Martin v. State

• Decision Date: 29 May 1890
• Citation: 8 So. 23,89 Ala. 115
• Parties: MARTIN v. STATE.
• Court: Alabama Supreme Court

8 So. 23

89 Ala. 115

MARTIN v. STATE.

Supreme Court of Alabama

May 29, 1890

Appeal from criminal court, Jefferson county; SAMUEL E. GREENE Judge.

The indictment in this case charged in a single count that the defendant, William Martin, killed Owen Kelly, by shooting him with a pistol. The defendant pleaded not guilty, but was convicted of manslaughter in the first degree, and sentenced to the penitentiary for a term of six years. The homicide, as was shown by the bill of exceptions, occurred at Warrior Jefferson county, in an attempt by the deceased, who was at the time acting as town marshal, and who was assisted by two others, to arrest the defendant and his brother, George Martin, for an attempted or threatened breach of the peace. The fatal shot was fired by the brother of the defendant George Martin, and killed the deceased almost instantly. Several other shots were fired, one by Kelley himself, and one by the defendant; but neither of these took effect. There was also some evidence tending to show that George Martin fired two more shots after killing Kelly. A few minutes before the difficulty the defendant and his brother entered saloon kept by one D. Jones, and called for beer. While they were in this bar-room George knocked the glasses from the counter, and assaulted one Matthews, who was inside of the bar. Jones attempted to interfere, but Will Martin, the defendant, took his pistol away from him. Jones then left his saloon, and went up the street until he met Kelly, who was then acting marshal of the town. Kelly summoned Jones and Waldrup to assist him, and, going back towards Jones' saloon, met defendant and his brother coming towards them on the sidewalk, defendant having a pistol in his hand, which he had taken from Jones, and George Martin had in his hand an open knife, which he had drawn on Matthews. As the parties approached each other, Kelley called to George Martin "Give me that knife," or "Drop that knife;" and nearly at the same moment Kelly and the defendant each fired his pistol. George immediately reached around his brother, took a pistol out of his right pocket, and fired at Kelly, killing him almost instantly. D. Jones, being examined as a witness for the state, was asked: "What did Kelly say and do when you came up to him?" and answered: "He told me I was deputized to assist him in arresting those men." The defendant objected to both this question and answer, and duly excepted to the overruling of his objection by the court. Waldrup, another witness for the state, testified: "I first saw Kelly in front of Beck's saloon. He put his hand on my shoulder, and said: 'Waldrup, you are legally authorized to assist me to arrest these two men.' He was acting as marshal of the town, the regular marshal having left a few days before for Kentucky; had an old star on his coat, and a police club." To the admission of each part of this evidence the defendant objected and excepted. M. Chamblee, another witness for the state, testified: "Just after the shooting, D. Jones went up to Will Martin, knocked him down, and took the pistol away from him." To the admission of this evidence the defendant objected and excepted. W. A. White, the mayor of the town, thus testified on the part of the state: "Kelly was acting as marshal in the absence of the regular marshal. He had on no uniform, but had an old star on his coat, and a police club. *** After the killing, Will Martin said to George; 'Get out of town, G______ d______ it. You have done the work for him.' Said he would not leave until he found what D. Jones had against him." The court admitted this evidence against the objection and exception of the defendant. The defendant requested the following written charges, and duly reserved an exception to their refusal: (1) "If the evidence shows to the satisfaction of the jury that the defendant knew of no purpose of his brother to shoot Kelly, or do any other unlawful act, then, unless the evidence shows beyond a reasonable doubt that defendant fired a shot at Kelly, they must find him no guilty." (2) "If Kelly fired a pistol at George Martin before any other pistol was fired, and George Martin then took a pistol out of defendant's pocket without his consent, then defendant could not be guilty."

W. L. Martin, Atty. Gen., for appellee.

STONE C.J.

It is certainly the law that a policeman or town marshal may, without warrant, arrest any one who commits a breach of the peace in his presence, or who by boisterous conduct, accompanied by violent words or actions, indicates a purpose to commit a breach of the peace, ( Hayes v. Mitchell, 69 Ala. 452, and authorities cited; Code 1886, § 4262;) and such officer may summon to his assistance any by-stander, or any number of by-standers, when deemed necessary to effect the arrest, and such summons clothes them with authority to render him all needed assistance. And, inasmuch as it requires some word or words spoken by the officer to effect the summons, such word or words, if they express nothing more, can be given in evidence against any one, whenever the factum of such appointment becomes a material inquiry. The criminal court did not err in admitting evidence that Kelly summoned assistance to aid him in making the arrest, nor in allowing proof of his words by which he effected the summons. It was the proper mode of making the proof.

A question was raised in the trial court as to the manner of proving the official character of Kelly, who was the victim of the homicide. White, the mayor, and other witnesses testified that he was acting as marshal of the town, and that he wore a badge, and carried a policeman's baton. There was no error in admitting this evidence, and there was no necessity for producing any record or written evidence of his appointment. 1...