wit:

First. "If the defendant had been told that this negro had liquor in his possession then it was his duty to apply to some officer for a search warrant to search the negro for whisky, and it would have made it the duty of the officer to investigate it by taking statement, or by demanding witnesses and if he

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