Gillespie v. State

• Decision Date: 19 October 1901
• Citation: 64 S.W. 947
• Parties: GILLESPIE v. STATE.
• Court: Arkansas Supreme Court

Page 947

64 S.W. 947

GILLESPIE v. STATE.

Supreme Court of Arkansas.

October 19, 1901.

Appeal from circuit court, Monroe county; Geo. M. Chapline, Judge.

Perry Gillespie was convicted of an assault and battery, and appealed. Reversed.

C. F. Greenlee, for appellant. G. W. Murphy, Atty. Gen., for the State.

HUGHES, J.

The appellant, Perry Gillespie, who was the city marshal of the city of Brinkley, was indicted by the grand jury of Monroe county, under section 1476, Sand. & H. Dig., for an aggravated assault upon one T. C. Bull, pleaded not guilty, was tried, and convicted of an assault and battery, was fined $50, and appealed to this court.

The evidence tends to show that T. C. Bull was drunk, and was a dangerous man, of a violent temper, and in the habit of going armed; that he was boisterous, cursing and swearing, and had made threats against a negro. The appellant expostulated with Bull, tried to quiet him, and get him to leave, more than once. The appellant testifies that he afterwards saw Bull raise a chair, as if to strike Mr. E. C. Brown, as he thought, and that he struck with it, and he thought at the time he struck at Brown, who was standing between Bull and his (Bull's) horse. But it appeared afterwards that Bull struck over Brown's head at the horse. At this juncture Gillespie stepped up, and told Bull to consider himself under arrest, and took hold of Bull's wrist, and told Brown to take hold of him. Bull said: "You are a God damned lying son of a bitch. You cannot arrest me," and quickly put his hand to his hip pocket, when Gillespie struck him at once with his stick, called a policeman's "billy," and says in his testimony, "At the first blow, I thought he was coming on me, and hit him again, when he fell." The stick weighed 13 ounces. He testified that he not only knew Bull's reputation as being a dangerous man of violent temper, and as one who carried arms, but knew his character from his personal knowledge. It was admitted that Bull was drunk, and violating a city ordinance by being drunk and disorderly, and that the appellant, as city marshal, had the right at the time to arrest him. At plaintiff's request the court instructed the jury as follows: "The court instructs the jury that under the law an arrest may be made by a peace officer in obedience to a warrant of arrest delivered to him, or without a warrant where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony; and the court tells you that a marshal is a peace officer. The court further tells you that an arrest is made by placing the person in restraint, or by his submitting to the custody of the person making the arrest. But in making the arrest no unnecessary force or violence shall be used, and in this...