150 So. 154 | Ala. | 1933
The action is against the sheriff and the surety on his official bond, and it is for false imprisonment. The complaint is substantially in Code form (Code 1923, § 9531, form 19), and alleged that the arrest and imprisonment were unlawful. The plaintiff thereby anticipated the defense of justification and unnecessarily assumed the negative burden of proof. Strain v. Irwin,
The proof showed that the duties of the defendant sheriff arrested the plaintiff on two warrants issued by a justice of the peace. They directed the arrest of Austin Robertson. One was for reckless driving, a misdemeanor, and the other for not stopping after an automobile accident and making himself known, a felony. Gen. Acts 1927, pp. 376, 377, § 76 (c); section 3874, Code.
In both of the warrants, after the name, Austin Robertson, was stated, the justice, apparently by way of description, added the abbreviation "(Col.)." On the back of one of them the statement is that defendant lives in Tuscaloosa; Tag No. 222420 A. The other did not have such indorsement. They were returnable to the inferior court of Tuscaloosa, and it was necessary to have the approval of the solicitor before they were executed. They came to the solicitor before they did to the sheriff and his deputies, and he either blotted out or marked through the abbreviation "(Col.)" where it appeared on them, and in that form they went to the deputies for execution. There was no colored man by that name known to them, or who is shown to have resided in Tuscaloosa. Plaintiff was the only one by that name shown to have resided there or known to any of the officers. The automobile tag number mentioned was issued to him, and there was no record of a transfer. There had been an accident in which a negro man was injured and died. The affidavits were sworn to by his widow, who stated to the officer issuing the warrant that she was not there when the accident occurred, but that "they said it was a colored fellow, * * * that there was a colored man and a boy in the car," but the tag had the number stated on the warrant. It had been found that such a tag was issued to plaintiff. Plaintiff had sold the car and tag with it, and was not in it at the time of the collision.
The contention by plaintiff was that the warrant did not authorize his arrest, for it was against a colored man, and that it was void because of the alteration, and that it was no justification for his arrest and imprisonment.
There is nothing lacking in the validity of the warrants to justify their execution, unless rendered void by the alteration. An alteration of all information or its spoliation after it has been issued by one without authority of law does not ordinarily affect its validity in the form as it appeared without the alteration, Bradford v. State,
When one offers an instrument which has an alteration which is of material advantage to him, the burden is on him to explain such alteration. Whitewater Lumber Co. v. Langford,
But the evidence without dispute shows that neither the sheriff nor his deputies marked out the "(Col.)," and shows that it was done by the solicitor before it came to them. There was nothing in that circumstance nor any other which rendered it void on its face. The arrest of the one named and intended to be arrested in the warrant was therefore justified. T. C. I. R. R. Co. v. Butler, supra; Emerson v. Lowe Mfg. Co., supra; Leib v. Shelby Iron Co., supra.
We may add, however, that if a warrant does not justify its execution, it may nevertheless be sufficient as a reasonable cause to believe that the person arrested has committed a felony when it charges him with a felony, though it may afterwards appear that he had not done so. Section 3263, Code; Ex parte Smotherman,
We doubt not that if there are two men of the same name stated in the warrant and the officer arrests one who he knows is not the one intended, or he does not in good faith believe him to be so, the warrant would not be a justification. But if he in good faith arrests *381
one of two men having the same name stated in the warrant, believing him to be the one intended, he would be justified. 11 R. C. L. 799, 800; 25 Corpus Juris, 490; Spear v. State, supra. And the justification would be all the more apparent if there were only one by that name known to the officers or shown to exist. 2 R. C. L. 486. In Simpson v. Boyd,
The evidence was without dispute or conflicting inference that plaintiff was the person named in the warrant as it appeared when received and executed by the deputies. While some of it was in conflict as to the nature of the erasure of "(Col.)," whether then merely marked out with pen and ink line or blotted out as it now appears, in either event it indicated an erasure, so as to impress the officer that the defendant was not colored. On the other hand, it described him as having a certain tag number, which was in fact issued to plaintiff. All this showed that plaintiff was the person intended by the warrant to be arrested, as no one else is shown to have the same name, or other features of the description.
As we have said, if the warrant is valid, on its face, issued by one with authority, and plaintiff is the person intended to be the defendant, and he is named in the warrant, his arrest is the duty of the sheriff, and his deputies, regardless of his guilt, or whether the officer believes him guilty. Under such circumstances his arrest is justified.
We have pointed out that the burden of proof was upon plaintiff to show that his arrest was unlawful. This may include the failure to bring the offender before an officer for trial, unless the unreasonable hour or inaccessibility of the officer or other cause prevents. Hayes v. Mitchell,
The arrest was made after midnight, and there was then no duty to carry him to an officer for trial or bail. In fact, the warrants had an indorsement prescribing the amount of bail. The sheriff owed him no duty to seek sureties for him. He was released next morning at a reasonable hour. Neither in effecting his arrest nor in incarcerating him has the plaintiff shown that the deputies acted unlawfully, nor can such in inference be reasonably drawn from it. Defendants were therefore due the affirmative charge. Other questions need not be treated.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
