Hayes v. Mitchell , 80 Ala. 183 ( 1885 )

STONE, C. J.

The first and second charges given by the court at the request of the plaintiff below are in strict conformity with the rules we declared, when this case was before us at a former term. Hayes v. Mitchell, 69 Ala. 452.

In reference to the charges asked by defendant and refused. Mitchell, when arrested, had no right to select the officer before whom he would be tried, nor, to object to being brought to trial before the mayor or intendant of the town. Sess. Acts 1859-60, § 6, on p. 384; Sess. Acts 1875-6, p. 315. Charge No. 2 was rightly refused. Charge No. 3 was, in some respects, not full enough, was calculated to mislead, and was rightly refused on that account.

The last charge-asked — not numbered in the transcript — • should have been given. Part of the testimony tended to show that, on the day in question, there was drunkenness, noise and riotous conduct on the streets of Oxford. If this was believed, it afforded a good reason why the marshal should have been on the streets, ready to exercise his functions'if needed, and nntrainmeled by any incumbrance. And it was not necessary that the danger should be real. Reasonable ground for apprehending that there would or might be a breach or disturbance of the peace, would make it his duty to be present, that he might prevent violations of the law. Apparent necessity, on a reasonable survey of the surroundings, is, as an excuse, as valid as if it were real. Preventive measures, to be effective, must be taken on the reasonable appearance of things. It is too late, after the mischief is accomplished. Mitchell v. The State, 60 Ala. 26; Rogers v. The State, 62 Ala. 170.

The first charge asked, in view of the testimony, was scarcely full enough. Technically it may be correct, but it was not sufficiently explicit. Two acts were charged against the plaintiff, the arrest, and the imprisonment. To authorize a verdict in liis favor, the duty was cast on him of giving a sufficient excuse for each. We showed, when this case was formerly before us, what conditions would justify incarceration. We have repeated above, the surroundings which would justify an arrest without warrant. We have added, that reasonable appearances are as much an excuse for the conduct complained of in this suit, as actual realities are. These are the principles of law which must determine this case.

Reversed and remanded.