State v. Cloud

• Decision Date: 16 April 1928
• Docket Number: 27081
• Citation: 116 So. 814,150 Miss. 697
• Court: Mississippi Supreme Court
• Parties: STATE, FOR USE OF THOMPSON v. CLOUD et al. [*]

116 So. 814

150 Miss. 697

STATE, FOR USE OF THOMPSON v. CLOUD et al. ^[*]

No. 27081

Supreme Court of Mississippi

April 16, 1928

Division B

Suggestion of Error Overruled May 21, 1928.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS Judge.

Action by the state, for the use of Crisler Thompson, against M. M Cloud and others. From judgment for less than claimed, plaintiff appeals. Reversed and remanded for new trial on question of damages.

See, also, 146 Miss. 642, 112 So. 19.

Reversed and remanded.

H. B. Greaves, M. S. McNeil and C. N. Floyd, for appellant.

W. H. & R. H. Powell and Wilson & Henley, for appellees.

Argued orally by M. S. McNeil and H. B. Greaves, for appellant, and W. H. Powell and W. S. Henley, for appellee.

OPINION

ANDERSON, J.

The state, for the use of Crisler Thompson, brought this action in the circuit court of Copiah county against M. M. Cloud, sheriff of Madison county, and the United States Fidelity & Guaranty Company, surety on his official bond as such sheriff, to recover damages from the appellee and such surety for a tort alleged to have been committed by appellee against appellant while acting under color of his office as such sheriff which tort it was alleged, constituted a breach of appellee's official bond. There was a trial resulting in verdict and judgment in favor of appellant in the sum of five hundred dollars. From that judgment, appellant prosecutes this appeal.

The only error assigned and argued by appellant was the action of the court in overruling appellant's motion for a new trial, based alone upon the alleged inadequacy of the damages awarded him by the jury.

Appellant's evidence tended to make the following case: Appellee was sheriff of Madison county, and Black, Chandler, and Hobson were his duly constituted deputies. As such sheriff, appellee procured a search warrant authorizing him and his deputies to search the premises of appellant's brother-in-law, Gus Griffin, situated in Madison county, for intoxicating liquors. Thereupon appellee, accompanied by the three deputies named, went to the barn of Gus Griffin, and secreted themselves thereabouts. They were all armed with deadly weapons. Appellee instructed his deputies to remain there secreted to await the arrival of an automobile which was supposed to contain intoxicating liquors, and, when such automobile arrived, to seize the same with any intoxicating liquors therein, and arrest the occupants of the automobile. Appellee then returned to his home in Canton, the county seat of Madison county. While the deputies were thus secreted upon the premises of Gus Griffin, the appellant and his companion, Hendricks, in an automobile, drove up to Griffin's barn and under the shed attached to the barn. In the car in which they were driving there were a bird dog, a sack of butter beans, and a well auger. After driving under the shed of the barn and stopping there, appellant and Hendricks got out of their car onto the ground, and, while appellant was endeavoring to remove the bird dog from the back seat of the car, the sack of butter beans fell out of the car onto the ground. Appellant requested Hendricks to pick up the sack of butter beans, which Hendricks proceeded to do. As Hendricks stooped over to pick up the sack, a flash-light in the hands of one of appellee's said deputies, who had come out of his hiding, was turned on appellant and Hendricks in such manner as to bring both of them within the rays of the light and expose them to the full view of the deputies. Thereupon, without warning to either the appellant or Hendricks of their purpose, and while the latter was in a stooping posture picking up the sack of butter beans, one of the deputies shot Hendricks in the back with a shotgun, the shot causing Hendricks to fall to the ground, mortally wounded, and, while in that position, two or three other shots were fired into Hendricks' prostrate body by one of the other deputies, all the shots taking effect in Hendricks' back.

The appellant was frightened by the shooting, and backed away from the car, and, while so backing, he thought the deputies were pursuing him, and threw up both his hands with his face turned toward them, and cried: "My God! I have got up my hands, don't shoot me!" When this occurred, the flash-light in the hands of one of the deputies was full upon appellant, revealing to the deputies his form with his hands up. Notwithstanding this fact, the appellant was shot by one of the deputies, the load taking effect in one of his upturned hands and in his throat. His entire palm was shot out, taking away all of the fingers on that hand except his thumb and little finger. In addition, appellant received a serious wound in his throat. After appellant was shot, he fled, and, while fleeing, was shot at with a shotgun by one of the deputies when about fifty yards away. This shot hit him in the back, but failed to penetrate the skin and cause any wound. The appellant and Hendricks were unarmed, and had no intoxicating liquor either in the car in which they came or about their persons. Appellee had no warrant for the arrest of either the appellant or Hendricks, but had, as stated, a search warrant for the search of the premises of Gus Griffin for intoxicating liquors, with authority in the search warrant to make arrests, in case such liquors were found as a result of the search.

The appellee defended upon the ground that his deputies shot Hendricks in self-defense, and, in doing so, appellant ran in the range of one of the shots aimed at Hendricks, which caused appellant's wounds in his hand and throat.

There was no dispute in the evidence that appellee's deputies undertook to arrest appellant and his companion, Hendricks, without any attempt to serve the search warrant in their possession.

Appellee's deputies, Black, Chandler, and Hobson, testified that, when they called upon appellant and Hendricks to submit to arrest the latter drew from his hip pocket what afterwards developed to be a bottle, which he threw against some object and broke; that, when the bottle was thus drawn, it had the appearance of a pistol, and that they believed, and had good reason to believe, that Hendricks...