I concur in the majority holding that the evidence against "Ted" Baker was insufficient. I also concur in the dissent by Judge French, so far as it holds that there should be a reversal as to Ellis Baker for the reasons he has given.
I am, however, wholly unable to agree that Luther Baker has had a fair trial in one important and vital particular.
It is not seriously claimed that the sheriff was armed with, or acting under, a warrant, at the time of the shooting and the jury might well have found that he was not. According to the testimony of Luther Baker, as to the truth of which the jurors were the sole judges, he was fired upon and wounded in the leg before any demand or notice of any kind was given to him, and that by a person, or persons, wholly unseen, and whose presence, until that instant, was *Page 106 wholly unknown to him. With this testimony in mind, the defense requested instructions properly defining the duties and powers of a sheriff in making an arrest without a warrant, and defining also the right to resist an unlawful arrest; all of which were refused, and the usual instruction on self defense was given in lieu thereof.
Technically, the instruction on self defense was proper, but in my opinion it was wholly insufficient under the peculiar circumstances. It is a matter of common knowledge that an ordinary individual firmly believes that a sheriff may rightfully arrest anyone suspected of an offense anywhere, at any time, by authority of his suspicions alone, and therefore the stock instruction on self defense, based on a design of the person slain to commit a felony, or to do great personal injury, wholly failed to bring to the attention of the jury the vital question upon which the defense relied.
In my opinion it was prejudicial error to refuse the requested instructions defining the powers and duties of the sheriff and the right of the accused to defend himself against unlawful arrest.
For these reasons I dissent.