Dryer v. State

• Decision Date: 03 February 1904
• Parties: DRYER v. STATE.
• Court: Alabama Supreme Court

36 So. 38

139 Ala. 117

DRYER v. STATE.

Supreme Court of Alabama

February 3, 1904

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

George Dryer was convicted of assault with intent to murder, and appeals. Affirmed.

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: "(2) If Rothschild, at the time of arresting defendant, had not received any information that would reasonably cause him to believe that a felony had been committed by the defendant, he had no authority to arrest him, and in making such arrest he was a trespasser, and the defendant had the right to resist such arrest, and to use sufficient force to free himself from said Rothschild." "(6) If Rothschild, at the time of arresting defendant, had not received any information that would reasonably cause him to believe that a felony had been committed by the defendant, he had no authority to arrest him, and in making such arrest he was a trespasser, and the defendant had the right to resist such arrest, and to use sufficient force to free himself from said Rothschild; and if the jury believe from the evidence that the defendant did not use any more force than was necessary to free himself from such unlawful arrest then the jury must acquit him."

Russell & Lewis, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

Section 5215 of the Criminal Code of 1896 prescribes when arrest may be made by a private person. Sections 5216 and 5217 prescribe his duty in making an arrest. The defendant was indicted and tried for a felony--an assault with the intent to murder. The alleged felonious assault was committed by the defendant in resisting an arrest by one Rothschild, a private person. Waiving consideration of the question whether Rothschild under the facts, was guilty of a trespass upon the person of the defendant in making the arrest, it is sufficient to say that a mere trespass will not justify or excuse the commission of a felony by another in resisting the trespass. Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Williams v. State, 44 Ala. 41. Charges 2 and 6 requested by the defendant, and which were refused, were open to the construction that the defendant was authorized to resist the arrest by Rothschild, even to his death, if that were necessary to free himself. Such is not the law, and the court...