Warsham v. State

• Decision Date: 20 May 1919
• Docket Number: 7 Div. 576
• Citation: 17 Ala.App. 181,84 So. 885
• Parties: WARSHAM v. STATE.
• Court: Alabama Court of Appeals

84 So. 885

17 Ala.App. 181

WARSHAM v. STATE.

7 Div. 576

Court of Appeals of Alabama

May 20, 1919

Rehearing Denied June 30, 1919

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Walter Warsham was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Judgment reversed by Supreme Court, 84 So. 889.

The facts sufficiently appear from the opinion of the court. The exceptions referred to as taken to the oral charge were as follows:

(1) To that part of the charge defining deliberation, wherein the court stated no moment of time was necessary if he thought--that he intended to strike even only for an instant of time.

(2) That part where the court said, when it is shown that a life has been taken by a pistol, that that raises the presumption of malice; also where the court stated defendant had no right to enter that home, no right to arrest, unless the offense was committed in his presence, if not in his presence, he was a trespasser; also that the law makes it the duty of the officer to inform the prisoner for what he is being arrested, etc.

The following charges are noted as refused to the defendant:

(1) The defendant was under no duty to retreat before firing the shot which killed the deceased.

(2) While the law does not clothe an officer with authority to judge arbitrarily of the necessity of killing prisoners he cannot kill unless there is a necessity for it, and if the jury have a reasonable doubt as to the necessity of killing the deceased, their verdict must be not guilty.

(3) Under the facts shown by the evidence in this case defendant was authorized to arrest deceased.

(4) If, at the time Warsham fired the shot, he as a reasonable man honestly believed his life was in danger, or was threatened with serious bodily harm, then he had a right to act on such reasonable appearance of things and protect himself; and this is true, if the defendant was a trespasser in entering the house, provided there was no reasonable mode of escape, except to shoot.

(5) The defendant as a police officer was not a trespasser in entering the Powell house under the evidence in this case.

(8) If you believe from the evidence that it was reported to defendant by two citizens of Alabama City that soldiers were at the house of Mrs. Powell, and that they were drinking and guilty of disorderly conduct or indecent conduct, and requested the defendant to go to such house and investigate the matter, and get the soldiers to leave the house, then it was the duty of defendant to go to said house and make such investigation, and in so doing he cannot be considered as at fault in bringing on the difficulty.

(9) If you believe from the evidence in this case that defendant was a police officer of Alabama City, and that the deceased used abusive, insulting, or obscene language in the presence of defendant, and in hearing of the streets of Alabama City, and defendant attempted to arrest deceased whereupon deceased resisted arrest, knowing defendant to be a policeman, if by some act or demonstration of the deceased he induced in the mind of defendant a reasonable belief that danger to the life or person of defendant was imminent, then defendant had a right to kill deceased, although deceased did not have any real intention of doing injury to defendant.

(10) Although you should find that the deceased was a guest at the home of Mrs. Powell, and as such was entitled to protection as guest, yet if you further believe that deceased cursed and used profane language within hearing of a public street, and the defendant heard such language, then he had a right, under the law, to arrest the deceased, and he was in any sense a trespasser.

(11) It was the duty of defendant, when called upon by citizens of Alabama City to prevent a breach of the peace actual or threatened, though not in his presence, and if, while trying to prevent such breach of the peace, the deceased, in the presence of the defendant, violated an ordinance of the city of Alabama City, it became his duty to arrest the deceased, and in making such arrest, or seeking to make such arrest he would be free from fault in bringing on the difficulty, and did not have to retreat, but had the right to stand his ground, using no more force than was necessary reasonably to effect such arrest.

(12) If the defendant did not have the opportunity, or was prevented by the deceased, to tell the deceased for what he was being arrested, then that duty resting on the officer was eliminated.

(15) Resistance to a legal arrest may consist in acts or demonstrations on the part of the party sought to be arrested, which import defiance and indicate an immediate purpose to use violence in resisting, and after such acts and demonstrations the officer may immediately employ such degree of force as is necessary to reduce the party to submission and accomplish the arrest, even to the taking of the party's life, if necessary.

(16) The defendant, as a police officer of Alabama City, on a complaint being made to him that the deceased and another were drunk and disorderly within said city, it became the duty of defendant to investigate such complaint, and if you further find from the evidence that, when the defendant approached the place where the deceased was, the deceased was cursing and otherwise manifesting his drunken condition, then it became the duty of the defendant to arrest the deceased, and did not have to retreat; and if you further believe from the evidence that the deceased, while under arrest, or while being arrested, suddenly kicked the defendant, and threw his hand towards his pocket, and told defendant he would blow

his damned brains out, the defendant had the right to act on the reasonable appearance of things, and if the defendant as a reasonable man honestly believed that it was necessary to shoot to save himself from death or great bodily harm, then he had the right to shoot, and the law will justify the shooting.

(17) There is no dispute in the evidence that at the time of the shooting the defendant was a policeman of Alabama City, and within the police jurisdiction of said city; that as such policeman the defendant was a conservator of the peace, and it was his duty to prevent a breach of the peace, actual or threatened in his presence; that if, under the evidence in this case, the defendant and another policeman, after having been notified that the deceased and another were guilty of disorderly conduct, it became the duty of defendant to investigate these charges, and if the defendant on approaching the house where deceased and another were, he heard cursing, and in order to prevent a breach of the peace the defendant entered said house, then the defendant was in the discharge of his duty in so entering said house; that if the deceased then cursed and assaulted the defendant, the defendant had the right and it was his duty to meet and to repel said assault with such force as was reasonably necessary to repel said assault; that if the deceased, while in charge of the defendant and another policeman, suddenly jerked loose and kicked this defendant, and threw his hand back towards his pocket, and said to this defendant that he would blow his brains out, the defendant had the right to act on appearances of things; and if the defendant as a reasonable man honestly believed that it was necessary for him to shoot to save his life, or to save himself from great bodily harm, then the defendant had a right to shoot, and the law would hold the defendant harmless.

(18) If you believe from the evidence in this case that the woman, Annie Powell, at whose house the deceased was when approached by the defendant, was a known prostitute, and her character was known to the defendant at the time he went to her house on the occasion of the killing, and defendant had good cause for believing that her house was being visited by strange men, then it is your duty to consider these facts in determining what motive prompted the defendant in going to the house of Annie Powell on this occasion, if you further find from the evidence that the defendant was a police officer of Alabama City.

Charges 25, 26, 27, and 28 were the same as 18, with the added idea that in going to the house defendant was not a trespasser.

(29) I charge you that, if you find any facts testified to in this case which are necessary and which are relied upon by the state to sustain the charge of murder set out in the indictment, in either degree as it has been defined to you, which facts tend to prove either that defendant was free from fault in bringing on the difficulty, and that there was a pending present peril to the life of the defendant or danger of great bodily harm, either real or apparent, as to create the bona fide belief of an existing necessity to kill deceased, and there was no reasonable mode of escape without increasing the peril of defendant, or that the homicide was the result of sudden passion engendered by a blow or injury given or threatened against the defendant by deceased, not calculated to produce death or great bodily harm, then the presumption of malice from the use of a deadly weapon does not obtain, and the state must convince the jury beyond all reasonable doubt from the evidence that defendant acted with malice, and failing to do so you cannot convict the defendant of murder in any degree.

(30) Under the evidence in this case, you cannot convict the defendant of murder in either degree.

P.E Culli, J.S. Franklin, and L.B. Rainey, all of Gadsden, for appellant.

J.Q Smith, Atty. Gen., and Richard Evans, Asst....