Lowery v. State
| Decision Date | 02 December 1958 |
| Docket Number | 7 Div. 486 |
| Citation | 39 Ala.App. 659,107 So.2d 366 |
| Parties | C. D. LOWERY v. STATE. |
| Court | Alabama Court of Appeals |
Scott, Dawson & Scott, Fort Payne, for appellant.
John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.
Appellant was convicted of the offense of assault and battery.
The State's evidence tended to show that the Sheriff, W. R. Evans, together with Mr. Collins, a highway patrolman, and a deputy sheriff, Jack Webster, went to Geraldine, in DeKalb County, the night of August 4, 1956, for the purpose of breaking up a drag race reportedly taking place in the community. They arrived near midnight and found a large group of people and numerous cars on the streets. As the crowd began to slowly disperse at the officers' request, the defendant and two companions came up and stopped in front of a cafe. The Sheriff went into the cafe and asked the manager to quiet the juke box. After the cafe was closed and everybody had left except the defendant and his companions, the Sheriff spoke to them as follows: Defendant replied: 'I am free, white and twenty-one and a citizen of this county and I will do as I God damn please.' Whereupon the Sheriff told him he was under arrest. At this point the defendant struck the Sheriff on the back of his neck and cut it so that it bled considerably. The Sheriff hit defendant back several times using a blackjack and, with Patrolman Collins' help, placed defendant in the patrol car, from which defendant immediately escaped. The two officers with the Sheriff admonished him not to shoot as he ran after the defendant. Mr. Collins testified defendant hit at the Sheriff before the Sheriff struck him with the blackjack, and Mr. Webster stated the defendant grabbed the Sheriff first after which Mr. Evans struck him with the blackjack. The officers testified there were women close at hand when the defendant was using profanity.
The defendant testified he had helped his father run the motion picture theatre at Geraldine on the evening in question and he and another man who also worked at the show had gone to the Post Office at his father's request to check a window reported to have been broken. Afterwards they went into a little cafe and had a soft drink and then went outside and sat down where they were approached by the Sheriff and the difficulty occurred. The first words spoken by the Sheriff were: 'By God, I told you to go home fifteen minutes ago.' Defendant's companion replied, The Sheriff answered, The defendant stated: 'By God, I am free, white and over twenty-one and there is no curfew law in Alabama.' The Sheriff threatened to arrest defendant on a charge of vagrancy, and defendant said, 'I am not going,' whereupon the Sheriff hit him once and then the patrolman caught one arm and the Sheriff the other and the Sheriff hit him several times with the blackjack. The defendant stated he tried to catch the blackjack, but he made no effort to hit the Sheriff and never did hit him. Appellant insists he was unlawfully arrested and that he had a legal right to resist the arrest.
The State concedes that if accused was under unlawful arrest at the time he is charged with having committed the offense he was entitled to resist illegal detention. However, the State contends the testimony shows defendant used profanity in a public place while women were nearby, and that the Sheriff was authorized to make the arrest without a warrant for an offense committed in his presence.
The Sheriff stated that at the time the defendant used the language testified to that several women were close enough to have heard it.
Title 14, Section 11, Code 1940, makes it unlawful to use obscene, abusive, insulting, and profane language in the presence or hearing of a girl or women.
Under Section 154, Title 15, Code, an officer may arrest a person, without a warrant for an offense committed in his presence.
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Williams v. State
...23 (1947); Singley v. State, 256 Ala. 56, 53 So.2d 729 (1951); Foster v. State, 37 Ala.App. 213, 66 So.2d 204 (1953); Lowery v. State, 39 Ala.App. 659, 107 So.2d 366 (1958); Chavers v. State, 361 So.2d 1096 (Ala.Cr.App.1977). Although these cases stand for the proposition that the trial cou......
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