Boswell v. State, 1 Div. 473.

• Decision Date: 30 June 1944
• Docket Number: 1 Div. 473.
• Citation: 19 So.2d 94,31 Ala.App. 518
• Parties: BOSWELL v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 94

31 Ala.App. 518

BOSWELL v. STATE.

1 Div. 473.

Alabama Court of Appeals

June 30, 1944

Rehearing Denied Aug. 22, 1944.

Appeal from Circuit Court, Baldwin County; F.W. Hare, Judge.

Hybart & Chason, of Bay Minette, and Gordon & Gordon, of Mobile, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

The appellant was a police officer of the City of Mobile engaged in the collection of tolls required by law to be collected from those who used the tunnel under the river. One entrance to the tunnel was in Mobile County near the Baldwin County line.

The appellant claimed that the deceased violated an ordinance of the City of Mobile regulating and fixing tolls and that he arrested the deceased, who temporarily submitted to arrest and then escaped by putting the automobile in which he was riding in gear and driving off before the appellant could prevent him from doing so. Whereupon appellant arranged with another toll taker to relieve him and got in his car and started in pursuit of the deceased and overtook him in Baldwin County where the killing occurred.

In an attempt to justify his pursuit of the deceased, appellant undertook to show that he was instructed that it was his duty to go into Baldwin County under the circumstances stated. The State objected and in sustaining the objection the trial court announced:

"Well I will hold he had no right to go into Baldwin County, any how as a peace officer. I am going to hold that under the facts in this case it appears to be the contention of the defendant that the defendant was pursuing the deceased as an officer for an alleged offense committed in his presence and that when he got at least to the County line his authority as an officer ceased, and I can't see by any stretch of the imagination that when he reached the County line there could be any hocus pocus magic change in the capacity in which he pursued him, and invested him, as a private citizen, with more authority than he had as an officer; and I will give you an exception."

In the court's oral charge the ruling was elaborated in this language:

"Now, I charge you further, gentlemen, that under the facts in this case, the defendant had no right to pursue the deceased in Baldwin County, and that, either as an officer or as a private citizen, his authority ceased at the Baldwin County, line, and that he had no right to pursue him further in this County and effect his arrest for the supposed or alleged offense against the ordinance of the City of Mobile."

The court also refused some written charges requested by appellant to the effect...