| Ala. | Apr 15, 1909
This action is by the administratrix of the estate of G. W. Hill, deceased, against Andrew W. Burgin, for the recovery of |30,000 damages for the alleged wrongful killing of said Hill. The action is predi
The seventh count of the complaint, the one on which the trial was had, is in this language: “The plaintiff, as the administratrix of the estate of G. W. Hill, deceased, claims of the defendant the sum of |30,000 as damages, for that heretofore, on, to wit, the. 13th day of June, 1905, the defendant was sheriff of Jefferson county, Alabama, and A. J. Gaddis and J. N. Curl were deputy sheriffs under, and agents of, the defendant, and that said A. J. Gaddis and J. N. Curl, while acting within the scope of their official employment as agents and deputy sheriffs of the defendant as aforesaid, did wrongfully cause the death of the plaintiff’s intestate, the said G. W. Hill, by wrongfully shooting him with a gun or pistol in Jefferson county, Ala.”
Plea 13 to the complaint is in this language: “Defendant, for further answer to the complaint, says that the defendant was, at the time mentioned in said complaint, sheriff of Jefferson county, Ala.; that previous to the time mentioned in said complaint there ha.d heen delivered to him for execution a certain warrant of arrest, issued by W. D. Paris, as coroner of Jefferson county, and who was at the time of the issuance thereof the coroner of Jefferson county, which said warrant of arrest commanded the sheriff of Jefferson county to arrest plaintiff’s intestate on the charge of murder.' And defendant avers that at the time mentioned two of his deputies, being duly authorized by the defendant., undertook to arrest the said plaintiff’s intestate; that said intestate undertook to escape from said arrest, and while fleeing from said deputies was shot and killed by one of said deputies. And defendant avers that the shooting of said intestate by one of said deputies reasonably appeared to be necessary in order to prevent the escape of plaintiff’s intestate.”
The demurrer and the appellant’s argument in support of it proceed upon the theory that, to render the plea safe from demurrer, it should have been therein alleged that the deputies informed plaintiff’s intestate of their authority as officers to arrest him; and, secondly, that it should have alleged that plaintiff’s intestate could not have been overtaken otherwise than by resort to the extreme measure of shooting him. Section 5210 of the Code of 1896 (section 6268 of the Code of 1907) provides that: “An officer may execute a warrant of arrest any day and at any time. He must, in doing so, inform the defendant of his authority, and, if required, must show the warrant,” etc.
It is this statute that the appellant takes as a basis for her first contention, invoking Brown’s Case, 109 Ala. 70" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/brown-v-state-6516416?utm_source=webapp" opinion_id="6516416">109 Ala. 70, 91, 20 South. 103, as authority in support of her theory and contention. In that instance the defendant was tried for and convicted of the crime of murder — the killing of a person who had been summoned by a special constable to aid him in arresting the defendant under a warrant for a misdemeanor. The killing occurred in the night, and while the arresting party was entering the house where the defendant Avas. One phase of the' evidence tended to shoAv that there Avas no notification to the defendant that a AArarra.nt had been issued for his arrest, and that the party had it present for exhibition, if required. Judge Brickell, for the court, after quoting the statute here involved, said: “The requirements of the statute are drawn from and in affirmation of the common law. They are ample to secure the execution of and submission to legal process; but they are equally intended to protect the citizen from unlawful inter
In the light of this decision, and of other authorities, we have no hesitancy in holding that a plea of justification, under a warrant, fails to show a compliance with the statute in question, and is insufficient, unless it avers in terms that the officer gave information to the defendant of his authority, or avers such a state of facts as exempted him from imparting such information. If the attending circumstances were such as rendered the giving of the information, or the attempt to give it, unavailing or unreasonable, the plea should set out such circumstances in a succinct form, that the court may determine, as matter of laAAr, their sufficiency vel non as an exemption from the discharge of the duty imposed by the statute. So far as the averments of the plea in judgment go, they are perfectly consistent with the idea that the deputies had ample opportunity to impart to the defendant in the warant the information required by the statute, even before he attempted to flee, and that they made no effort to do so. Moreover, we do not feel warranted by the law in saying, upon the averments of the plea, that an effort to give the information Avould have been futile. So, according to a well-established rule for construing pleadings,- it must be held that the court beloAV committed reversible error in not sustaining, on the point Ave have discussed, the demurrer to the plea.
In respect to the second proposition of the demurrer, it is undoubtedly true that an officer, in lawful pursuit of a felon, is allowed to kill, if to do so is necessary to prevent his escape by fight. — 1 East’s C.
We are constrained to hold that the plea is subject to the points made against it by demurrer, and that the court erred in overruling the demurrer. The judgment of the city court will be reversed, and the cause remanded.
Reversed and remanded.