Watson v. State , 83 Ala. 60 ( 1887 )

CLOPTON, J.

— The defendant was convicted on a charge of having committed an assault and battery on Harrison Ward. The only material question presented by the record is, whether the defendant is guilty of the offense charged, if he, without doing more, and using no excess of force, merely arrested, secured, and delivered him to the deputy-sheriff, who a few moments previously had called on the defendant to assist in making the arrest, informing him that he had a warrant for Ward’s arrest, but in fact had no such warrant, having mistaken him for another person of the same surname, but different Christian name.

By section 4666 of Code of 1876, it is made the duty of every person, when required to do so by an officer, to 'assist him in making an arrest; and by section 4139, it is made a criminal offense, to refuse or neglect to obey the command of any sheriff, constable, or other officer having authority, when summoned or commanded to assist such officer in making an arrest.

Any officer, authorized by law to make arrests, is empowered to summon or command necessary and proper assistance in apprehending criminals. A deputy-sheriff is authorized to make arrests. In 1 Bish. on Crim. Pro., § 185, the author says: “The officer, then, in making an arrest, or in securing his prisoner afterward, may, if he deems it necessary, call upon a bystander for help, or even command the aid of all persons in his precinct, and equally whether he is acting under a warrant or without. A refusal to assist him is indictable, provided he is proceeding by lawful authority; or, if he is not, his command will be a justification to one who, knowing his official character, comes in good faith to his assistance.”

The power of the officer to command assistance, when necessary, is essential to the due execution of the criminal law, and to the protection of society. This power, which extends to calling to his aid the posse comitatus, oftentimes .would be unavailing, especially in emergencies requiring prompt action and assistance, if tbe person summoned was required to examine tbe papers of tbe officer, and determine bis authority to make tbe particular arrest — whether it would be safe to assist him. Tbe officer is empowered by tbe statute to determine tbe necessity and time of assistance, and prompt obedience is tbe duty of tbe person summoned or commanded. Tbe necessity does not admit of delay. Tbe officer, if acting without warrant, may be a' trespasser; but tbe private person may rely upon bis known official character and bis call for aid, -and will be protected in doing what be is not at liberty to refuse or neglect. It is sufficient if tbe general official authority of tbe person, calling for aid, to make arrests, is known. When bis general power is known, bis call will justify tbe citizen in yielding obedience, unless be has notice of tbe want of authority in tbe particular case in which assistance is required. It would be a strange legal anomaly, to punish a citizen for obeying tbe command of an officer invested with lawful authority to command in tbe matter, and at tbe same time subject him to punishment if be refuses or neglects to obey. Tbe duty is not devolved, to inquire whether tbe officer has a process authorizing tbe arrest, or into tbe legality of tbe process. — McMahan v. Green, 34 Vt. 69; Reed v. Rice, 2 J. J. Mar. 44.

Several of tbe rulings of tbe court conflict with tbe rule herein declared. It is unnecessary to specify them.

Reversed and remanded.