Pennewell v. State

• Decision Date: 30 September 1912
• Parties: PENNEWELL v. STATE
• Court: Arkansas Supreme Court

150 S.W. 114

105 Ark. 32

PENNEWELL v. STATE

Supreme Court of Arkansas

September 30, 1912

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

The defendants, Pennewell, Lacey and Jarnigan, were indicted for nonfeasance in office alleged to have been committed by failing and refusing to arrest or cause to be arrested certain persons who had riotously assembled in the city of Fort Smith for the purpose of lynching a prisoner confined in jail. At the trial evidence was adduced by the State substantially as follows:

The defendants, Pennewell, Lacey and Jarnigan, were policemen in the city of Fort Smith and were on duty on the night of the 23d of March, 1912; about 10 o'clock P.M. a negro Sanford Lewis, was arrested by officer Pitcock for quarreling with two negro women on the streets of Fort Smith. The defendant Jarnigan arrested one of the negro women and the other escaped; Sanford Lewis jerked away from Pitcock, but was pursued and was recaptured by John Williams. During the time of his escape some one shot Andrew Carr, a deputy constable. It was thought at the time that Sanford Lewis had shot him, and it was so reported on the streets of the city. After his recapture, Sanford Lewis was placed in charge of the defendant Lacey and officers Danna and Phillips, who carried him to the jail. In the meantime the defendant Pennewell went to the assistance of the defendant Jarnigan and helped him to convey the negro woman to the jail. After the defendants arrived at the jail with their prisoners a mob variously estimated from one hundred to several hundred persons assembled around the jail and threatened to lynch the negro prisoner, Sanford Lewis. The threats of lynching were made in the presence and hearing of the defendants. The defendants, without taking any action in the matter, went on about their duties to other parts of the city; later on they returned to the jail with other prisoners, and in the meantime a mob had broken into the jail and had secured Sanford Lewis and had taken him out and lynched him. The defendants made no efforts to disperse the mob that had assembled for the purpose of lynching Sanford Lewis, and made no efforts to arrest any of them.

The evidence adduced by the defendants is substantially as follows:

When they put Sanford Lewis and the negro woman in jail, they did not see any great number of persons assembled around the jail, and did not hear any threats to lynch the prisoner Lewis. They were informed of some disturbances in the precincts which they were required to patrol, and immediately went back to perform their duties there. Later on they returned to the jail with other prisoners, and then learned that Sanford Lewis had been lynched during their absence. The evidence introduced by them shows that they did not know at any time that a mob had assembled for the purpose of lynching Sanford Lewis, or any other prisoner, and that they were not advised that Sanford Lewis had been lynched until after their return to the jail with other prisoners. At the request of the State the court gave the following instructions:

"1. Section 2524, Kirby's Digest. All militia officers and others who shall be so summoned shall give prompt obedience to such officer.

"Section 2526, Kirby's Digest. If the persons assembled do not immediately disperse, the magistrates and officers must arrest them or cause them to be arrested, that they may be punished according to law, and may command to their aid all persons present or in the county.

"Section 2528, Kirby's Digest. If such magistrate or other officer, having notice of an unlawful or riotous assembly neglect to proceed to the place of assembly, or as near as he can with safety, and exercise the authority invested in him to suppress the same and arrest the offenders, he is guilty of a misdemeanor.

"No 2. If the jury find from the evidence, beyond a reasonable doubt, that defendants were policemen and peace officers of the city of Fort Smith, in said county and district, and that there was at the time set out in the indictment (or at any time within twelve months before the return of the indictment) unlawfully and riotously assembled at the city jail in the city of Fort Smith an unlawful mob or riotous people, more than twenty in number, for the purpose of doing an unlawful act, and if you further find that said defendants were present at any time while such mob was assembled, and witnessed or knew that said unlawful and riotous assembly of persons had gathered at the city jail for an unlawful and felonious purpose, and neglected, failed or refused to arrest, or cause to be arrested, the persons so assembled or any of them, who had so unlawfully...