Tarwater v. State

• Decision Date: 15 May 1917
• Docket Number: 6 Div. 272
• Citation: 75 So. 816,16 Ala. App. 140
• Parties: TARWATER v. STATE.
• Court: Alabama Court of Appeals

75 So. 816

16 Ala.App. 140

TARWATER v. STATE.

6 Div. 272

Court of Appeals of Alabama

May 15, 1917

Appeal from Circuit Court, Marion County; C.P. Almon, Judge.

Elijah W. Tarwater was convicted of an assault with a weapon, and he appeals.Reversed and remanded.

The defendant was indicted and tried on a charge of assault to murder, was convicted of assault with a weapon, and from the judgment he appeals.The facts necessary to a decision are sufficiently stated in the opinion.

E.B. &amp K.V. Fite, of Hamilton, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAMFORD J.

There were several objections and exceptions to evidence as to confessions and admissions of the defendant as to who committed the assault, but later in the trial the defendant's counsel in open court admitted that the defendant did the shooting.This eliminated all of these questions, and rendered any error, if any, error without injury.

It was shown on the trial that the defendant at the time of the assault was the superintendent of a mine and a deputy sheriff, and by numerous questions and in many ways the defendant's counsel endeavored to prove that the party assaulted was trying to negotiate a sale of whisky presumably for the purpose of justifying himself in undertaking the arrest of the defendant without a warrant at the time of the shooting.

An officer acting as sheriff may, without warrant, make a lawful arrest.Code 1907, § 6267.In doing so he must comply with and conform to the law giving him this authority.When the arrest is made without warrant, it must be for a public offense committed or a breach of the peace threatened in his presence.Code 1907, § 6269.When arresting a person without a warrant, the officer must inform the person arrested of his authority and the cause of his arrest.Code 1907, § 6270; otherwise the person being arrested is under no duty to submit, and if the officer kills him, the officer is not protected by his office.It was said in Brown v State,109 Ala. 89, 20 So. 110:

"If there is not such knowledge or notice [of official character], [and the officer is killed by a person resisting arrest], the homicide cannot be more than manslaughter, unless the resistance was in 'enormous disproportion to the threatened injury'[citing authorities].There may be a presumption that the regularly commissioned sheriff is known to all the inhabitants *** of the county, and that the *** constable is known to all the inhabitants" of the beat."The presumption founded on the publicity and notoriety of official relation cannot be indulged if the officer making the arrest is *** of special deputation."

It is not the duty of the citizen to submit to any other than a lawful arrest.Brown v. State, supra.The law does not intend that the citizen shall yield his liberty to the dominion of even a known officer--certainly not to an unknown one--upon his mere demand, who gives no information of his authority.If this were not true, no man would be safe from invasions of his personal liberty.

In this case the evidence for the defendant tends to show that Glover knew he was an officer, and that the attempted arrest was being made...