Dyson v. State

• Decision Date: 06 June 1939
• Docket Number: 8 Div. 733.
• Citation: 28 Ala.App. 549,189 So. 784
• Parties: DYSON v. STATE.
• Court: Alabama Court of Appeals

189 So. 784

28 Ala.App. 549

DYSON v. STATE.

8 Div. 733.

Court of Appeals of Alabama

June 6, 1939

Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.

Bill Dyson, alias Dison, was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

R. B Patton and Edw. Goodrich, both of Athens, for appellant.

Thos. S. Lawson, Atty. Gen., and L. L Mooneyham, Asst. Atty. Gen., for the State.

SAMFORD Judge.

The defendant was charged by indictment with murder in the second degree, in that he unlawfully and maliciously killed one Howard Gladden. The homicide took place at a time when Gladden was under the influence of whiskey, and in a public place in the town of Athens, Alabama, and in the presence of the officer. There was evidence tending to prove that when the defendant undertook to arrest Gladden that Gladden resisted, striking the officer (this defendant) in the mouth and in the eye, grappling with him and, at that time, the defendant struck Gladden on the side of the head with his club or billy, from the effects of which wound Gladden died some hours subsequent thereto, after having been subdued and placed in the City Jail.

The court admitted evidence to the effect that Gladden had made various threats against the officer (this defendant), saying, in violent language, that he would never permit the defendant to arrest him. In admitting this evidence of threats, the court said: "I am going to let it in for one purpose. The proof here tends to show that the defendant was an officer with authority to make arrests, being an officer with such authority as that, he had a right to take persons into his custody, and I am going to let it in on one point only, and that is, whether or not the deceased made any resistance towards his arrest. That is all it is in there for, Gentlemen of the Jury, not as being a part of self-defense or anything of that sort, but it is in there to shed light on whether or not, if you find there is any evidence of his resisting, that would shed light on it."

The court, also, permitted the defendant to prove the general reputation of the deceased in the neighborhood in which he lived for peace and violence, and turbulence and bloodthirstiness. In admitting this evidence, the court said: "I am going to let that in just like I did the other. It is not a question, Gentlemen--You both seem to be proceeding on the idea there is self-defense here. There is no, what is technically known as self-defense, it is not involved in this case. He is acting as an officer and if he is an officer and acting as such, it is his duty to arrest and he must use such reasonable force as is necessary to make the arrest. Now then the character of the party to be arrested sheds some light on the question as to the amount of force and the character of force that might be lawfully used in making the arrest. And, Gentlemen of the Jury, you heard that statement, and that is all that it is in here for, It is not in here as a straight defense in the case, but it is in here on the question, I am going to explain to you later on about the kind of force that an officer must use in making an arrest and in making the arrest it is permissible for evidence to come before you as to the bloodthirsty character of the party sought to be arrested."

The defendant then offered to prove, by numerous witnesses, the reputation of the deceased for peace and quiet. Thereupon, the court sustained the State's objection to the question: "Because I understand that is as far as you propose to go with this witness." Thereupon, the defendant stated to the court that this was as far as the defendant intended to go with reference to inquiring of the witness as to the general reputation of the deceased; whereupon, the court stated that it would sustain the objection of the State to the question, and the defendant then and there duly and legally excepted. The defendant then offered other witnesses, who would testify to the same import, to which objection was made by the State and sustained by the court.

These rulings of the court were made upon the theory that the defendant could not invoke the doctrine of self-defense, but was proceeding alone on the defense that he was an officer duly authorized to make the arrest of Gladden at the time the blow was struck.

A police officer, while on duty and within his jurisdiction, is the representative of organized government, in dealing with crime and the maintenance of law and order. In the exercise of this authority he may and it is his duty to make arrests of persons violating the criminal laws without warrant, if such violations take place in his presence. When he is so acting, he is entitled to all of the protection incident to his position; but such protection is not limited by or governed by the rules applicable to the plea of self-defense.

In Birt v. State, 156 Ala. 29-37, 46 So. 858, quoting from Clements v. State, 50 Ala. 117, 119, the rule is stated to be: "In all cases, whether civil or criminal, where persons having authority to arrest...