105 Ala. 136 | Ala. | 1894
The defendant, as constable, having an execution in his hands, went with an assistant to the house of one R. A. Dial for the purpose of levying it upon a cow. The defendant in execution was absent from home. His wife, the person alleged to have been assaulted, claimed the cow as her property and forbade the levy. The officer asserted his intention to make the levy and proceeded to the lot where the cow was enclosed, and was in the act of pulling down the fence, when Mrs. Dial approached him with a stick and endeavored to make him desist. There is evidence tending to show that she struck the officer two or three blows, and there is evidence tending to show that she received several blows during the difficulty. It is also proven that the officer called to his assistant to bring him the “nippers,” handcuffs we presume, which it was shown he had with him. Whether they were placed upon Mrs. Dial does not appear. The evidence also shows, that the defendant held Mrs. Dial and directed his assistant to pull the fence down at a different place. It is fairly inferable that the levy was made and the cow driven off. The court charged the jury ex mero mota, to certain portions of which the defendant excepted. The defendant re
In the case of Johnson v. The State, 12 Ala. 840, it is said to be “a settled principle of our law, that every one has the right to defend his person ancl property, against unlawful violence, and may employ as much force as it is necessary to prevent its invasion but if he employs more force, than is necessary, he becomes a trespasser. The case was one where a party was indicted, for an assault upon an officer who attempted to levy a fieri facias upon exempt property. It was held that the same principle applied, as if the officer had attempted to levy upon the property of a stranger, and that in such cases, the owner might employ as much force as is necessary to prevent the levy. We limit the principle to cases where the officer is directed generally to levy the process. Where the mandate specifies the property which the officer is directed to seize or levy upon, no one can actively interpose, to obstruct the execution of the process. We are of opinion that the charge given by the court was authorized by the principles of law, declared in the foregoing authority. The propositions of law asserted are predicated upon the finding by the jury that the cow was the property of Mrs. Dial. There was evidence which, if true, established this fact. If the cow was the property of Mrs. Dial, the defendant was at fault in bringing on the difficulty, and could not justify under the plea of self-defense ; nor was he justifiable in holding Mrs. Dial until his assistant had pulled the fence down, so as to complete the levy on the cow, by taking her into possession. Such restraint was an assault. The instructions requested by the defendant asserted a contrary rule, or were argumentative and misleading, and were properly refused.
Affirmed.