Opinion
6 Div. 745.
May 9, 1918.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
Goodwyn Ross, of Bessemer, for appellants. Bonner McAdory and Forney Johnston, all of Birmingham, for appellee.
On the trial of this cause, the court instructed the jury that it was without dispute the defendants were authorized under a valid warrant to arrest the plaintiff, and the trial of the cause seems to have proceeded throughout upon this assumption by the prosecution and the defense. The defendants insisted that they only resorted to force after the plaintiff had resisted arrest by striking the defendant Clements, whirling from him, and running off about 25 feet and then firing at the defendants with a pistol, which they had found on his person, and that what they did was therefore in self-defense. In instructing the jury upon this theory of the defense, the court charged them that, before the defendants can invoke the doctrine of self-defense in this cause, they must first establish their freedom from fault in bringing on the difficulty, and further charged that they were under a duty to retreat unless by so doing they would increase the peril to themselves. In Birt v. State, 156 Ala. 29, 46 So. 858, is the following quotation taken from the case of Clements v. State, 50 Ala. 119, which is here pertinent:
"In all cases, whether civil or criminal, where persons having authority to arrest or imprison, and using proper means, * * * are resisted in so doing, they may repel force with force, and need not give back; and, if the party making the resistance is unavoidably killed in the struggle, this homicide is justifiable."
In the Birt Case it was further said:
"The doctrine of self-defense has no application in such cases, because it is the duty of the officer to effect the arrest or imprisonment of the offender without the use of unnecessary or improper violence. * * * This duty could not be performed if any element of self-defense was essential to the protection of the officer. He must, to do his duty, become the aggressor, and in no event is he required to retreat before an assailing prisoner."
In Holland v. State, 162 Ala. 5, 50 So. 215, the court said:
"While an officer having a warrant of arrest is justifiable in killing one charged with a felony, if he resist or flees, this rule does not prevail as to arrest of persons charged with misdemeanors. 'When an attempted arrest is for an ordinary misdemeanor or in a civil action, life can only be taken by the officer where the person arrested resists by force, and so endangers the life or person of the officer as to make such killing necessary in self-defense.' Kerr on Homicide, 187; Birt v. State, 156 Ala. 29, 46 So. 858; Clements v. State, 50 Ala. 117. If the circumstances show a willful murder, rather than an attempt to arrest the deceased, the warrant can be of no benefit to the defendant. 21 Cyc. 953, and authorities cited in note 39. On the other hand, if the defendant is armed with a legal warrant, he has the lawful right to enter the premises of the deceased, is under no duty to retreat in case of resistance, and can repel any force used by the deceased, not in excess of what may be necessary to make the arrest or to protect his life or himself from serious bodily harm."
It is recognized as a general rule that in a case of a misdemeanor an officer has no right, except in self-defense, to kill the offender, either in attempting to make an arrest, or in preventing his escape after arrest. Yet when an officer, while lawfully arresting a person charged with the commission of a misdemeanor is resisted by armed force, he is not compelled to retreat, but may use such force as will enable him to overcome the resistance offered him, even to the extent of taking the life of the offender, if he is actually resisting to such an extent as to place the officer in danger of his life or of great bodily harm. 2 R. C. L. 473, and authorities cited in note; State v. Garrett, 84 Am. Dec. 359; note to State v. Smith, 4 Ann. Cas. 758. It was this defense which the defendants here sought to interpose. The charges of the court to the jury, therefore, exceptions to which were reserved, as indicated, were not in accord with this principle. The giving of such instructions constitutes error for which this cause must be reversed.
The evidence for the respective parties was in sharp conflict. The plaintiff testified in his own behalf. The witness Phifer examined by the defendants testified that he knew the general reputation of the plaintiff in the community in which he lived. We think reversible error was committed in the court sustaining the objection of the plaintiff to the question propounded this witness as to whether or not such reputation was good or bad, and this error does not appear to have been subsequently cured. The plaintiff having become a witness in the cause was subject to such impeaching testimony. Brown v. Moon, 196 Ala. 391, 72 So. 29; Kilgore v. State, 124 Ala. 24, 27 So. 4.
While the letter found on the plaintiff contained information as to a warrant from Tuscaloosa county and tended to contradict plaintiff, yet this was not the warrant on which the arrest was attempted to be made, and was therefore immaterial. No reversible error was committed by the court in sustaining the objection to the introduction of such letter in evidence, relating to an immaterial matter.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.