Allison v. State, 47019

• Decision Date: 12 March 1973
• Docket Number: No. 47019,47019
• Citation: 274 So.2d 678
• Parties: Lenzie ALLISON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 678

274 So.2d 678

Lenzie ALLISON v. STATE of Mississippi.

No. 47019.

Supreme Court of Mississippi.

March 12, 1973.

Jerry T. Johnston, Brandon, for appellant.

A. F. Summer, Atty. Gen. by J. B. Garretty, Sp. Asst. Atty. Gen., Jackson, for appellee.

ON PETITION FOR REHEARING

ROBERTSON, Justice:

The Petition for Rehearing is sustained, and the unpublished opinion heretofore rendered is withdrawn, and the following opinion substituted as the opinion of the Court.

Appellant, Lenzie Allison, was indicted, tried and convicted in the Circuit Court of Rankin County of assault and battery with intent to kill W. L. Bailey. Allison, with a 22 caliber rifle, shot Bailey in his left arm just above the wrist. He was sentenced to serve a term of 10 years in the Mississippi State Penitentiary.

Allison had been convicted several times of violating the prohibition laws by selling both bootleg and bonded whiskey in Rankin County, a dry county. On December 21, 1971, Allison was seen entering Yeagley's Package Store in Jackson, Hinds County, Mississippi, by a former employee of the Alcoholic Beverage Control Division. He entered empty-handed but came out of the package store with a full brown paper bag. This college student, who had worked for ABCD the summer before, telephoned this information to ABCD. A roadblock was set up by Bailey and Boyles, two agents of the ABCD, on a public gravel road a short distance from Allison's home and grocery store in Rankin County.

The evidence was conflicting as to what happened thereafter. Allison claimed that he was acting in self-defense and his version was exactly opposite that of both Bailey and Boyles. The testimony of Bailey and Boyles was that they flagged down Allison as he approached in his car; that the portable blue light on the dashboard of their car was flashing; that Allison stopped his car abruptly and came out cursing and shouting obscenities at the two ABC officers. Bailey shouted: 'Allison, you know we're ABC people, stop right there.' Allison reached back into his car and came out with a 22 caliber automatic rifle.

The testimony of the agents was that Allison fired one shot at Bailey, who ran back to his car; Boyles ran for a mound of dirt on the side of the road. As Bailey reached his car, Allison shot again, hitting the windshield on the driver's side. Allison fired twice more into Bailey's car before Bailey returned his fire. In the meantime Allison fired at Boyles and pinned him down behind the mound of dirt.

As Bailey steadied his pistol with his left arm exposed on the left side of his car and fired through the space between the door and windshield, Allison shot him in the left arm above the wrist. Finally, after Allison had fired 16 times and emptied his rifle, he fled into the woods. All of this took place about 3:30 P.M. and Allison was not seen again until he turned himself in to the Rankin County Sheriff about 7:30 P.M.

Allison testified that the agents blocked the road, told him twice to get out of his car and when he came out with his rifle they started shooting. Allison said he ran behind his car and worked on his rifle which had jammed. He got his rifle fixed and when the agents started shooting again he started shooting. When he figured the agents were reloading, he ran into the woods.

The appellant contends that eight errors were committed by the trial court. We will discuss only those errors assigned which we think merit discussion.

The appellant contends that the indictment should have been quashed and the evidence suppressed because it was based on an illegal arrest. A careful review of the evidence has convinced us that there was probable cause for the ABC agents to stop the appellant and to search his car.

Section 10265-03, Mississippi Code of 1942 Annotated (Supp.1972) provides:

'The officers, agents and representatives of the State Tax Commission and the Alcoholic Beverage Control Division thereof are authorized and directed to strictly enforce the prohibition laws throughout the State, except in those counties which have voted for the legalized sale of intoxicating liquor.'

Rankin County is a dry county; a majority of the residents thereof has consistently voted against the legalized sale of intoxicating liquor. Appellant had been repeatedly convicted of violating the prohibition laws by selling both bootleg and bonded whiskey in Rankin County. The ABC Division had been informed by a trusted former employee, whom they knew to be reliable and credible, that he had personally seen the appellant enter a liquor package store empty-handed and had personally seen appellant depart therefrom with a brown bag full of purchases. Inasmuch as a liquor package store can sell only liquor, it was certainly reasonable and logical to assume that the brown bag contained alcoholic beverages. The agents did not attempt to stop him in Hinds County, which is wet, but attempted to stop him and to check his purchases on a public gravel road in Rankin County, which is dry. We think that there was probable cause for the agents' actions. See State v. Thrash, 257 So.2d 523 (Miss.1972).

But assuming arguendo that the agents' actions were not based on probable cause and were illegal, this still would not justify appellant in shooting at, and wounding, one of the agents with a deadly weapon.

This Court ruled in Wilkinson v. State, 143 Miss. 324, 108 So. 711 (1926):

'The courts generally hold that the right to resist an unlawful arrest is a phase of the right of self-defense; that as in other cases of self-defense the person sought to be arrested is justified in taking life only when he has reasonable ground to apprehend that he is in imminent danger of death or great bodily harm; that he is not justified in killing merely for the purpose of resisting an unlawful arrest or other restraint upon his liberty, where the only injury which could be reasonably apprehended is an unlawful detention for a short time or other injury short of death or great bodily harm; that the officer attempting to make an unlawful arrest is simply the aggressor in the difficulty, and stands in the shoes of any other aggressor in a like difficulty. . . . We prefer to align ourselves with the majority rule. We hold, therefore, that an officer attempting to make an unlawful arrest is not cut off from the right of self-defense; that he is only the aggressor in the difficulty and is in no worse attitude than any other aggressor under like facts and circumstances.' 143 Miss. at 335-336, 108 So. at 712-713.

It was a question for the jury to decide whether or not the appellant, under the facts of this case, used excessive force.

In his second assignment of error appellant contends that the Court erred in granting the following instruction:

'The Court instructs the jury for the State that malice aforethought mentioned in the indictment may be assumed from the unlawful and deliberate use of a deadly weapon.'

This instruction is on an abstract principle of law; no mention is made of the specific facts of this case. We said in Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963):

'(I)nstructions in criminal cases embodying abstract principles of law should not be given to the jury.' 246...