Summary
In Hill v. Wyrosdick, 216 Ala. 235, the court said at page 237: "The complaint charging in effect that the imprisonment was unlawful and by a public officer, evidence of a lawful arrest for probable cause was admissible under the general issue * * *."
Summary of this case from Barth v. FladOpinion
6 Div. 873.
May 19, 1927.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Harsh Harsh, of Birmingham, for appellee.
The complaint, so far as now material, was substantially in Code form for false imprisonment; the charge being that defendant Henry S. Hill, a deputy sheriff, acting under color of his office, "wrongfully arrested and imprisoned the plaintiff." The surety on his official bond was also sued, but a brief is presented on behalf of the appellant Hill only.
The refusal of charge No. 4, requested in writing by defendant, is first argued and insisted upon in brief as reversible error. The rule therein asserted, viz., that if the testimony of a witness to a material fact is willfully false, the jury, in its discretion, may disregard the whole of his testimony, is well known and often recognized as properly given in charge to the jury. It is a guide to the jury in weighing the evidence — rests on the principle that where a witness gives perjured testimony, all his evidence may be wanting in that moral force upon which judicial findings must stand.
Passing over some criticisms of form and generality of the charge as framed, we prefer to deal with the more material inquiry whether its refusal was error to reverse in the particular case.
The court gave the affirmative charge, with hypothesis, for plaintiff. This ruling is not questioned upon this appeal.
Without dispute the officer, having his attention called to a newspaper article announcing large rewards for the capture of one Kinnie Wagner, a desperate gunman who had escaped jail at Blountsville, Tenn., some three months before, giving also a photograph and descriptive matter, and having a suggestion that this plaintiff met the description, sought an interview with him, at his place of work, in Birmingham, presently arrested him without warrant, carried him to jail, and detained him from about 4 p. m. Thursday until 8:35 a. m. Sunday, when he was discharged as the wrong man. The prisoner was carried before no magistrate for examination, no warrant sworn out, and no reason given for such failure.
Evidence for plaintiff, not controverted, went to show that he had resided in Birmingham for more than a year; had engaged in work as a steam fitter; that his foreman was present when arrested; that associates called on the officer and informed him of the facts, giving details of employment; that plaintiff's mother had an interview to like effect. Notwithstanding the information given and the ready means of investigation at hand, the officer detained plaintiff in jail until the arrival of an officer from another state, who disclosed that plaintiff was not Wagner.
Conceding, without deciding, that an officer may arrest a fugitive felon from another state without warrant, that photographic and descriptive matter may afford sufficient evidence of identification, and that an officer is not responsible for mistaken identity if acting prudently upon probable cause thus shown, we think the admitted facts show defendant was disregardful of duty in such case, and plaintiff was due the affirmative charge. The jury was called upon merely to weigh the evidence for plaintiff in fixing the amount of damages.
There was no claim of abuse or maltreatment of the prisoner, no impeachment of any witness by contradictory statements, nor question of character. There was conflict between the testimony of plaintiff and defendant as to whether the latter laughed when he admitted the joke was on him and released plaintiff, and laughed when plaintiff asked him if he did not think something was due plaintiff.
Under the whole evidence we think the verdict, $375, negatives any injury from failure to give the written charge mentioned, but shows the jury quite considerate of the defendant.
Plea No. 2 was subject to demurrer. To "suspect and believe" is not the legal equivalent of belief upon probable cause. The reasonable belief which authorizes an arrest without a warrant must not be grounded upon mere suspicion, but upon information giving probable cause to believe. The citizen's liberty must not depend upon good faith merely, but upon legal rules governing official action.
The complaint charging in effect that the imprisonment was unlawful and by a public officer, evidence of a lawful arrest for probable cause was admissible under the general issue, and all the circumstances were freely admitted thereunder. Strain v. Irwin, 195 Ala. 414, 70 So. 734.
Whether under our statutes an officer may arrest a fugitive felon without warrant, not being necessary to a decision here, we leave an open question, as was done in Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.