Richards v. Burgin

• Decision Date: 15 April 1909
• Citation: 49 So. 294,159 Ala. 282
• Parties: RICHARDS v. BURGIN.
• Court: Alabama Supreme Court

49 So. 294

159 Ala. 282

RICHARDS v. BURGIN.

Supreme Court of Alabama

April 15, 1909

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by E. S. Richards, administratrix of the estate of G. W Hill, deceased, against Andrew W. Burgin. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Chamblee & Chamblee, for appellant.

Tillman Grubb, Bradley & Morrow, for appellee.

DENSON J.

This action is by the administratrix of the estate of G. W. Hill deceased, against Andrew W. Burgin, for the recovery of $30,000 damages for the alleged wrongful killing of said Hill. The action is predicated upon section 27 of the Code of 1896 (section 2486 of the Code of 1907).

The seventh count of the complaint, the one on which the trial was had, is in this language: "The plaintiff, as the administratrix of the estate of G. W. Hill, deceased, claims of the defendant the sum of $30,000 as damages, for that heretofore, on, to wit the 13th day of June, 1905, the defendant was sheriff of Jefferson county, Alabama, and A. J Gaddis and J. N. Curl were deputy sheriffs under, and agents of, the defendant, and that said A. J. Gaddis and J. N. Curl, while acting within the scope of their official employment as agents and deputy sheriffs of the defendant as aforesaid, did wrongfully cause the death of the plaintiff's intestate, the said G. W. Hill, by wrongfully shooting him with a gun or pistol in Jefferson county, Ala."

Plea 13 to the complaint is in this language: "Defendant, for further answer to the complaint, says that the defendant was, at the time mentioned in said complaint, sheriff of Jefferson county, Ala.; that previous to the time mentioned in said complaint there had been delivered to him for execution a certain warrant of arrest, issued by W. D. Paris, as coroner of Jefferson county, and who was at the time of the issuance thereof the coroner of Jefferson county, which said warrant of arrest commanded the sheriff of Jefferson county to arrest plaintiff's intestate on the charge of murder. And defendant avers that at the time mentioned two of his deputies, being duly authorized by the defendant, undertook to arrest the said plaintiff's intestate; that said intestate undertook to escape from said arrest, and while fleeing from said deputies was shot and killed by one of said deputies. And defendant avers that the shooting of said intestate by one of said deputies reasonably appeared to be necessary in order to prevent the escape of plaintiff's intestate."

There were verdict and judgment for the defendant, on issue joined on plea 13, and the plaintiff has appealed. She here assigns for error the action of the trial court in overruling her demurrer to plea 13.

The demurrer and the appellant's argument in support of it proceed upon the theory that, to render the plea safe from demurrer, it should have been therein alleged that the deputies informed plaintiff's intestate of their authority as officers to arrest him; and, secondly, that it should have alleged that plaintiff's intestate could not have been overtaken otherwise than by resort to the extreme measure of shooting him. Section 5210 of the Code of 1896 (section 6268 of the Code of 1907) provides that: "An officer may execute a warrant of arrest on any day and at any time. He must, in doing so, inform the defendant of his authority, and, if required, must show the warrant," etc.

It is this statute that the appellant takes as a basis for her first contention, invoking Brown's Case, 109 Ala. 70, 91, 20 So. 103, as authority in support of her theory and contention. In that instance the defendant was tried for and convicted of the crime of murder--the killing of a person who had been summoned by a special constable to aid him in arresting the defendant under a warrant for a misdemeanor. The killing occurred in the night, and while the arresting party was entering the house where the defendant was. One phase of the evidence tended to show that there was no notification to the defendant that a warrant had been issued for his arrest, and that the party had it present for exhibition, if required. Judge Brickell, for the court, after quoting the statute here involved, said: "The requirements of the statute are drawn from and in affirmation of the common law. They are ample to secure the execution of and submission to legal process; but they are equally intended to protect the citizen from unlawful interference with his personal liberty. 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."

In the light of this decision, and of other authorities, we have no hesitancy in holding that a plea of justification, under a warrant, fails to show a compliance with the statute in question, and is insufficient, unless it avers in terms that the officer gave information to the defendant of his authority, or avers such a state of facts as exempted him from imparting such information. If the attending circumstances were...