Roberson v. State

• Decision Date: 15 November 1890
• Citation: 14 S.W. 902,53 Ark. 516
• Parties: ROBERSON v. STATE
• Court: Arkansas Supreme Court

14 S.W. 902

53 Ark. 516

ROBERSON v. STATE

Supreme Court of Arkansas

November 15, 1890

APPEAL from Johnson Circuit Court. J. E. CRAVENS, Judge.

Roberson appealed from a conviction of voluntary manslaughter. As deputy marshal he arrested deceased without a warrant for a supposed offense not committed in his presence. Deceased resisted, a difficulty ensued, and appellant shot and killed him, as he claims, in self-defense. No errors are assigned save in the court's charge as referred to in the opinion.

Judgment affirmed.

Davis & Bullock and W. D. Jacoway for appellant.

1. Instructions of the court took from the consideration of the jury defendant's position as an officer, and told the jury practically that the arrest was illegal, and being illegal, the defendant was the aggressor ab initio, and that it was his duty, although deceased had submitted to his authority, to release the prisoner and retreat. 2 Bish., Cr. Law, (2d ed.), secs. 579-80; 2 Bish., Cr. Law (7th ed.) secs. 650, 651; Russell on Cr., vol. 1, p. 665; Wharton, Cr Law (3d ed.), 470-1-2; Archbold's Cr. Prac., 676 and note 2, 680.

2. Appellant was a town officer, and as such it was his duty to suppress riotous or disorderly conduct, and to arrest such disturbers even without a warrant. Mansf. Dig., secs. 778, 808, 802, 2355; 1 Bish., Cr. Pr. (3d ed.), 179, 180, 181, 183, 184; Wharton, Law of Homicide, 69 to 82; Tiedeman, Lim. to Police Powers, 83-4; 2 Bish., Cr. Law, (2d ed.), secs. 579, 580; 2 Bish., Cr. Law (7th ed.), 650-1; Russell on Cr., vol. 1, p. 665; Wharton, Cr. Law (3d ed.), 470, 471, 472; Arch., Cr. Pr., 676 and note 2, 680; Murfree on Sheriffs, 1164.

3. Sections 6322 and 798, Mansf. Dig., authorized the arrest in this case without a warrant.

W. E. Atkinson, Attorney General, for appellee.

1. No felony had been committed by deceased, nor had appellant any reason to believe that a felony had been committed, nor was any offense committed in his presence. Therefore, his arrest without a warrant was illegal. 55 Am. Dec., 97.

And it follows that the deceased had a right to reasonably resist such arrest, and if a contest ensued between them, the defendant was not entitled to the protection due an officer in performing his duties, and, being the aggressor, should have endeavored to decline the contest. 8 Tex. App., 545.

2. Submission to an unlawful arrest is no waiver of the right to resist, especially when the arrest is coerced. 8 Tex. App., 545.

Mansf. Dig., sec. 2002, prescribes the manner in which a peace officer may make an arrest. Sec. 789 merely enumerates the cases in which a marshal may arrest, but the manner of exercising the power is regulated by sec. 2002.

OPINION

HEMINGWAY, J.

A peace officer may make an arrest without a warrant when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony. Mansf. Dig., sec. 2002. The appellant declared, when he made the arrest, that it was for an offense which it is not now claimed was committed in his presence therefore, unless he had reasonable grounds to believe that it was a felony, he had no authority to make the arrest without a warrant. In doing so he invaded the right of liberty of deceased, than which none is dearer to a free man. The party arrested was justified in defending himself against the unlawful invasion in a manner reasonable and necessary to regain his liberty. If, in making such defense, he used violence against the...