118 So. 794 | Ala. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *470 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *471 The suit was for damages against a deputy sheriff and surety on his official bond. The deputy having died after summons and service, the suit was discontinued as to him, and proceeded to judgment against the surety.
The plaintiff, as he ran from the direction of or within 25 or 50 yards of a still, from which whisky was running, was shot by an officer in his apprehension and arrest. Plaintiff was the only person seen by the officers at or leaving the still, and said officers were about 75 or 100 yards from plaintiff when he ran and was shot.
The original complaint was filed February 2, 1926, to which demurrer was interposed on March 5, 1926. The original complaint was amended October 9, 1926, and February 15, 1927, and on the last-named date the suggestion of the death of codefendant and principal in the bond sued on was made by defendant's sworn plea in abatement, and the death of John Davis Jones was admitted by plaintiff. The latter did not ask leave to revive against the personal representative of the principal, when known, but made a motion to strike the plea, which was sustained. There was no demurrer to the plea. After said ruling, plaintiff amended the complaint by striking as a party defendant, the principal in the official bond, leaving as only defendant the surety. The motion for discontinuance was again made by defendant and stricken on plaintiff's motion. The proper way to raise a question of law on the sufficiency of a plea (that is not frivolous on its face) is by demurrer, pointing out the defect and giving opportunity for amendment, if the plea be such as is subject to amendment. Huntsville Knitting Mills v. Butner,
The distinction between a motion in *473
writing, made part of the pleading and the record proper, under section 9459, Code, and that for a new trial and ruling thereon, under section 6088, Code, has been heretofore declared by this court. King v. Scott,
In determining the right of amendment and procedure to judgment against the surety alone, after death of the principal obligor of the official bond, without revivor against the personal representative of deceased, when known, it is necessary to examine pertinent provisions of several statutes.
The original act, as it now appears in its codification (Gen. Acts 1915, p. 605), gave the right of amendment to parties, "whether served or not," without making "a discontinuance as to any defendant not stricken out," etc. Section 5718, Code; Crawford v. Mills,
The provisions of section 5718 (Gen Acts of 1915, p. 605) and those of section 9513 of the Code are consistent as to amendment of parties, and are in accord with the trend of modern reformed procedure. Crawford v. Mills,
The instant suit was brought against the principal and surety, who were duly served with process. The death of one defendant did not, under the common law, operate as a discontinuance as to the defendants living and before the court. Garrett v. Lynch,
It follows that the terms of the foregoing statutes authorized the amendment and procedure to judgment against the sureties, alone, on the official bond for causes and injuries within that undertaking, when the death of the principal occurs after service of process, and plaintiff, by appropriate amendment, declines to proceed against the personal representative of such decedent. Such is the effect when the provisions of section 5717 of the Code for revivor are to be considered with the express provisions of section 5718, dealing with the right of amendment without a discontinuance, and to which we have adverted. The former statute is permissive only, and judgment may be rendered, as we have indicated, against the survivor, without revivor as to a personal representative of deceased codefendant. That this statute is permissive merely is indicated in Garrett v. Lynch,
In Garrett v. Lynch,
"Here the suit could not proceed against the dead defendant, but could only proceed against his representative upon revival. And this revival is optionary with the plaintiff. He has the remedy existing before this statute. He may permit the suit against the dead defendant to abate, and bring a new action against his representative, or he may revive this suit under the statute. The language of the statute is positive and peremptory in giving the right of revival in this case, but it is permissive in requiring the exercise of the right. It expressly declares that the suit 'may be revived against the representatives of the deceased obligor or obligors.' It does not require that this right shall be exercised, and that a failure to do so shall defeat the whole action. We do not think that such a construction can logically be drawn from the language of the act nor from its purpose. Then we can not legitimately conceive it to exist."
Is the rule, or reason therefor, different in suits on official bonds? The official bond of a deputy sheriff constitutes a contract between the officer and his surety, on the one hand, and the state and all persons who may be injured by a violation of such bond, on the other. Fite v. Pearson,
"The defendants contend that plaintiff's action sounds in tort, and since the tort-feasor, Pakkala, is dead, the cause of action died with him, and that the action cannot be maintained against his personal representative; and further that, since his estate is not liable, no liability exists against the surety, for the reason that, by the express language of the statute, the surety is liable for the violation of the bond only in cases where the licensee or principal is liable. We do not concur in either contention. * * * Though the act of the person who caused the death of plaintiff's intestate in the case at bar was a tort, a crime, the act of Pakkala, the saloon keeper, in causing him, by the unlawful sale of liquor to him, to become intoxicated, thus bringing about a condition on his part which caused the commission of his wrongful act, was a violation of the bond, a breach of the contract; and herein is the basis and foundation of plaintiff's action. * * * The wrongful acts of Pakkala and Drexler do not constitute the foundation of the action, but serve only to prove and establish the breach of the covenants of the bond."
In Roebuck v. Roberts, supra, and Roberts v. Hunt,
The amendment, by striking the name of Jones as a defendant, presented no issue of surprise or injustice to the remaining defendant, and there was no arbitrary exercise or abuse of power by the trial court in overruling the motion for continuance addressed, as it was, to a sound discretion. Knowles v. Blue,
The trial was had upon counts as amended Nos. 4, 6, and 7. It is urged there was error in overruling demurrer to counts 4 and 7. The allegation in the counts, averring, as it does, "under color of his said office and within the line and scope of his authority as such deputy sheriff in making said investigation into an alleged violation of the law of the state of Alabama," is consistent under the statute prescribing the duties and liabilities of public officials entering into official bonds. Section 2612, Code of 1923; Mobile County v. Williams,
Gen. Acts of 1915, p. 383, touching the liability of deputy sheriffs, as conditions in official bonds require, are the same as the bond of the sheriff, and governed in all respects by the laws of this state relating to official bonds, in so far as the same are applicable. Union Ind. Co. v. Cunningham (Ala.App.)
The general authorities on the subject of liability of sureties on official bonds for illegal arrests, abuse of the right of arrest, or that of the abuse of process, are found in the notes to Lee v. Charmley, 33 L.R.A. (N.S.) 275 et seq. The right of arrest without a warrant for felony comes to us from the common law, as extended by our statute. In 3 Coke's Institutes of the Laws of England, c. 101, p. 220, Sir Edward Coke said:
"But it was no question at the common law, that if a robbery, murder, burglary, or other felony was done, and pursuit made after the offender, who either by resistence or flight could not be apprehended without killing of him by inevitable necessity, the party so pursuing and killing should not forfeit his goods or chattels; for in those cases every man may arrest the felon by a warrant in law. But there is a diversity between a warrant in deed, and a warrant in law, in this, that if a man be indicted of murder, robbery, burglary, or other felony, and the sheriff by virtue of a capias offers to arrest him, and he resists (resisteth) and fly (flye), ut supra, the sheriff may kill him, if otherwise he cannot arrest him, although in truth the party be not guilty, nor any felony done. *476 But in the case of the abovesaid warrant in law, there must be a felony done, and this diversity appears (appeareth) in our books. And so it is, if after arrest for felony the party arrested resists (resisteth) or flys (flyeth), and in pursuit is slain by inevitable necessity, they so killing him forfeit nothing."
This subject has been dealt with by our statute since the Code of 1867, § 3994. In section 3261, Code of 1923, the peace officers named are given the right to make an arrest "under a warrant, or without a warrant," as thereinafter provided. Under section 3262, Code, arrest may be made by an officer under warrant; it prescribes when and how made; he must inform the defendant of his authority, and, if required, must show the warrant, and if thereafter there is refusal of admittance after notice of authority and purpose, may break an "outer or inner door or window of a dwelling house, in order to make the arrest." In section 3263, Code of 1923, it is further provided:
"3263 — (1907-6269) (1896-5211) (1886-4262) (1876-4664) (1867-3994) (1852-445) — Arrest by officer without warrant; when and for what allowed. — An officer may also arrest any person, without warrant, on any day and at any time, (1) for any public offense committed, or a breach of the peace threatened in his presence; or (2) when a felony has been committed, though not in his presence, by the person arrested, or (3) when a felony has been committed, and he has reasonablecause to believe that the person arrested committed it; or (4) when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or (5) on a charge made, upon reasonable cause, that the person arrested has committed a felony."
We supply the italics and numerals for the purpose of ready reference merely. The words "reasonable cause to believe" are applied to the "person arrested (as having) committed" the felony, and as well to when the officer "has reasonable cause to believe that the person arrested has committed a felony," although it may later "appear that a felony has not in fact been committed."
In Orr v. Burleson,
We have learned, from the cases touching the right of arrest without a warrant, that the terms employed in the statute, "reasonable cause to believe" that the person arrested committed the felony is of like import to "probable cause" as a term employed in malicious prosecutions. It is defined to be a state of facts or circumstances as would lead a reasonable man of ordinary caution, acting impartially, reasonably, and without prejudice to conscientiously believe the person accused to be guilty. Parisian Co. v. Williams,
From such analogy the expression in section 3263 of the Code, "reasonable cause to believe," touching the right to arrest without warrant, meant such a state of facts in the mind of the actor or officer making the arrest as would lead a man of ordinary prudence to believe (induced to that belief on reasonable grounds) that a felony has been committed, and that the person arrested or to be arrested is guilty thereof. Such being the fact, or the state of mind of a bona fide well-founded belief of the felony committed, and that the party arrested is guilty, a lawful arrest of such person believed to be guilty may be made without a warrant. Tolleson v. Jackson,
The extent to which the officer or actor may go in the arrest without a warrant, and the force that may be employed in such arrest or apprehension of a resisting or fleeing felon, or of one so arrested upon probable cause, upon reasonable ground believed (Tolleson v. Jackson, supra) by the officer, as being guilty of committing felony, has been considered by the courts. And it is generally established:
(1) That the reasonableness of the force or means employed in such arrest is a question of fact for each case, to be adjudged by the conduct of an ordinarily careful and prudent man under like and existing circumstances; the reasonableness of the grounds for belief and inducing the belief that the party arrested is guilty of a felony, upon which the officer or de facto officer acted in the premises, and the necessity or excessiveness of the act of such person or force or means employed in making or attempting to arrest in felony, are ordinarily *477
facts for the careful consideration of a jury. Patterson v. State,
(2) In arresting, or attempting to arrest, for felony without a warrant, such peace office or private person may, if it isnecessary (not merely reasonably necessary), kill the fleeing or resisting felon, provided he cannot be otherwise taken. It is the duty of the peace officer to effect such arrest (2 R. C. L. 446 et seq.; 8 L.R.A. 530, note) and to this end may reasonably become the aggressor as to such felon, and use such force or means as may be required under the circumstances to overcome the resistance, not to employ unnecessary or improper violence as means, or to use force or violence or means disproportionate to the nature and extent of the resistance offered. In this the officer or actor is to be guided by the reasonable appearances of the time and circumstances of making the arrest and the facts and nature of the particular case. Com. v. Phelps,
(3) When one is killed or injured under circumstances which may amount to a legal justification for that act by the officer or person arresting the felon, or such person as may be arrested within the purview and justification of the statutes (sections 3262, 3263, Code), and there is legal action founded thereon against the officer or arresting actor, the burden of going forward with the evidence is upon the defendant actor, to the extent of showing his authority and probable cause in the premises, and such as that it overcame the prima facie presumption for the protection of human life and to guard against physical injury which may arise from the act of homicide or maiming unlawfully. 2 R. C. L. 472, § 29. Such is the rule, unless the circumstances of the killing or physical injury by the officer rebut the presumption. See State v. Dierberger,
And after a careful examination of our decisions, it is the opinion of the writer that under the statutes (section 3263, Code of 1923; section 6269, Code of 1907; section 5211, Code of 1896) the authorities have made no distinction between felonies as they were classified under the common law and felonies made so by virtue of our statute, as affecting the officer's right of arrest without a warrant. In Orr v. Burleson,
This record does not present a case of injury in arresting without warrant on suspicion of a felony. It is when the plaintiff in this civil action for his damage came to his injury while the statutory felony was being committed in the presence of the officer — the still was in operation — and plaintiff was the only person seen by the officers thereat, or seen by them to be fleeing therefrom, and, when he was sought to be arrested, he did not stop when warned by shots, was then fired upon, and injured. He immediately admitted his operation of the still, so the state's officers testified, and upbraided the officers for firing upon him as he ran. As to this the defendant denied his participation in operation or ownership of the still; admitted there was such a still being operated, but denied that he set it in operation; that as he ran he received his injury, about 50 or 75 yards from the still; that there was no one running with him when he was shot; that he saw other parties run before him, and as plaintiff ran was shot by the officer, after several preliminary warnings or ineffectual shots were made.
In the state of the record as to reasonable and conflicting tendencies of evidence (McMillan v. Aiken,
There was no insistence of an involuntary confession by plaintiff as to his ownership or participation in the operation of the still. The writer is therefore of opinion that the cross-examination of Clint Cole, as to how many officers were standing around with guns when the witness heard the plaintiff make declarations or statements against interest detailed by Cole, was beside the issues and constituted reversible error. Such a cross-examination tended to inflame the jury against the defendant surety company being sued on Jones' official bond, and against the witness, and tended to evoke sympathy for the plaintiff. McGill v. Varin,
In malicious prosecution the general rule is that thefinding of an indictment by a grand jury against one charged with crime is prima facie evidence of the existence of probable cause, and that the acquittal of a defendant upon the trial does not tend to show a want of probable cause for believing him guilty of the offense charged when the arrest is made or prosecution initiated. Such differing results are rested upon the fact that an acquittal is based upon any reasonable doubt of the defendant's guilt on all the evidence. Standard Oil Co. v. Davis,
The same prima facie rule has been applied in this court, without distinction, in malicious prosecution (Ewing v. Sanford,
The evidence of Brandon, and the other evidence shedding light upon probable cause of felony causing the arrest of Webster, made relevant the indictment for the felony committed in operating the still, as prima facie probative and corroborative of the other evidence inducing the reasonable belief in the mind of the officer, Jones, that Webster had been caught in the act of committing the felony and was fleeing from the scene of his crime when he was injured. The action of the trial court in excluding the evidence of Brandon, and that of the indictment of the grand jury for the felony, was error to reverse, in the opinion of the writer; the other Justices believe such evidence was properly excluded in the instant suit.
When the oral charge is considered as a whole, and as related to the portion thereof to which exception was taken, there was no error of which the defendant may complain. If there was any criticism of the charge, it was that it was too favorable to defendant in the use of the word "reasonably" as a qualification of the word "necessary." The rule in this behalf is stated in Richards v. Burgin,
"* * * 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 flight. 1 East's C. L. 300; 4 Black. Co. 180; 2 Bishop on Cr. Law, § 648; 3 Cyc. 891; 2 Am. Eng. Ency. Law, 848; Story's Case,
In Suell v. Derricott,
"As to the right to kill in making arrests or to prevent an escape, the rule may be stated as follows: 'Generally when one refuses to submit to arrest after he has been touched by the officer, or endeavors to break away after the arrest is effected, he may be lawfully killed, provided this extreme measure is necessary. In cases of felony the killing is justifiable before an actual arrest is made, where in no other way the escaping felon can be taken. In cases of felony, if the felon flee from justice, it is the duty of every man to use his best endeavor to prevent an escape, and if in the pursuit the felon be killed, where he cannot be otherwise overtaken, the homicide is justifiable, but if he may be taken in any case without such severity, it is at least manslaughter in him who kills him, and the jury ought to inquire whether it was done of necessity or not.' "
And in Patterson v. State,
"If, in the performance of this public duty, it reasonably appeared to be necessary to inflict the blow to overcome Stephens, disarm him, and thus place it out of his power to injure or kill some other person; then the law, which only voices reason, authorized the officer to employ such force as was necessary to accomplish the end, even if in doing so he struck the defendant. In other words, if to a reasonable mind it appeared necessary to use violence in order to accomplish the object with safety to the arresting officer, then the officer violated no law in using the baton. On the other hand, if to a reasonable mind it did not appear necessary to the officer's discharge of this public duty with safety to himself, or some other person who might be aiding him, that he should strike Stephens, then the blow he struck was unauthorized, and he was guilty of an assault and battery. Whether, under these rules, the officer was justified in striking Stephens, was a question for the jury."
There was no error in the oral charge to which exception was taken, and of which defendant can complain.
In the refusal of defendant's charge No. 37, assigned as error, is sought to be presented to the court the issue of probable cause, if the facts are undisputed facts. It is true that the still was in operation and located in a secluded section of the county, on a branch in or near the bend of the river. The plaintiff was the only person seen near thereto, and as he fled down a hollow and through the woods, from the direction of the still, was shot within 50 or 75 yards therefrom. He had been seen by Cole going away alone from the still in operation. We are not informed that Jones saw him so close to the still. The plaintiff thus described the locus in quo:
"There were hills on both sides of the hollow. The hollow is very narrow, not 50 yards wide. The still was located way back upon the hill about a mile from the river and about a mile from the public highway, in the woods. When I was shot I was about 50 or 75 yards from where they cut up the still. * * *.
"I was running; I was not running till he fired the first shot; when he come running off of there I started to run; he come running from that still. There was a still there. * * *
"The still was up on the hill from the hollow and I was about 50 or 75 yards from it and I was running after the first shot. There was no one running with me, a fellow had done run down there by me but I don't know who they were; they might have been officers, I don't know; I did not recognize any of them afterwards. Two or three run by me when I was walking fast; they were running over the hill there in the same direction I started to go after they started shooting. Jones was not coming from the hollow, he was coming from the opposite direction and I run toward the hollow. I run about 15 feet when I was shot. I left the Glover boys down there at the river about 1 or 1:15; I had started to my brother's; I had no fish with me."
In the case of Molton Realty Co. v. Murchison,
"What facts and whether particular facts amount to probable cause is a question of law, but what facts and whether particular facts exist, in a case in which the evidence as to the facts or any necessary particular fact is in dispute, is a question for the jury."
This is the stated rule in Molton Realty Co. v. Murchison, supra, on the authority of Ewing v. Sanford,
Mr. Justice Sayre was the author of the opinion in the Murchison Case and that of Piggly-Wiggly Co. v. Rickles,
Refused charge 27 was the statement of the burden of proof being upon plaintiff to establish the material allegations of the count that contained, among other averments, that the assault and battery on plaintiff was committed by Jones, a deputy sheriff, shooting him unlawfully. The charge, whether good or bad, was fully and fairly covered by the oral charge, and where the expression of the charge, shooting by a deputy sheriff "was unlawful," was fully explained to the jury.
Charge 32 was justified in its refusal by the use of the word "reasonably" (Richards v. Burgin,
Refused charge 29 did not fail to hypothesize the finding of fact upon the jury's belief of the evidence. The language employed being, "If the plaintiff was so engaged," following the statement:
"I charge you that it is your duty under your oaths to look to all the facts and circumstances in evidence in this case in determining whether or not the plaintiff at the time and place in evidence was engaged in the manufacture of whisky, either by himself or with others; I further charge you that such manufacture is prohibited by the law, both of the state and the United States, and is a felony in Alabama."
In the opinion of the writer, it was in accord with the rule of conduct declared of the officer and actor in Richards v. Burgin, supra, in the use of the words "available means" to prevent his escape or effect his capture; was predicated upon belief of the evidence under all the facts and circumstances thereof; and, when so considered, the expression, "no otheravailable means" to be employed by the officers than were employed (shooting the fleeing felon in the leg) to effectuate his arrest, or to prevent his effort to escape arrest, was according to the rule that the "attendant circumstances must be such as would justify a jury in the conclusion that they [the means employed by the actor or officer] were necessary in order to prevent the felon from escaping." If the charge was proper (which is not decided), its refusal was rendered innocuous by reason of the instructions given in the oral charge and given charge 10, sufficiently instructing the jury of the matters contained in refused charge 29.
Refused charge 21 was covered by given charges 20 and 22. Refused charge 14 was covered in given charge 15.
We have indicated that it was for the jury to say, from all the evidence, whether or not the officer used more or different force and agency than was necessary to arrest plaintiff, in the absence of the diagrams used on the trial. It is not indicated that plaintiff was running to or toward some of the officers, nor that any officer made another effort to overtake the plaintiff, nor that Jones commanded the plaintiff to halt before he fired the shot causing injury. There was no error in refusing affirmative instructions requested, and there was no error in overruling the motion for a new trial.
The judgment of the circuit court is affirmed.
ANDERSON, C. J., and SAYRE, GARDNER, BOULDIN, and FOSTER, JJ., concur.
Concurrence Opinion
I concur in the affirmance of the judgment of the circuit court, though I am not in agreement with so much of the opinion as holds that an officer attempting to make an arrest of one not resisting, but fleeing, may shoot to kill or maim on mere well-grounded suspicion that the person so fleeing is a felon. The law which gives an officer the right to kill an escaping felon limits the right to cases in which the officer has a warrant, or actually knows the person whom he is seeking to arrest is a felon, at the time he fires. 2 R. C. L. p. 472, § 29; West v. State (Ala.App.)
