Opinion
No. 32932.
December 13, 1937.
1. ARREST.
An officer making an arrest without warrant on suspicion of felony may act upon telephonic information furnished him by a credible person, known to him as such, but the information must at least be sufficient in its factual statement to justify officer in believing that a felony has been committed and that there is good factual reason to definitely suspect that the party arrested, or to be arrested, is the felon.
2. ARREST.
Where informant telephoned sheriff requesting sheriff to arrest and detain occupant of automobile, giving make and license number and that information as to reason for the arrest and detention would be given later, arrest by sheriff and his deputy was unauthorized.
3. ARREST.
Where information furnished to sheriff by party requesting plaintiff's arrest was not sufficient to justify arrest, that officers on stopping plaintiff found that shot had passed through wind shield of plaintiff's automobile did not justify arrest where plaintiff furnished full information as to residence, employment, and purposes, and officers had nothing before them to the contrary.
4. FALSE IMPRISONMENT. Sheriffs and constables.
Where informant required sheriff to arrest plaintiff with sole additional statement that reason therefor would be furnished to officers later, sheriff and deputy stopped plaintiff and noticed that shot had passed through windshield, and arrested plaintiff although he had given full information as to his residence, employment, and purposes, in action against officers and sheriff's surety, plaintiff was entitled to peremptory instruction on issue of liability and to instruction properly drawn on issue of punitive damages.
5. FALSE IMPRISONMENT.
When an arrest has been made by sheriff and his deputy and an imprisonment imposed, and admitted facts show no legal grounds therefor, jury should be permitted to say whether the conduct of officers has been characterized by such gross wrong as to evince a wanton or willful disregard of the rights of others, and, if so, to administer a corrective by way of smart money.
APPEAL from the circuit court of Washington county. HON. S.F. DAVIS, Judge.
Percy Bell, of Greenville, for appellant.
Mississippi Code of 1930, section 1227, provides when arrests may be made without a warrant, and reads as follows: "Arrests — when made without warrant. — An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit."
It will be observed by the court that the present arrest does not fall within any of the provisions of the code. There was no offense committed in the presence of the sheriff nor had Mr. Laster committed any felony nor was there any proof that a felony had been committed or that the sheriff had any ground to suspect Laster of committing one nor had there been any charge made to the sheriff of the commission of a felony by Laster. On the contrary, no arrest could have been more wanton or more unjustified than the arrest of this boy, but not content with the false arrest the sheriff imprisoned him in the county jail without a warrant or any cause.
In King v. State, 113 So. 173, 147 Miss. 31, the principle is laid down that an officer undertaking to act on probable cause without a warrant must have information convincing the court that it amounts to probable cause and that probable cause is a judicial question and that the judgment of the officer as to probable cause is not conclusive.
We submit that there was no probable cause whatever in this case and that the court erred therefore in refusing the peremptory instruction asked by the appellant, for such refusal necessarily implied that the court believed that the sheriff had probable cause.
Our statute affirms the common law as to arrest without warrants.
Kennington-Saenger, Inc., v. Wicks, 151 So. 549, 168 Miss. 566; Vice v. Holley, 41 So. 7, 88 Miss. 572.
Instruction No. two was a repetition of the peremptory instruction with the addition of an authorization of punitive damages. We submit that the instruction should have been granted. There had been no justification for the arrest or detention and we submit that if the jury believed such detention was in wanton disregard of the appellant's rights that punitive damages were proper and that the question of their being in wanton disregard should have been submitted to the jury.
25 C.J., page 548, pars. 157-159, page 551, par. 161, page 554, note (a), page 563, par. 178, page 564, note (a).
The jury evidently disregarded both the facts and the law because under the facts and the law as stated there was no escaping liability on the part of the sheriff. Ernest Kellner, of Greenville, for appellees.
If the appellee, R.P. Chaney, sheriff, was not justified in the arrest of the appellant upon the information that the appellant was a cattle thief and was fleeing from the scene of the crime communicated to him by a reputable citizen, as testified to by the appellant himself, then it seems to me that there are no circumstances under which a peace officer can be justified in making an arrest without a warrant unless the crime is committed in his presence. As this court knows, the common law rule as to an arrest without a warrant by a peace officer is more liberal than as to such arrest by private individuals.
4 Am. Juris., pages 24 and 25.
The rule is stated as follows in 4 American Jurisprudence, page 18: "He (Peace Officer) may arrest any person whom he, upon reasonable grounds, believes has committed a felony even though it afterwards appears that no felony was actually perpetrated."
Orick v. State, 140 Miss. 184; Kennedy v. State, 139 Miss. 579.
Laying aside the information communicated to the appellee, R.P. Chaney, sheriff, by the appellee, E.W. Stone, that the appellant was a cattle thief and fleeing from the scene of the crime, as testified to by the appellant, and applying the foregoing rule that a peace officer may arrest any person whom he, upon reasonable grounds, believes has committed a felony even though no felony had been committed, it seems to me that after the appellee, R.P. Chaney, sheriff, stopped the appellant on the highway and learned from the appellant that he had been in contact with the appellee, E.W. Stone, and that there had been a shooting of some kind, the appellee, R.F. Chaney, sheriff, not only had the right to detain the appellant until he could investigate the matter, but as a peace officer he would have been derelict in his duty unless he had done so. Applying the common law rule of which our statute is declaratory and which is recognized and enforced by this court to the facts testified by the appellant himself, it is clear that the motion of the appellee, R.P. Chaney, sheriff, his deputy, and his surety to exclude the evidence of the appellant and direct a verdict for the appellees named should have been sustained and the trial court having erred in not directing a verdict for these appellees, the appellant certainly cannot complain because his case was submitted to the jury, who, under proper instructions as to the law applicable to the facts, returned a verdict for these appellees.
It seems to me unnecessary to argue that the judgment of the trial court should not be reversed because the trial court refused an instruction requested by the appellant for punitive damages, for the reason that in view of the fact that the jury returned a verdict against the appellant and in favor of the appellee, R.P. Chaney, sheriff, his deputy, and his surety, the appellant was in nowise prejudiced thereby even conceding that the appellant was entitled to punitive damages, which I respectfully submit is not shown by the record as to the appellees, R.P. Chaney, sheriff, his deputy and his surety.
Argued orally by Percy Bell, for appellant, and by Ernest Kellner, for appellee.
At the time of the injuries at issue in this case, appellant, a young white man then 22 years of age, was employed in the government engineering department at Vicksburg, and appellees were the sheriff of Washington county, his deputy, and the surety on the bond of the sheriff. On the afternoon of Saturday, October 10, 1936, appellant left Vicksburg for Greenville, traveling alone by automobile. At a point near Longwood, in Washington county, appellant stopped at the home of a young lady with whom he had an engagement, and, after driving around for a while, they went out on the levee near Chatham to see certain friends on a government dredge boat, which was thought to be stationed at that point. They failed to locate the dredge boat, and about 6:30 or 7 o'clock returned to the young lady's home, and soon thereafter appellant departed northward on his way to Greenville, where he was to visit other friends.
It seems that, while appellant and his companion were on the levee looking for the dredge boat, they left appellant's car parked in or near a pasture. Theretofore several head of cattle had been missing from pastures in that immediate vicinity. A local resident noticing appellant's car parked as aforesaid became suspicious, and went near enough to the car to ascertain its make and license number, and reported this information to a man named Stone, who was the manager of the plantation, which included the pasture near which the appellant's car had been parked, or in which it had turned around when coming back from the levee. Stone thereupon armed himself, and, accompanied by another man, located himself upon the Greenville highway to watch for the car of the make and license number so reported.
When appellant came along on his final way to Greenville, Stone telephoned the sheriff requesting the latter to arrest and detain the occupant of appellant's car, giving the make and license number, stating to the sheriff that information as to the reason for the arrest and detention would be given later, and that he, Stone, was following the car. Stone and his companion did follow and passed appellant, and, after having passed, Stone stopped and placed his car in such position as to partially block the highway, and then got out and waved to appellant with a signal to stop. Appellant thinking it was a holdup, sped around and by Stone's car, whereupon Stone fired two shots, one of which passed through the windshield of appellant's car. Appellant thereupon immediately came to a stop, got out of his car with his hands up, as he was ordered to do, and Stone informed him that he was being stopped for cattle thievery; but after a thorough search of the car and of the person of appellant by Stone, and when appellant disclosed to Stone, by exhibition of papers and oral information, who he was, what his object had been in visiting the levee, and other pertinent facts, Stone allowed him to proceed, but informed him that he would be stopped by the sheriff, who had been requested to do so by telephone. This was about 7:30 o'clock.
When appellant reached a point near Greenville, he was stopped by appellees, the sheriff and his deputy, whereupon appellant gave to the sheriff the same full information which he had given Stone, and the sheriff was also informed of the circumstances of Stone's having stopped appellant and that upon like information Stone had released him. The sheriff, noticing the hole of the shot in the windshield, stated that he would have to place appellant in jail until Stone could be seen. Appellant was thereupon placed in jail by the deputy, where he was kept until nearly 10 o'clock. Appellant filed suit jointly against the aforesaid appellees and against Stone. The jury returned a verdict of $2,000 against Stone, but, as to the other defendants, appellees here, the verdict was in their favor, and from the verdict and judgment as to the defendants, other than Stone, this appeal is prosecuted.
The officer making an arrest, without warrant, on suspicion of felony, may act upon information furnished him by a credible person, known to him as such, and this may be done by telephone; but this information must at least be sufficient in its factual statement to justify the officer in believing that a felony has been committed and that there is good factual reason to definitely suspect that the party arrested, or to be arrested, is the felon. Here no factual statement whatever was made to the officer, as both he and his informant admit. All that was communicated to the officer was a request to arrest appellant, with the sole additional statement that the reasons therefor would be furnished to the officer later. To make an arrest at the request of a third person, however credible that person may be thought to be, without any factual reason therefor given, would open wide the door to tyrannical personal and official oppression, and can find no support in any legal authority in this country.
Nor was the arrest justified by what appellee officers saw and heard after the appellant was stopped by them and it was found that a shot had passed through the windshield. In the first place, they had no legal basis of right to stop the appellant at all, and, in the second place, what they then saw and learned furnished no ground for more than a suspicion of a possibility, and an extremely remote possibility at that; for the appellant was unarmed and gave full explanation of the cause of the shot, as to which appellant was absolutely innocent, and full information as to his residence, employment, and purposes, and the officers had nothing whatever before them to the contrary. When using herein the expression "good factual reason to definitely suspect," we mean a good factual reason to definitely suspect as a tenable probability, not a mere possibility. If an attenuated possibility were accepted as a sustainable reason for an arrest, then few men could move beyond the environs of their own residences without being in constant danger of being seized and thrown into prison.
Appellant was entitled to the peremptory instruction requested by him upon the issue of liability, and he is entitled also to an instruction, carefully and properly drawn, upon the issue of punitive damages.
When a person has been chosen to the high position of sheriff and has assumed the duties thereof which in actual execution so largely deal with the liberties of the people, it will be naturally supposed that he has taken some pains to acquaint himself with the power and authority conferred upon him by law in relation to arrests, and with the limitations thereon as laid down by the law. And when an arrest has been made by him and his deputy, and an imprisonment imposed, and the facts admitted by him show no legal grounds whatever therefor, as is the case here, the jury should be permitted to say whether the conduct of the officers has been characterized by such gross wrong as to evince a wanton or willful disregard of the rights of others, and, if so, to administer a corrective by way of smart money.
In what has just been said, we lay down no formula for a punitive damage instruction, nor are we at all unmindful of the great difficulties under which law enforcement officers labor under modern conditions. They are not to be deterred or discouraged in the diligent and fearless discharge of their duties by harsh and unwarranted penalties, or by any penalty at all, as such, when they make some reasonably excusable mistake; nevertheless, they should at the same time be made to know that the liberty of the unoffending citizen stands above everything else under our constitutional system, and that official oppression, in whatever form it may appear, shall not be a matter to be lightly regarded.
As we have already stated, we do not understand that this appeal involves the judgment against Stone, but, if so, it is affirmed, and, as to the other defendants in the trial court, the judgment is reversed, and the case remanded.
Reversed and remanded.