57 So. 497 | Ala. Ct. App. | 1912
The defendant was indicted for assault with intent to murder, was tried by a jury, by their verdict found guilty of assault and battery, and from the judgment of the court pronounced on that verdict appeals.
It appears that a writ of attachment was sued out by some one against the estate of the defendant and was placed in the hands of one Bryson, a deputy sheriff, to.'
The attempt by the above-named officer and his assistants to levy the above writ upon certain flour on the porch of the residence of the defendant was resisted by the defendant; the officers, or some of them, attempted to arrest the defendant on that account; and the difficulty in which the defendant made the assault for which this indictment was found was thereby precipitated. The writ had previously been, without objection on the part of the defendant, levied upon a certain lot of the defendant in the town of Cullman and also upon the contents of his store, barn, and blacksmith shop. The evidence tends to show that the defendant had on his porch certainly one, and possibly two, barrels of flour, and that he also had some flour in his dining room or kitchen. The evidence is in some confusion as to the exact amount of all of this flour, but the defendant’s testimony tends to show that there was not on his porch and in his dining room or kitchen exceeding two barrels. The evidence without dispute shows that, when the officers came to seize the flour on the porch, the defendant told them that they had already levied on “fiftyfold” more than was necessary to satisfy the attachment, and that he did not intend to allow them to take the “last bite of bread from his family;” that one of the officers then attempted to seize the. defendant, saying that he was going to arrest him; that the defendant thereupon possessed himself of a gun; and that immediately afterwards several shots were fired, three by the
“In determining the amount of property to be levied on to satisfy an execution, the officer is left to exercise his own judgment, free from constraint or control of either plaintiff or defendant; but it is his duty to take property sufficient to satisfy the execution, allowing for reasonable and probable depreciation of the property at a forced sale, but he should not make the. levy so unreasonable and excessive as to bear on its face the appearance of oppression and unnecessary rigor.”—Governor v. Powell, 9 Ala. 83; Griffin v. Ganaway, 8 Ala. 625; Thompson v. Jones, 84 Ala. 279, 4 South. 169; 17 Cyc. 1112, § 8.
An officer making an excessive levy is liable to the defendant in execution for the damages suffered by him by reason thereof in an action of trespass on the case.—Thompson v. Jones, 84 Ala. 279, 4 South. 169.
1. One of the important questions in this case was whether the defendant was free from fault in bringing-on the difficulty which resulted in the assault for which be was indicted. The difficulty occurred, confessedly, because the officers, or some of them, attempted to ar
2. Under the provisions of section 4237 of the Code, uo levy of an execution or attachment can be lawfully made upon certain specific articles belonging to the defendant in. such execution or attachment, and among such articles “meat not exceeding one hundred pounds, lard not exceeding fifty pounds, meal and flour not exceeding ten bushels” are expressly mentioned. There was some evidence in this case from which the jury were authorized to infer that the defendant had been guilty of hiding out some of his property which was "subject to levy and sale. Some of his property evidently bought to be placed in his store and sold by him as a merchant was in his barn and in his blacksmith shop. Of this condition the evidence tends to show the officers were apprised by the defendant when they went upon his premisés; but these conditions were matters to be considered by the jury in determining whether the flour on defendant’s porch and in his kitchen was, as claimed by him when the officers undertook to levy on it, all of the flour belonging to the defendant which
If that flour was exempt, then the defendant had the right, if he informed the officers that it was all that had been left to him, to say to them that they could not levy upon it, to resist such levy, and to resist his arrest if an arrest was attempted on that account. In other words, if the defendant resisted arrest because the 01-ficers attempted to arrest him solely because he would not allow them to levy an attachment upon property which the law exempted to him from such levy, and the defendant had given the officers notice that they had already levied on all his other breadstuffs, then the defendant was, under the law, not the provoker of the difficulty, whether such officers had already levied upon more than sufficient property to satisfy the attachment or not. “We do not think there is, in law or in reason, any substantial distinction between the levy of an attachment or an execution on the property of a stranger, or the levy upon articles exempt by law from levy and sale, after the sheriff had been warned of the fact thac they are exempt. * * * It was the intention of the Legislature that these articles of' prime necessity for the comfort of the family should be kept inviolate for its use, and it would,.in a great measure, defeat the object of the law, if the defendant was required to submit to'such a levy, and seek redress against the officer by
“It- is a settled principle of our law that every one' has the right to defend his person and property against unlawful violence and may employ as much force as is necessary to prevent its invasion, but if he- employs more force than becomes necessary he becomes a trespasser.’—Henderson v. State, supra; State v. Johnson, supra.
“When such a. trespass is threatened or committed, the party sought to he arrested has no right to kill, unless the unlawful act, when properly and lawfully resisted by him, is persisted in by the trespasser until it ultimately results either in an actual necessity on the part of the party sought to be arrested to kill in order to prevent to himself great bodily harm, or the appearances are such as to engender the reasonable belief of the existence of such necssity.”—Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711.
While the evidence showed that at least two- of the officers were armed when the difficulty occurred, and that they shot at the defendant, nevertheless the court refused to allow the officers to answer questions propounded to them by the defendant asking them if they were not armed when they came on his premises, where they carried such arms, etc. The defendant, in resisting the seizure of the flour and in resisting the arrest, armed himself with a gun, which he afterwards used in the difficulty, and we think that the above evidence which the defendant sought to introduce was at least competent because it tended to explain why the defendant procured his gun at the time of the threatened arrest.
There are a number of questions presented by the record which we do not discuss. They may not arise on the next trial, and we do not deem it necessary to consider them.
Reversed and remanded.