Wong Son v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441. An illegal arrest cannot be justified by facts subsequently ascertained. Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Weldon v. State, 39 Ala. App. 286, 97 So.2d 825. Juror must be impartial, free from bias and prejudice. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277. Statutory grounds for jurors disqualification are not exclusive, and any other ground indicating probable prejudice will disqualify. Pointer v. State, 24 Ala. App. 23, 129 So. 787.
An arrest is illegal if the arresting officer has no warrant for the arrest of the defendant; or if the crime was not committed in the presence of the arresting officer; or the officer has no probable cause to believe that a felony has been committed and that the defendant committed the same. Dennis v. State, 40 Ala. App. 182, 111 So.2d 21; Rhodes v. McWilson, 16 Ala. App. 315, 77 So. 465; Berry v. State, 27 Ala. App. 507, 175 So. 407; Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Am.Jur., Arrest, § 44. Evidence obtained incidental to and derivative of an illegal arrest, is illegally seized and should not be admitted into evidence at the trial of the case, over the objection of the defendant. Weaver v. United States, 9 Cir., 216 F.2d 23; Rhodes v. McWilson, 16 Ala. App. 315, 77 So. 465; Walker v. United States, 5 Cir., 225 F.2d 447. A search warrant issued without probable cause, which includes facts supporting and showing the probable cause; or because of its failure to properly describe the premises to be searched; or fails to properly describe the property made the basis of the search is invalid and evidence seized under such search warrant has been illegally seized and should not be admitted into evidence over the objection of the defendant, or should be excluded upon proper motion of the defendant.
There can be no conviction for resisting an officer in an attempt to make an arrest, unless it is shown that the purported arrest was lawful. Code 1923, § 3263; Gambill v. Schmuck, 131 Ala. 321, 31 So. 604; Mangino v. Todd, 19 Ala. App. 486. 98 So. 323; Deason v. Gray, 192 Ala. 611, 69 So. 15.
Curtis, Maddox Johnson, of Jasper, and J. M. Hawkins, of Winfield, for appellants. An officer is not authorized to make a search of or molest a person who is not committing an offense, and where there is no justifiable suspicion that he is doing so. Mangino v. Todd, 19 Ala. App. 486, 98 So. 323. Where there is no excuse for an arrest, and the manner of its attempt is unlawful, the person being arrested may resist with force. 40 C.J.S., Homicide, § 137-b; Green v. State, 238 Ala. 143, 189 So. 763.
London Yancey, Geo. W. Yancey, and Fred G. Koenig, Sr., all of Birmingham, for appellant. On appeal the motion for new trial is properly a part of the record and it need not be set out in the bill of exceptions. Ex parte Grace, 213 Ala. 550, 105 So. 707; Blair v. State, 28 Ala. App. 430, 187 So. 645; Central of Ga. R. Co. v. Burkett, 23 Ala. App. 294, 124 So. 404; Southern R. Co. v. Scottsboro Wholesale Co., 22 Ala. App. 636, 119 So. 241; Wilson v. State, 25 Ala. App. 298, 145 So. 591; Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Code 1940, Tit. 7, §§ 214, 764. On appeal from judgment when error is assigned that court erred in refusing to grant new trial, statement in bill of exceptions that court entered order overruling motion for new trial and that to such action defendant then and there duly and legally excepted, is a sufficient statement of the decision of the court rendered on motion for new trial under Sections 764 and 214, Title 7, of the Code. Wilk v. Key et al., 117 Ala. 285, 23 So. 6; Pacific F. I. Co. v. Burnett, 212 Ala. 287, 102 So. 214. Where recitals in bill of exceptions and judgment entry conflict on matters which should appear in bill of exceptions recital in bill of exceptions will control.
Where the evidence makes a jury case, there is no error in overruling motion for a new trial on ground the verdict is contrary to the evidence. Grant Co. v. Smith, 220 Ala. 377, 125 So. 393, 395; Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Jena Lumber Co. v. Marlowe Lumber Co., 208 Ala. 385, 94 So. 492. The burden is upon appellant to show error and that it was prejudicial.
Halle v. Brooks, 209 Ala. 486, 96 So. 341; State v. Board, 226 Ala. 62, 145 So. 575; Druhan v. Mobile L. R. Co. (Ala.App.) 146 So. 421. Newly discovered evidence on collateral matter, or which is merely cumulative, will not warrant the granting of a new trial. Brown v. Brown, 200 Ala. 554, 76 So. 912; Goodwin v. Aaron, 203 Ala. 677, 85 So. 17; Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Fries v. Acme, etc., Co., 201 Ala. 613, 79 So. 45; Van Tinder v. B. R., L. P. Co., 202 Ala. 474, 80 So. 858; Caravella Shoe Co. v. Hubbard, 201 Ala. 545, 78 So. 899; Wilkinson v. Bottoms, 174 Ala. 122, 56 So. 948. A party surprised by evidence cannot speculate on a favorable result and then urge surprise and newly discovered evidence as a ground for new trial. Aldridge v. Tully, 216 Ala. 567, 114 So. 130.
Where there is evidence to support the verdict, it should not be set aside because it may not correspond with the opinion of the court as to the weight of the testimony or because it is against the mere preponderance of the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738; White v. Blair, 95 Ala. 148, 10 So. 257; Thompson v. Southern R. Co., 17 Ala. App. 406, 85 So. 592; Mangino v. Todd, 19 Ala. App. 486, 98 So. 329; Alabama S. W. Co. v. Thompson, 166 Ala. 467, 52 So. 75. Where the goods intermixed are of equal value, that is, the mixture is approximately homogeneous, neither party loses his property, but each is entitled to his aliquot part of the whole. Reeves v. Reeves, 207 Ala. 362, 92 So. 551; Sims v. Glazener, 14 Ala. 695, 48 Am. Dec. 120; Willard v. Cox, 9 Ala. App. 439, 63 So. 781; Hentz v. The Idaho, 93 U.S. 575, 23 L.Ed. 978; 12 C. J. 495. Unless the confusion was by reason of Walker's wrongful or culpable negligence and the mixture was indistinguishable, and not capable of just appreciation and division according to the original rights of each, defendant did not lose his property rights.
Numerous cases from other jurisdictions allow a plaintiff to recover either under this theory, under a theory of "acting in concert," or under some combination of the two. See Mangino v. Todd, 19 Ala. App. 486, 98 So. 323 (1923) (where three sheriff's deputies had unlawfully shot at and injured plaintiff, the court held that the deputies were engaged in a common enterprise and that all were equally responsible for the injury); Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91 (1948) (where the parties were members of a hunting group and plaintiff's eye was injured by a single shotgun pellet when defendants fired simultaneously in the direction where they knew plaintiff to be standing, the court viewed both defendants as negligent and shifted the burden of proof to the defendants to absolve themselves of liability); Orser v. Vierra, 252 Cal.App.2d 660, 60 Cal.Rptr. 708 (1967) (where three defendants were shooting at a mudhen in the direction of plaintiff's deceased, and the cause of death was determined to be a bullet fired from a pistol, applying the theories of "alternative liability" and "acting in concert," the court held that the trial court erred in granting summary judgment for defendants where t
Where the verdict of the jury is responsive to the evidence and consistent with the general charge, it should not be disturbed by the court on motion for a new trial. Mangino v. Todd, 19 Ala. App. 486, 98 So. 323 (1923). The record discloses that the issue of law as charged by the trial court was (a) whether there was a contract between Keith and Argo, (b) whether Keith performed all the requisites of the contract, (c) whether Argo had failed to perform under the contract, and (d) whether Keith sustained damages because of Argo's nonperformance of the contract or failure to perform the contract.