Gibson v. State

• Decision Date: 30 June 1915
• Docket Number: 555
• Citation: 69 So. 533,193 Ala. 12
• Parties: GIBSON v. STATE.
• Court: Alabama Supreme Court

69 So. 533

193 Ala. 12

GIBSON v. STATE.

No. 555

Supreme Court of Alabama

June 30, 1915

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Bill Gibson was convicted of murder in the second degree, and he appeals. Reversed and remanded.

In his argument to the jury, the solicitor said:

"I understood, and no doubt the jury did, that what the witness Simmons said about what the defendant said that the defendant had done what he came there to do."

C.D Carmichael, of Geneva, and B.G. Farmer, of Dothan, for appellant.

William L. Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

GARDNER J.

Appellant was tried for the murder of one Ock Austin upon an indictment charging murder in the first degree, and was convicted of murder in the second degree and sentenced to the penitentiary for a period of 25 years. The defendant shot and killed said Austin in the town of Coffee Springs on a Saturday night in September, 1914. The deceased, a white man was at the time of the shooting at a negro house, with one or two other white men, attending what is referred to in the record as a "negro frolic." Testimony for the state would tend to show an unprovoked murder by defendant, as witnesses for the state testified that the defendant shot the deceased three times while deceased was unarmed and making no effort whatever to assault defendant in any manner. The theory of the defendant is however, that he acted entirely in self-defense, and claims that he did not shoot or offer to shoot the deceased until the latter had actually fired upon him twice at close range with his pistol. The evidence therefore, is shown to be in sharp conflict; and this, of course, has reference as to who was the aggressor and who was at fault.

The evidence shows without conflict that one Windham was marshal of the town of Coffee Springs at that time, but that under his authority the defendant was acting as marshal on the night in question, and that he had for a period of six weeks prior thereto served as such deputy marshal for said town. His authority as such officer is not questioned upon this appeal. 29 Cyc. 1395; Martin v. State, 89 Ala. 115 8 So. 23, 18 Am.St.Rep. 91; Merlette v. State, 100 Ala. 42, 14 So. 562; Code 1907, § 6267; Herring v Lee, 22 W.Va. 661; Throop, Public Officers, 536.

There was proof offered by the state which had a tendency to show that the defendant went down to this house on this occasion. "to get" deceased--to use the language of a witness--and, indeed, the dying declaration of deceased, offered in evidence by the state, tends to show malice on the part of defendant, and that he went to this house to kill the deceased. In short, there is evidence from which the jury could infer that the defendant went to this house on this occasion for the unlawful purpose of killing the deceased, and not from any lawful or proper motive. There was, therefore, sufficient evidence from which the jury could infer that, although the defendant was acting as marshal at the time, yet he did not go to the house on this occasion for any lawful purpose, or in the discharge of any of his duties as such officer, but merely to use the office as a shield and excuse for his sinister purpose of killing the deceased. The argument of counsel for the state, to which objection was made, and which is hereinafter referred to, indicates that this was the insistence urged on the trial of defendant before the jury. Defendant offered to prove by Windham, the marshal, that both had been down to this negro frolic earlier in the evening, and that some arrests were made, and that upon leaving there Windham went home and instructed this defendant to go back down there that night. Defendant further offered to show that while he was up town one Johnson, who had come from this frolic, informed him that they were gambling and fighting down at this house, and thereupon he went down to the house, and while testifying for himself defendant offered to show that he only went back after being sent for and informed as above stated.

Defendant, however, was not permitted by the court to offer such proof. His testimony tends to show that he went to the negro house in company with H.C. and C.C. Whaley in a buggy; that when he reached the yard and had gotten out of the buggy a pistol was fired in the south room of the house, and defendant requested the Whaley boys to go into the house with him; that he walked to the door and opened it, saying, "You all consider yourselves under arrest;" that he went no further than the door; that there were a dozen or 15 men in the room, and that when he made the above remark the deceased cursed him, to which the defendant replied that there was no use to have trouble, but for him to "go up and see Mr. Windham"; that deceased had some cards in his right hand, and reached in his side pocket, and, drawing out his pistol, fired two shots at defendant, standing a few feet in front of him and advancing a couple of steps, whereupon the defendant pulled his pistol and fired three shots in rapid succession. Defendant further testified that there had been no ill feeling between himself and deceased.

It is apparent from the record, and was conceded in briefs of counsel in this cause, that the question of self-defense was one of prime importance upon the trial, including, of course, also the question as to who was the aggressor, and what motive prompted the respective parties. There was evidence tending to show that deceased on this occasion was drunk. Some of the witnesses placed the hour of the shooting at 12 o'clock or later. In view of the tendency of evidence for the state, and the insistence of counsel as above indicated as to the motive which prompted defendant to go to this house on the occasion in question, it was highly important for him to rebut by competent evidence such inference of unlawful motive, and to show that he was present solely to discharge what he conceived to be his duty as deputy marshal. It is well settled that an officer is not authorized to make an arrest for a misdemeanor not committed in his presence without a warrant. Code 1907, § 6269; Sanders v. State, 181 Ala. 35, 61 So. 336; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am.St.Rep. 27; Adams v. State, 175 Ala. 8; Jones v. State, 100 Ala. 88, 14 So. 772; Holland v. State, 162 Ala. 5, 50 So. 215. In Sanders v. State, supra, it is said:

" 'An officer cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from those reasonably presumed to know them, which, if submitted to a judge or magistrate having jurisdiction, would require the issue of a warrant of arrest and the holding of the accused to await further examination.' [ Malcolmson v. Scott] 56 Mich. 459, 26 N.W. 166. This same doctrine was again announced in the recent case of Suell v. Derricott, 161 Ala. 274, 49 So. 901 [23 L.R.A. (N.S.) 996, 18 Ann.Cas. 636], where it is said: As a general rule, at common law an arrest could not be made without a warrant, but if the felony or breach of the peace threatened or committed within the view of an officer authorized an arrest, it was his duty to arrest without warrant, or, if a felony had been committed, and there was probable cause to believe that the particular person was the offender, he could be arrested without a warrant; but the matter of arrest is now in this state largely the subject of statutory regulation, which in some degree is an affirmation of the rules at common law. Of course, an officer or a private citizen, under the statute, cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from credible sources, or from persons reasonably presumed to know them, which, if submitted to the judge or the magistrate having jurisdiction, would require the issue of a warrant of arrest. Cunningham v. Baker, 104 Ala.

...