Browning v. State

• Decision Date: 16 March 1943
• Docket Number: 1 Div. 413.
• Citation: 13 So.2d 54,31 Ala.App. 137
• Parties: BROWNING v. STATE.
• Court: Alabama Court of Appeals

13 So.2d 54

31 Ala.App. 137

BROWNING v. STATE.

1 Div. 413.

Alabama Court of Appeals

March 16, 1943

Rehearing Denied April 13, 1943.

Bart B. Chamberlain, Jr., of Mobile, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Walter W. Flowers, Asst. Atty. Gen., for the State.

PER CURIAM.

This appellant was indicted for the specific offense of "reckless driving," and none other. The evidence is clear that the reckless driving, if done, was after the State's witnesses attempted an unlawful arrest upon him.

As to this offense charged in the indictment and to which the trial of this case should have been confined, there is no controversy or dispute about the fact the defendant had committed no crime or offense at the time of his attempted arrest by the several officers. Nor is there any dispute or conflict as to the unlawful and unparalleled conduct and actions of said officers in the attempted arrest. Said officers themselves testified they knew the defendant lived on said road out of Mobile and would return to his home. They formulated an ambush, and laid in wait for his approach. Further down the road they barricaded the highway by placing two police cars across it in order to entrap him, and as he approached in his car driving, as stated by the officers in a lawful manner, about 30 miles an hour the ambushers sounded their siren on the police car and took out after him with siren blasting. As to this the principal witness for the State, one Frank Schottgen, testified, in substance, that he and one other officer laid in wait for a time. They had been lying in wait for him about fifteen minutes when he drove by that he (appellant) at that time was driving about 30 miles an hour. "None of us officers had seen him violate any law before the blockade. * * * We had no warrant for his arrest. * * * I turned on the siren before I started out after him, that was our pre-arranged signal for the boys a little further down. He was maintaining the speed of thirty to thirty-five miles an hour until he got to the place where the blockade was, I heard the shot, but I did not see the shot fired." Officer Gibney testified: "I participated in this arrest and chase down Cedar Point Road. I was just South of the blockade. I was not in the bushes there, I was standing alongside of the road; I was standing there to hold traffic back when he came down there and we figured on stopping him. I think there were two cars there at the time. We shot at him just south of the blockade. I was standing out there in the road when I shot at him. I was standing where he could see me. I motioned for him to stop but he did not stop. The siren on the Lieutenant's car was blowing, too."

Witness Gibney also testified: "I had just come on the Police Department at that time. I didn't consider myself an an expert at nothing. The gun was not a thirty-eight calibre; it was not a thirty-two; it was a forty-four. I had practiced shooting a forty-four a good while before that time."

There was no material conflict in the evidence in this case. All the testimony adduced upon the trial shows conclusively that the defendant was driving his car in a lawful manner in every way and continued to so drive it until and when he ran into the ambush and barricade, above described, whereupon then and then only he accelerated his speed in order (so he claims) to escape from the blowing sirens and the unlawful shots being fired at him from the, to say charitably, over-zealous officers in pursuit of him.

The defendant interposes in justification of his driving at an excessive rate of speed after he was fired upon as aforesaid that he was fleeing an unlawful attack made and being made upon him and that he had a right to do so to save himself from serious injury. Viz, that the act complained of in the indictment was without free will upon his part but was the result of compulsion and duress because of the State's witnesses who sought to ambush him and unlawfully fire upon him. The authorities seem to approve such a defense if satisfactorily proven.

In Arp v. State, 97 Ala. 5, 12 So. 301, 302, 19 L.R.A 357, 38 Am.St.Rep. 137, it was held: (1) "The person committing the crime must be a free agent, and not subject to actual force at the time the act is done; Thus if A by force take the arm of B, in which is a weapon, and therewith kill C, A is guilty of murder, but not B." (2) Further from the Arp case, is the proposition: "No matter what may be the shape compulsion takes, if it affects the person, and be yielded to bona fide, it is a legitimate defense." (3) "That always an act done from compulsion or necessity is not a crime. To this proposition the law knows no exception. Whatever it is necessary for a man to do to save his life is in general to be considered as compelled." (Italics supplied).

Upon the question of self-preservation, even a dumb animal is thus imbued. A pertinent quotation is found in Bartlett's Familiar Quotations, p. 764, as follows: "They say that the first inclination which an animal has is to protect itself."

In 13 R.C.L. § 8, p. 708, it is said: "It has been declared by statute that 'a person forced by threats or actual violence to do an act is not liable to punishment for same.' "

In 15 American Jurisprudence, § 318, p. 16: "It seems that the law will excuse a person when acting under coercion or compulsion, for committing most, if not all, crimes, except taking the life of an innocent...