Cox v. Durham

Citation128 F. 870
Decision Date14 March 1904
Docket Number1,960.
PartiesCOX v. DURHAM et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James M. Houston, for plaintiff in error.

A. S VanValkenburgh (William Warner and Robert F. Porter with him on the brief), for defendants in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

THAYER Circuit Judge.

James T. Cox, the plaintiff in error, brought this action against Edwin R. Durham, the United States marshal for the Western District of Missouri, John E. Morrison, and the American Surety Company of New York, who are the defendants in error. The complaint contained two counts, in one of which damages were claimed apparently on account of the abuse or misuse of process, and in the other damages were claimed as for a false imprisonment. The surety company was the surety on the official bond of the marshal, while the other defendant Morrison, appears to have been one of the marshal's deputies who made the arrest hereinafter described. The facts which gave rise to the controversy appear to be these: In April, 1899, a post office at Boulder, Colo., was broken into and robbed. The robber was at first unknown, but afterwards a man who went by the name of George Rogers was arrested at Lincoln, Neb., for some offense against the postal laws, and while on the way to jail threw away some papers and checks which were supposed to have some bearing or throw some light on the robbery previously committed at Boulder. Among the papers so thrown away, but subsequently recovered was an express money order receipt which indicated that the money order was purchased by J. T. Cox and was payable to J J. Cox at a place named Belton. A post office inspector by the name of Waters, who was engaged in investigating the robbery at Boulder, Colo., when this receipt came into his hands and certain inquiries had been made with reference thereto of persons who were acquainted with Rogers, was led to conclude that the real name of the man Rogers, who threw the receipt away, was J. T. Cox, and that he had in fact committed the robbery at Boulder. For the purposes of the present case it is unnecessary to state more in detail the reasons which led him to this conclusion. As the name of the state where Belton was located was not stated on the face of the receipt, the inspector proceeded to ascertain its location. He found that there were only four post offices named Belton in the United States, one of which was located in Texas, one in Oklahoma territory, one in South Carolina and one in Missouri. He thereupon addressed an inquiry to the postmasters at three of these places to ascertain if any person by the name of J. T. Cox was known or was living in the vicinity. He received a letter from the postmaster at Belton, Mo., under date of January 11, 1900, informing him that a man by the name of J. T. Cox was living in that vicinity. Acting on the belief that the person residing near Belton, Mo., by the name of J. T. Cox, was the person for whom he was in search, and believing, apparently, that the evidence in his possession tended to show that he had committed the robbery at Boulder, he proceeded to Kansas City, Mo., near which city Belton, Mo., is located, and laid the facts and his suspicions before the United States attorney for the Western District of Missouri. Thereupon one of the assistants of that officer filed an information under oath before a United States commissioner, charging, on information and belief, that on or about April 11, 1899, at the county of Boulder and state of Colorado, 'one J. I. Cox, alias George Rogers, * * * did unlawfully and feloniously break into a certain building then and there used * * * as a post office of the United States with intent therein to commit larceny and other depredations, and the property of the United States to steal, take, and carry away; and that the said J. I. Cox, alias George Rogers, is now a fugitive from justice within the Western District of Missouri. ' On the filing of such information the commissioner issued a warrant commanding the United States marshal for the Western District of Missouri and his deputies, or any or either of them, in the name of the President of the United States, 'to apprehend the said J. I. Cox, alias George Rogers, wherever found in your district, and bring his body forthwith before me or any other commissioner having jurisdiction of said matter, to answer the said complaint, that he may then and there be dealt with according to law for the said offense. ' The warrant contained the usual recital that a complaint in writing under oath had been made before the commissioner, 'charging that J. I. Cox, alias George Rogers, late of Boulder county, in the state of Colorado, on or about the 11th day of April, A.D. 1899, did at the county of Boulder, in violation of section 5478 of the Revised Statutes of the United States, unlawfully and feloniously break into a building then and there used * * * as a post office of the United States, with intent therein to commit larceny and other depredations. ' This warrant was placed by the marshal in the hands of one of his deputies, the defendant, John E. Morrison, who proceeded to Belton, Mo., to make the arrest. The arrest was made a little after daylight on the morning of January 16, 1900, and handcuffs were placed on the prisoner at the time of the arrest, although the plaintiff protested that if the marshal desired to take him to any place he would go peaceably without being handcuffed. While being taken by train from Belton to Kansas City, Mo., the warrant was read to the prisoner, and when so read to him he advised the officer that his name was J. T. Cox, and Not J. I. Cox, as specified in the warrant, and that for this reason he was not properly described. After the plaintiff was taken to Kansas City Mo., he was brought before the commissioner, and advised the commissioner that his true name was J. T. Cox, and not J. I. Cox, whereupon, as the plaintiff testified, the commissioner changed the letter I to a T, saying that the 'I' was meant for a 'T.' He was committed to jail under the description James T. Cox, alias George Rogers, and was vaccinated pursuant to jail regulations. Several hours after he had been committed to jail, but on the same day, the plaintiff was discharged and left for home that evening, it having been discovered in the meantime by the post office inspector that...

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3 cases
  • O'Neill v. Keeling
    • United States
    • Iowa Supreme Court
    • 12 Diciembre 1939
    ... ... duty when he took the plaintiff into custody, and thus ... permitted the question of identity to be ultimately decided ... Under the undisputed facts of the case the warrant is a ... complete defense to this action against the office. Cox ... v. Durham [8 Cir.], 128 F. 870, 63 C.C.A. 338; ... Madden v. Meehan, 153 Ky. 648, 156 S.W. 116." ...          See, ... also, Vol. I, Restatement Law of Torts, p. 283, par. 125, ... under head note " False Imprisonment" which states ... that an arrest, under a warrant, is not privileged unless ... ...
  • Poffenbarger v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 10 Junio 1927
    ...and it has been held that the law knows but one Christian name. Games v. Stiles, 14 Pet. 322, 327, 10 L. Ed. 476. See also, Cox v. Durham (C. C. A.) 128 F. 870. We are of the opinion that the insertion of a middle initial in the name of the defendant, in view of the uncontradicted evidence ......
  • United States v. Hecht
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 1 Noviembre 1927
    ...The error, being in the middle initial, is probably not available anyway. Games v. Dunn, 14 Pet. 322, 327, 10 L. Ed. 476; Cox v. Durham, 128 F. 870, 874 (C. C. A. 8); O'Halloran v. McGuirk, 167 F. 493, 494 (C. C. A. 1). All that is before us is whether the appellant is the person in fact in......

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