Johnson v. State

• Citation: 19 Ala.App. 141,95 So. 583
• Decision Date: 06 March 1923
• Docket Number: 1 Div. 502.
• Parties: JOHNSON v. STATE.
• Court: Alabama Court of Appeals

95 So. 583

19 Ala.App. 141

JOHNSON v. STATE.

1 Div. 502.

Court of Appeals of Alabama

March 6, 1923

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Willis Johnson was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Hybart & Hare and J. D. Ratcliffe, all of Monroeville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant was indicted for murder in the first degree, was tried, and convicted for the offense of murder in the second degree, and appeals.

We gather from the record and briefs of counsel that the insistence of the state was to the effect that the deceased one Hightower, had been specially deputized by the sheriff to arrest the defendant on a charge of felony, alleged to have been committed in Clarke county, and that, while attempting to make said arrest, he was unlawfully shot and killed by this defendant.

The defendant admitted the killing of Hightower by him, but contended that he did so in order to save his own life, and that his action in so doing was justifiable under the law.

Numerous witnesses were examined upon the trial of this case, and the testimony contained in the transcript is more or less voluminous. But, notwithstanding this, there is an unusual lack of conflict in all the testimony.

It appears that the defendant and his wife were present at the cane mill and shop of Claude Johnson, an uncle of defendant and together with several others, all of whom appear to have been examined as witnesses in this case, had been present about 25 minutes before the deceased was seen coming down the road, towards them, with an automatic shotgun. There is some testimony that some one present remarked, "Here comes Gus Hightower," but it does not appear that this remark was in the hearing of the defendant. As Hightower, the deceased, approached, the defendant and his wife passed around to the opposite side of the shop and were leaving the premises. Hightower stopped for a moment, spoke to state witness McArthur and shook hands with Conrad Johnson, and then followed after defendant and his wife to within 10 or 15 feet of them-these three being then some 30 or 40 feet removed from the shop. All the witnesses, both for the state and the defendant, agree that the deceased fired two shots at the defendant with an automatic shotgun before defendant fired in return. None of the witnesses heard deceased say anything to defendant before firing at him, or saw defendant make any hostile demonstration towards deceased before being fired upon by deceased. The witnesses for the defense swear positively that no words passed between deceased and defendant, and none of the state's witnesses contradict this testimony; it is without dispute that deceased approached defendant rapidly from the rear and fired upon him as he (defendant) turned in the path to face the deceased, and while the defendant was holding up his hands indicating surrender; that defendant was seriously wounded in the arm from this shot, he and his wife being knocked to the ground by the force of the first shot; that while defendant was on the ground, the deceased shot at him a second time at close range, but that defendant was saved from receiving this load by the action of his wife in knocking up the barrel of the gun; that the defendant did not fire until after this second shot from the deceased; that, after defendant had been shot down by deceased and again fired upon by him, the defendant managed to secure his pistol from his pocket and before regaining his feet fired upon Hightower, killing him. This testimony is without material dispute, and the physical facts of the wound, as testified to by state witness Dr. J. C. Christian, tends to corroborate the statement that defendant fired while in the position indicated. This witness, testifying among other things, said:

"The wound in his body ranged upward, the bullet-it entered on his left side in his short ribs, ranged upward, diagonally through his body, and I felt this bullet under his right shoulder blade. This was a fatal wound."

As stated, the theory of the state was that the deceased had been specially deputized by the sheriff to arrest the defendant upon a felony charge alleged to have been committed in an adjoining county, and that, in attempting to so make the arrest he was killed by defendant. There was no pretense or insistence that Hightower, the deceased, had in his possession, at the time of the killing, a warrant, or other process, for the arrest of defendant, but the state insisted that he was authorized so to do under the terms of the statute. Section 6269 of the Code 1907. This section of the Code does authorize an officer to make an arrest without a warrant in the instances and under the circumstances therein enumerated; but in doing so he must comply with and conform to the law which gives him this authority, and the law requires that when he arrests a person without a warrant the officer must inform the person arrested of his authority and the cause of the arrest (Code 1907, § 6270), otherwise the person being arrested is under no duty to submit ( Tarwarter v. State, 16 Ala. App. 140, 75 So. 816).

It is manifest that these statutes were enacted with the dual purpose of securing the execution of and submission to legal process and at the same time to protect the citizen from unlawful interference with his personal liberty. In this connection the Supreme Court of this state, in the case of Brown v. State, 109 Ala. 70, 91, 20 So. 103, 111, said:

"It is not the duty of a citizen to submit to any other than a lawful arrest. It has been said, the duty "is found in the law side by side with the right of resistance to an unlawful one; and it is quite as important that no one should be unlawfully taken as that every one lawfully accused should be made to answer.' *** It is not intended that he shall yield his person and liberty to the dominion of even a known public officer, certainly not to one unknown, upon his mere, demand, who gives no information of his authority. If this were not true, no man would be safe from invasions of his personal liberty, and unlawful arrests would be made effectual."

Here, the case is much stronger for the defendant than the case quoted from because there is no pretense of any demand, or declaration of authority by the alleged officer at the time of the difficulty; nor is there any testimony that defendant knew deceased to be an officer, neither is there anything in the record from which this fact could be inferred. The only testimony bearing upon this question is that of the defendant himself, who stated positively: "I had not heard anybody say 'yonder comes Gus Hightower' that morning. I did not know that Gus Hightower was a deputy sheriff. I had never heard of him being a deputy sheriff.

The Brown Case, supra, also holds that there is no presumption of law that the defendant knew of the appointment of deceased as special deputy sheriff, and was consequently chargeable with notice that his presence was for the exercise of official authority. It appears from the testimony of Sheriff Russell that a year or two before the killing of Hightower, he (the sheriff), together with Hightower and another, made search for the defendant in the neighborhood where many of the kinspeople of the defendant lived. But there is nothing to show that this search, remote at the time of the difficulty, was ever brought to the knowledge of defendant or that he knew anything whatever relative to the search made for him, and we do not think under these conditions that these searches had any legitimate tendency to charge the defendant with notice of any official character of deceased, especially in the total absence of any testimony showing or tending to show that defendant knew of these searches and the purposes thereof.

The defendant insists that deceased was not in fact an officer; that his removal from the state for practically a year after his appointment as special deputy, being at the time under indictment himself, rendered his appointment functus officio; and cites in support of this contention Chisholm v. Coleman, 43 Ala. 204, 94 Am. Dec. 677; State v. Jones, 19 Ind. 356, 81 Am. Dec. 403; 22 R. C. L. 560, and 29 Cyc. 1404. Under the view we take of this case, however, a decision of this question is unnecessary.

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