Dougherty v. State

• Decision Date: 09 April 1895
• Citation: 106 Ala. 63,17 So. 393
• Parties: DOUGHERTY v. STATE.
• Court: Alabama Supreme Court

17 So. 393

106 Ala. 63

DOUGHERTY v. STATE.

Supreme Court of Alabama

April 9, 1895

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

C. J Dougherty was convicted of refusing to aid an officer in making an arrest, and appeals. Reversed.

The appellant was indicted, tried, and convicted for failure to assist an officer in making an arrest. On the trial of the cause, as is shown by the bill of exceptions, the testimony for the state tended to show that one T. J. Watts, who was at the time a deputy sheriff of Montgomery county, detected a negro by the name of Bob Cleveland stealing from a car of one of the railroads near the city of Montgomery; that the defendant ran into the store of C.J. Dougherty, where the said Watts pursued him; that upon going into the store, Watts informed Dougherty that he was a deputy sheriff, and had authority to arrest the negro, Cleveland; that he had caught him in the act of stealing from a railroad car, and ordered said Dougherty to assist him in making the arrest, but that Dougherty refused to so assist him; that upon going into the store, the negro drew his knife and defied Watts, and that upon being ordered out of the store of Dougherty, Watts left without making the arrest. The testimony for the defendant tended to show that Watts did not tell the defendant that he was a deputy sheriff, and had authority to make the arrest. The defendant testified, in his own behalf, that when the negro ran into his store he was behind the counter, and that when Watts asked him to help arrest the negro, he did not tell him that he was an officer; that there was a large crowd of negroes in the store at the time, who showed a disposition to defend and assist the negro; that Watts made no effort to arrest the negro himself, but called upon the defendant to arrest him. The defendant further testified that he had no weapon of any kind, and knew that he could do nothing towards effecting the arrest. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe that under all the circumstances at the time of said summoning by the said Watts to aid in making the arrest, that an attempt to make said arrest, or to aid therein, would have been both futile and dangerous, then the defendant must be acquitted." (2) "That no officer can require private citizens to take hazards, or jeopardize their lives in arresting fugitives, when the officer himself is not, at the time, willing to take such risk. And unless the officer was himself making some effort to make the arrest, he could not require Dougherty to take the initiative."

W. C Fitts, Atty. Gen., for the State.

HARALSON J.

1. It is not denied that the deputy sheriff was clothed under the statute with the authority to arrest the party,-Bob Cleveland,-whom he caught stealing from a railroad car. Code § 4262. Nor is it denied that under the statutes of this state, it is the duty of every private person, when required by an officer, to assist him in making an arrest, and that a refusal to do so is a misdemeanor. Code, §§ 3976, 4262, 4264; Martin v. State, 89 Ala. 118, 8 So. 23.

2. An arrest may be said to be effected, when the party arrested submits himself to the...