Shumate v. State

• Decision Date: 12 June 1923
• Docket Number: 8 Div. 995.
• Citation: 97 So. 772,19 Ala.App. 340
• Parties: SHUMATE v. STATE
• Court: Alabama Court of Appeals

97 So. 772

19 Ala.App. 340

SHUMATE v. STATE

8 Div. 995.

Court of Appeals of Alabama

June 12, 1923

Rehearing Denied July 10, 1923.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Robert Shumate was convicted of manslaughter in the first degree and appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Shumate, 97 So. 777.

These charges were given at the request of the state:

"A. The court charges the jury that an arrest or an attempt to arrest a person without a warrant made by an officer for a misdemeanor not committed in his presence is illegal, and a person's resistance to such an arrest constitutes no justification for taking of his life.

"B. The court charges the jury that it is no criminal offense for a person to appear in a public place drunk even in the presence of men, women, children, and officers of the law, and the officer has no right to arrest such person without a warrant, unless such person manifests his drunken condition by boisterous or indecent conduct, or by loud and profane discourse, and this manifestation of such drunken condition must be made in the presence of the officer, and the fact that it is manifested in the presence of some other person, who reports it to the officer, and not in the officer's presence, would not authorize the officer to attempt to arrest such person without a warrant.

"C. The court charges the jury that an officer has no authority to arrest for misdemeanor without a warrant unless such misdemeanor is committed in the officer's presence, and, if the officer undertakes to arrest a person for a misdemeanor without a warrant which was not committed in his presence the officer becomes a wrongdoer, and, if he then provokes a difficulty, and in the course of the difficulty it becomes necessary for the officer to kill the person in order to save his own life, then such officer cannot set up self-defense.

"D. The court charges the jury that, if the defendant was not free from fault in provoking or bringing on the difficulty, he could not be guiltless."

The following charges were refused to defendant:

"( 1/2) The court charges the jury that, if you find after considering all evidence in this case that Tom Haney has sworn falsely to any material fact in this case, then you have a right to weigh his testimony on any other material fact in the case in the light of such testimony so falsely given on any material fact.

"(1) The court charges the jury that, if you believe the evidence in this case, you should find that the defendant, at the time of the alleged difficulty, was a duly qualified and acting deputy sheriff of Marshall county, Ala."

"(3) The court charges the jury that you are authorized to consider the evidence of the general bad character of plaintiff for peace and quiet in connection with all the other evidence in the case in determining who was the aggressor in said difficulty."

"(7) The court charges the jury that it is a question of law for the court to say what is a legal and proper manner in which to make an arrest, and that, if you find from the evidence that defendant (Shumate) had the right to arrest Tom Haney at the time and place of the alleged difficulty, and you further find from the testimony that defendant in good faith undertook to arrest said Tom Haney, and that in attempting to make said arrest defendant walked up to said Haney and put his hand on his arm or shoulder, and asked him [Haney] to come and go with him, this would be a proper way and manner in which to make the arrest."

"(10) I charge you, gentlemen of the jury, that the proper way for an officer to make a legal arrest is for the officer to go to the party that is committing the crime in the presence of the officer, and lay his hand on such person, and ask said person to go with him, or that the party may consider himself under arrest."

"(16) Gentlemen of the jury, the doctrine of self-defense has no application to a homicide committed by a party who is resisting a lawful arrest, for to do his duty the officer must become the aggressor, and, while it is his duty to effect the arrest without the use of unnecessary violence, he is not required in any event to retreat before any one resisting a lawful arrest.

"(17) Gentlemen of the jury, if you believe all the evidence in the case beyond a reasonable doubt you should find that Tom Haney on the occasion of the difficulty was drunk or intoxicated."

"(21) The court charges the jury that, unless the evidence excludes every reasonable supposition but that of guilt, you should find the defendant not guilty.

"(22) The court charges the jury that, if any one of you have a reasonable doubt arising out of all or any part of the testimony in this case of the defendant's guilt you should acquit him.

"(22 1/2) The court charges the jury that the defendant is a competent witness in his own behalf, and, if the evidence of the defendant himself, when considered in connection with all the other evidence in the case, is sufficient to create in the minds of the jury a reasonable doubt of the guilt of the defendant, you should acquit him.

"(23) The court charges the jury that the burden is upon the state to prove to you beyond all reasonable doubt of the defendant's guilt before you can convict him, and, if, after considering all the testimony in this case you or any one of you, are satisfied beyond all reasonable doubt that the defendant is guilty, then you should acquit the defendant."

"(35) The court charges the jury that, if you believe from all the evidence in this case that Tom Haney manifested a drunken condition in a public place, where one or more persons were congregated, by staggering or by the use of loud and profane discourse, then the defendant had a right as a duly appointed and acting deputy sheriff to make a lawful arrest of Tom Haney, and, if you further find from the evidence that the defendant was attempting to make a lawful arrest, then, in that event, the defendant was not making an assault on Tom Haney by laying his hand upon his shoulder or arm, and saying, 'Tom, I will have to arrest you.'

"(36) The court charges the jury that, if you believe from the evidence in this case that the defendant, Bob Shumate, was notified that there was a drunken man there in a public place, where several persons were congregated, he had a right, as an officer of the law, to place himself in a position to see such person, and if you further believe from all the evidence that Shumate saw Tom Haney going down the public road manifesting a drunken condition by staggering or using loud and boisterous language, it was Shumate's duty as deputy sheriff to follow Haney, and attempt to make a lawful arrest."

D. Isbell and P. W. Shumate, both of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

When the jury was being selected to try this case it developed that two of the jurors comprising the regular panel for the week, and from which the jury to try defendant was to be selected, had been members of a jury which tried a damage suit involving the same facts as the case then on trial. The court sustained a challenge by the state for that cause, and defendant excepted. This was a reasonable exercise of the discretion of the court under section 7280 of the Code of 1907. Curtis v. State, 118 Ala. 125, 24 So. 111.

The testimony of the witness Beal as to threats or expression of ill will towards the dead man and his brother were admissible to show malice on the part of defendant, and mere lapse of 18 months' time does not render them inadmissible. Rector v. State, 11 Ala. App. 333, 66 So. 857; Tennison v. State, 183 Ala. 1,

62 So. 780; 8 Mich. Digest, 243, par. 114 (3).

The testimony of the witness Otis Wilson as to what was said and done by the parties engaged in the difficulty was obviously admissible as a part of the res gestæ, and, as to the questions being leading, that was in the discretion of the court.

The court did not commit reversible error in sustaining the state's objection to defendant's question asked the...