Martin v. State

¶1(after stating the facts). The instruction set out above is substantially the language of section 1964, of Kirby’s Digest, under which section this prosecution was had.

¶2Other instructions applying the section above quoted to the facts of this case were given, to which exceptions were duly saved, but we find it unnecessary to set them out.

¶3It appears from the evidence, which we have set out, that the jury might have found the facts to be that appellant claimed to have a warrant authorizing him to arrest Martin, and that appellant announced his intention of doing so. But there was attached to the announcement of his purpose to make the arrest the'condition that he would not do so if Martin would pay $5 as damages, and it appears that appellant’s purpose was either to collect this $5, or to whip Martin in the event he failed to pay. He may have been deterred from the accomplishment of either of these reprehensible purposes by the presence of Fears and his interposition in the discussion. But there is no evidence that appellant ever actually undertook to arrest Martin.

¶4“An arrest is made by placing the person of the defendant in restraint or by his submitting to the custody of the person making the arrest.” Section 2122, Kirby’s Digest.

¶5The person of Martin was not placed in restraint, nor did he submit himself to the custody of appellant, but, upon the contrary, Martin testifies that he did not think appellant meant to arrest him.

¶6(1-2) To constitute the offense of impersonating an officer under the section above quoted, it is not sufficient that one falsely asserts that he is an officer, and has the authority to act as such, nor is it sufficient that he declares his intention to act as such; but to constitute this offense, it is essential that he assumes or exercises, or attempts to exercise, some of the functions, powers, duties, or privileges incident or belonging to the office which he asserts he holds at the time. Appellant did not arrest Martin, nor did he undertake to do so. He merely stated that he had a warrant and falsely declared his purpose of making an arrest. But such false statements, even though made for the purpose of wrongfully extorting payment of a sum of money, did not constitute the assumption of the functions of an officer or the attempt to exercise the privileges, powers, or duties incident or belonging to an officer.

¶7We are not called upon to decide what, if any, violation of the law appellant committed by his conduct, as it is sufficient, for the purposes of this case, to say that the proof is insufficient to sustain a conviction under the section above quoted, and the judgment of the court below is, therefore, reversed and the cause remanded for a new trial. France v. State, 68 Ark. 529; Reed v. State, 97 Ark. 156; Jones v. State, 85 Ark. 360.