Levens v. State

• Decision Date: 09 January 1912
• Citation: 57 So. 497,3 Ala.App. 45
• Parties: LEVENS v. STATE.
• Court: Alabama Court of Appeals

57 So. 497

3 Ala.App. 45

LEVENS v. STATE.

Court of Appeals of Alabama

January 9, 1912

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Jake Levens was convicted of assault and battery, and he appeals. Reversed and remanded.

W. E. Fort, W. T. L. Cofer, M. F. Parker, and E C. Burke, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for assault with intent to murder, was tried by a jury, by their verdict found guilty of assault and battery, and from the judgment of the court pronounced on that verdict appeals.

It appears that a writ of attachment was sued out by some one against the estate of the defendant and was placed in the hands of one Bryson, a deputy sheriff, to be levied upon property of the defendant. The writ of attachment was not introduced in evidence, and we do not know by what officer or for the collection of what sum it was issued, or before what court it was made returnable. It was treated on the trial in the court below as a valid writ authorizing a levy upon property of the defendant, and we will so treat it.

The attempt by the above-named officer and his assistants to levy the above writ upon certain flour on the porch of the residence of the defendant was resisted by the defendant; the officers, or some of them, attempted to arrest the defendant on that account; and the difficulty in which the defendant made the assault for which this indictment was found was thereby precipitated. The writ had previously been, without objection on the part of the defendant, levied upon a certain lot of the defendant in the town of Cullman and also upon the contents of his store, barn, and blacksmith shop. The evidence tends to show that the defendant had on his porch certainly one, and possibly two, barrels of flour, and that he also had some flour in his dining room or kitchen. The evidence is in some confusion as to the exact amount of all of this flour, but the defendant's testimony tends to show that there was not on his porch and in his dining room or kitchen exceeding two barrels. The evidence without dispute shows that, when the officers came to seize the flour on the porch, the defendant told them that they had already levied on "fiftyfold" more than was necessary to satisfy the attachment, and that he did not intend to allow them to take the "last bite of bread from his family"; that one of the officers then attempted to seize the defendant, saying that he was going to arrest him; that the defendant thereupon possessed himself of a gun; and that immediately afterwards several shots were fired, three by the defendant, and probably six or seven by at least two of the officers. The evidence without dispute shows that at least two of the officers were armed when they went to the defendant's porch to levy on the flour; but the evidence is in sharp dispute as to whether the defendant or some of the officers fired the first shot, and there was also a sharp conflict in the evidence as to whether the defendant was in his house or retreating from it when he first fired. The evidence without dispute shows that the defendant left his home during the difficulty, and that he did not return until the next afternoon. The difficulty occurred about or after dark, and the defendant had a wife and six children all of whom were at home when the shooting took place.

"In determining the amount of property to be levied on to satisfy an execution, the officer is left to exercise his own judgment, free from constraint or control of either plaintiff or defendant; but it is his duty to take property sufficient to satisfy the execution, allowing for reasonable and probable depreciation of the property at a forced sale, but he should not make the levy so unreasonable and excessive as to bear on its face the appearance of oppression and unnecessary rigor." Governor v. Powell, 9 Ala 83; Griffin v. Ganaway, 8 Ala. 625; Thompson v. Jones, 84 Ala. 279, 4 So. 169; 17 Cyc. 1112, § 8.

An officer making an excessive levy is liable to the defendant in execution for the damages suffered by him by reason thereof in an action of trespass on the case. Thompson v. Jones, 84 Ala. 279, 4 So. 169.

1. One of the important questions in this case was whether the defendant was free from fault in bringing on the difficulty which resulted in the assault for which he was indicted. The difficulty occurred, confessedly, because the officers, or some of them, attempted to arrest the defendant because he would not permit them to levy on the flour on his porch. If, before they undertook to levy upon the flour, the officers had already levied upon largely more than enough property to satisfy the writ, the defendant should have been allowed to show this by evidence. This evidence, if such existed, would have aided the jury in determining the quo animo of the officers in attempting to make the additional levy and in attempting to arrest or in threatening to arrest the defendant. In other words, it would have shed some light on the question as to whether the officers were acting in...