7 Div. 497.
October 29, 1925.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
W. A. Denson, of Birmingham, for appellant.
Plea 2 is fatally defective, and demurrer thereto was erroneously overruled. Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 547; Richards v. Burgin, 159 Ala. 287, 49 So. 294, 17 Ann. Cas. 898. The giving of the charge for defendants that, unless Warner Adkins was attempting to arrest Andrew Adkins at the time of the difficulty, there could be no recovery, constituted reversible error. If deceased was wrongfully shot, and the deputies were acting in the scope of their employment, or under color of office, the defendants would be liable. Code 1923, § 2612; Deason v. Gary, 189 Ala. 675, 66 So. 646.
A. E. Hawkins and Isbell Scott, all of Ft. Payne, and J. Q. Smith, of Birmingham, for appellees.
If plaintiff was not entitled to recover under the general issue, error, if any, in rulings on demurrer to the special plea, was without injury. Smith v. Davenport, 12 Ala. App. 456, 68 So. 545; Culberson v. Empire Coal Co., 156 Ala. 419, 47 So. 237; Peck v. Karter, 141 Ala. 668, 37 So. 920; Supreme Court rule 45. If the act was not done under color of office, defendants are not liable. Burge v. Scarbrough, 211 Ala. 377, 100 So. 653.
The special plea setting up self-defense is fatally defective in its failure to show that plaintiff's intestate was responsible for the alleged danger to Warner Adkins, or that it was necessary for Burnett Adkins, in repelling such danger, to kill the intestate. It is also defective in failing to allege, in connection with its alternative averment of apparent peril to Warner Adkins, a reasonable and bona fide belief on the part of Burnett Adkins in the existence of such peril. Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; Mizell v. State, 184 Ala. 16, 63 So. 1000; Francis v. State, 188 Ala. 39, 65 So. 969. These defects were pointed out by apt grounds of demurrer, and the demurrer should have been sustained.
It is insisted, however, for the defendants, that the error in that respect is not available for reversal of the judgment, because the evidence failed to show that the members of the slaying party, or any of them, were acting as deputy sheriffs when they engaged in the altercation with Andrew Adkins and the intestate, but that the altercation, and the consequential killing of the intestate therein, were the result of a pre-existing feud, growing out of a former arrest of the intestate.
That the slayers were acting as deputy sheriffs, either within the scope of their authority, or under the color of their office, is of course an essential element of the liability of the sheriff and his bondsman for their conduct. But our examination of the testimony in the case convinces us that defendants' contention — that on that issue they were entitled to the general affirmative charge — is untenable.
It appears without dispute that the deputy Warner Adkins had a warrant for the arrest of Reynolds Adkins, a brother of Andrew and the intestate, who was with them when the party of deputies appeared at the scene of the killing; that Warner Adkins had that day deputized his brother Burnett and Kirk Ellison to assist him in making the arrest; that they were all fully armed; and that they knowingly went to the locality where Reynolds and Andrew and John Adkins, the intestate, were to be found, and, according to the testimony of Andrew Adkins and Jim Grigsby, the deputies promptly undertook, on their arrival at the scene, to disarm Andrew by taking his pistol from him. Under these conditions, however the weight of the evidence may have been, we think it was open to the jury to find that the mission of the deputies was to arrest Reynolds Adkins under the warrant they held, and that they attempted to disarm Andrew as an initial and a necessary step in the accomplishment of that purpose.
The charge given for defendants, restricting their liability to the circumstance of an attempted arrest of Andrew Adkins by Warner Adkins was erroneous, for the reasons just above stated. And, very clearly, the difficulty may have arisen from the ill feeling resulting from a previous arrest of the intestate, and yet the killing may have been done in the course of the exercise of official authority by the deputies.
The record exhibits many other assignments of error, upon rulings which will scarcely be presented again, and their discussion therefore seems unnecessary, further than to observe that some of the statements made in argument by counsel for defendants were unauthorized and improper, and should be avoided on the next trial of the cause.
For the errors noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.