Morton v. Bradley , 30 Ala. 683 ( 1857 )

"WALKER, J.

It is contended for the defendant, that notwithstanding the seventh plea may have been bad, the overruling of the demurrer to it was error with out injury. It is conceded, upon the authority of the case of The State v. Brantley, 27 Ala. 44, that a plaintiff will not be regarded as having been inj ured by the overruling of a demurrer to a bad plea, if there are one or more other pleas to the entire action which are good, and if issues of fact upon all the pleas have been found in favor of the defendant. Perhaps it may hereafter be found necessary to restrict the rule, so as not to include a case where the testimony clearly authorized a verdict for the defendant only on the bad plea.

In this case, it does not clearly appear that all the issues were found for the defendant, or that the issue upon any good plea was found for him. The verdict was, “Ve, the jury, find for the defendant.” Whether this finding for the defendant was the result of the determination of the issues upon all the pleas, or of the issue upon only one, does not appear. The jury may have found for the defendant, and yet found the issue upon all the good pleas in favor of the plaintiff. The verdict may have been based upon a finding of the issue on the bad plea alone in favor of the defendant.

The established practice in this court is to reverse for error, unless it is clearly shown to have been harmless.— Foust v. Yielding, 28 Ala. 658; Elmore v. Mustin, ib. 309. It is too plain for argument, that an error in overruling the demurrer to a plea is not clearly shown to have been harmless, where, as in this case, the record does not disclose whether the finding of the jury against the plaintiff was not based upon the bad plea alone ; and .herein this case differs from The State v. Brantley, supra.

The seventh plea presents the following facts, as a defense to an action by the owner, to recover the value of a slave, killed by the defendant: The master of a dangerous runaway slave, who was armed with a deadly weapon, employed another to capture him, and instructed his employee, “if the slam resisted being taken, to take him deador alive, and to shoot and kill him, if he coidd not otherwise be taken." The slave, with a dangerous and deadly weapon, “resisted being taken” by the agent of the master, when by him pursued; and it was necessary, as a means of capturing the slave, that he should have the assistance of men and arms. The defendant then, by the request of the master’s agent, went to assist him in the capture of the slave, having been informed of the instructions give'n by the owner to his agent. The defendant, while assisting the master’s agent, came up with the slave, who with a deadly weapon “resisted being taken,” “and, brandishing said weapon at the defendant, refused to be taken, and could not be taken without being shot; and said defendant thereupon shot him, to prevent his escape, and, unfortunately, killed him.”

Three arguments are made in.support of this plea: 1st, That the authority of the owner to his agent, to shoot (and kill) the slave, if it were a necessary means of capture, was communicable to an assistant necessarily called by the agent to his aid in the business for which he was employed; and the assistant having shot the slave, in the contingency contemplated by the instructions of the owner’, cannot be amenable in damages to the owner. 2d, That under the laws of this State, one who kills a runaway slave, because the resistance of apprehension with a deadly weapon by the slave renders it impossible to capture him otherwise, is not liable civiliter for the act. 3d, That one may shoot a runaway slave for the puipose of disabling him, when he cannot be otherwise arrested, without incurring a liability to the owner, if he should, contrary to his design, kill him ; and that the plea makes out such a case. ~We proceed to consider these arguments in their numerical order.

1. If the authority, given by the owner, to kill the slave if he could not otherwise be taken, was illegal, it is certain, that no obligation to perform, and no liability for the omission to perform the illegal act, could result. There can be no delegation of authority to do an illegal act. But, upon a well-established maxim of law, it is not permitted to any one to take advantage of his own wrong; and, although the owner of the slave could not authorize another to commit an -unlawful homicide, yet slaves are property as well as persons, and while the law will not excuse the killing of a slave, upon the ground that the slayer had the master’s authority, the owner cannot be permitted to recover the value of his property destroyed by his direction. It does not follow, however, that because the owner is precluded from a recovery from him who acted under his instructions, the same protection could be transferred to another. The consent to the destruction of the property by one man, is not a consent to its destruction by another; and the consent that one man may destroy another’s property, implies no authority to the former to employ assistants in the work of destruction, or to transfer his immunity from civil liability to another. The question of delegated authority does not arise. It is sufficient, as to this point, that the defendant had not the consent of the owner of the property that he might destroy it, and that that consent could not be given by another.

2. Our consideration of the first argument by the ap-pellee has been upon the concession, that the conduct of the defendant, as described in the seventh plea, was illegal ; and the inquiry was, whether the instructions of the owner of the slave, communicated to the defendant, did not preclude a recovery of damages for the killing of the slave, notwithstanding it was illegal. "We are now to consider the question, thus far conceded for the sake of argument, whether the killing of the slave as described in the plea was illegal. It is a delicate and difficult duty, to designate the point at which the law, reconciling the claims of humanity and the necessity of subordination and subjection, permits the killing of a runaway slave, who resists apprehension; yet the exigencies of this case will not permit its evasion. Our law authorizes any person to apprehend, and carry before a justice, a runaway slave; and encourages the exercise of the authority, by providing a reward. — Code, § 1023. In the eye of that law, the apprehension of the fugitive slave by any white man is not only a lawful, but a meritorious act. The law allows an officer, in lawful pursuit of a felon, to kill him, if necessary to prevent his escape by flight. — 1 East’s C. L., 300; 4 Bla. Com. 180. The courts have abstained from the extension of this rule, to the capture of fugitive slaves. The necessity of immediate arrest, the detriment from the temporary escape of a runaway negro, and the policy of the society in which slavery is an element, have not been supposed to forbid the adoption of a less stern rule in reference to the apprehension of fugitive slaves ; a rule bending more to the claims of humanity, somewhat softened by compassion for the slave, and more consistent with the interests and rights of the owner of the property.

The killing of a runaway slave, merely for the purpose of preventing his escape, is not permitted. It results, however, from the fact that the apprehension of a slave is a lawful and meritorious act, that any person may press forward in the prosecution of the object of making the arrest, without regard to the perils which the menaced or actual resistance of the slave may present; that he is not bound to desist, because the slave presents a hostile attitude, or because the circumstances indicate that, in the prosecution of the object, the killing of the slave will become the necessary means of protection to him who is seeking to make the arrest. At the point of time when one, lawfully and properly endeavoring to make the apprehension, is placed, or will be placed if he further advance in the prosecution of his desigD, in that condition which would make a killing homicide in self-defense, he must be permitted to take the slave’s life. The law does not require him to retreat, or abandon the object, but encourages him to press forward. ‘When there are no other available means for the arrest at hand, and the alternative arises in which he can no farther carry forward the business of arresting the slave without imminent peril to himself, or the presence of circumstances which create a reasonable belief of such peril, he may kill him. To hold that, in such contingency, he must desist or retreat, would render impossible the apprehension of a slave bold or desperate enough to make dangerous resistance, and would establish a principle fatal to the subordination and government of the slave population. All the foregoing definitions of the contingency in which the homicide of a runaway slave is permissible must, however, be taken with this qualification, that before resorting to extreme measures, the captor must use all reasonable available means at hand, to effect the arrest, without injury to the slave. Humanity and common prudence alike forbid that one should be permitted, unnecessarily and improperly, to produce the alternative in which the killing of tlio slave would be necessary, when the object can by available means at hand be otherwise accomplished.

In the recent case of John J. Thompson v. William Young, decided by the high court-of errors an.cl appeals of Mississippi, a transcript of which has been furnished to us, the following language is used in reference to the same question which we are considering: “The statute expressly confers the right, and the policy of the country makes it the duty of every citizen, to arrest a runaway slave. It follows, therefore, necessarily, that if any person, in essaying to capture a runaway, shall meet with resistance, he may lawfully oppose force to force* He may even justifiably, in such case, slay the resistant, if the resistance offered be of such a character as to threaten imminent danger to the life, or great injury to the person of the captor. These rules are essential to the good government of the slave population, and necessary to the safety of the community. The laws for the government of slaves should be enforced firmly and wisely, and, of course, without unnecessary severity. The law is careful of the safety of the slave, within his prescribed sphere. [Regarded in the two-fold aspect of persons and of property, the same law which protects the master, guards their rights as persons It would hence be no justification of the homicide of a runaway, that he was slain by the captor in an effort to avoid an arrest by flight. For the same reason, a person, in an attempt to arrest a runaway who offered resistance, would not be justified in taking the life of the slave, unless by such resistance his own person or life were put in imminent danger.”

We quote thus copiously from the case above cited, because the views therein expressed, though requiring modification to make them correspond with our opinion of the law, in the main support the conclusions we have attained. We cite, also, the following decision from another State, where slavery exists, in maintenance of the positions laid down by us: Witsell v. Earnest & Parker, 1 Nott & McC. 182. See, also, the following decisions by this court: Dave v. The State, 22 Ala. 23; Eskridge v. The State, 25 Ala. 30; Nelson v. Bondurant, 26 Ala. 341; Dearing v. Moore, ib. 586.

The seventh plea does not show that the killing of the slave was under the circumstances which we have above decided to be necessary to make it lawful. It says that the negro, with a deadly weapon, resisted being taken, and, brandishing the weapon at the defendant, refused to be taken, and could not be taken without being shot; and that the defendant thereupon shot him. We can makfe no intendment in favor of the sufficiency of the plea. It does not show that the negro could not be taken without being shot, because of his resistance with a deadly weapon. It may be that the flight of the slave, after brandishing the weapon and refusing to be arrested, was the reason why shooting was necessary to his apprehension. But, under the principles stated, we should hold the plea insufficient, even if it did aver that the slave, because of his resistance with a deadly weapon, could not have been arrested without being shot. The captor, in the prosecution of the arrest, must have been brought into peril, before the killing could be permissible; or he must have prosecuted the purpose of arrest, to a point where a further prosecution of the object would be attended with imminent peril to his life or person, or by circumstances which would create a just apprehension of such peril.

We decline to consider the question raised in the last of the three arguments hereinbefore stated, because it is not raised by the plea. The plea does not show that the defendant shot with the intention of simply disabling the slave. That he unfortunately killed the slave, does not mean that he killed him by chance, or accident, when he was simply aiming to disable him.

The seventh plea, upon the principles laid down in this opinion, did not set forth a defense to the action; and the demurrer to it should have been sustained.

The ruling of the court upon the demurrer to the 7th plea, and the charges given and refused, are the only matters assigned for error. All the questions presented by the several charges given and refused are decided by us in passing upon the 7th plea, and it is unnecessary to notice them.

The judgment of the court below is reversed, and the cause remanded.