Alexander v. Lindsey

• Decision Date: 12 October 1949
• Docket Number: 90
• Citation: 55 S.E.2d 470,230 N.C. 663
• Parties: ALEXANDER v. LINDSEY et al.
• Court: North Carolina Supreme Court

55 S.E.2d 470

230 N.C. 663

ALEXANDER v. LINDSEY et al.

No. 90

Supreme Court of North Carolina

October 12, 1949

[Copyrighted Material Omitted]

This is a civil action in which the plaintiff seeks to recover damages for false arrest, false imprisonment and for malicious prosecution.

The defendant G. H. Lindsey and his wife, Eleanor Lindsey, were living separate and apart, having entered into a separation agreement, February 12, 1947. In May, 1947 Mrs. Lindsey was living in Black Mountain with her two children, a girl 14 and a boy 9, in a house rented by her. The plaintiff had been taking his evening meals with Mrs Lindsey and on occasions would remain in the house until a late hour. Mrs. Lindsey testified the plaintiff had been paying her $10 a week for his evening meals. She also testified that she had never forbidden the plaintiff to come on the premises, but that her husband had protested to her about his presence there; that on one occasion he brought the defendant, Sheriff Lawrence E. Brown, to her home and the sheriff informed her that he would have her and the plaintiff arrested if he (Alexander) did not stay away from her.

The plaintiff testified that on May 16, 1947, he had gone to the home of Mrs. Lindsey for supper and shortly after his arrival the defendant, Carl W. Smith, came to the Lindsey home and requested him to come outside the house. 'Smith said something about a little trouble and I said 'What's the matter, am I under arrest?' and he said 'Let's go', and I got in the car with him and then I asked 'Where's the warrant?' and he said, 'The Sheriff has got it'. ' He was then informed upon his inquiry that he was being arrested for trespassing and that the bond was $200. After making some effort to secure a bondsman, he was informed by the defendant Smith that he was not authorized to accept a bond. Whereupon Alexander was turned over to two deputies of the defendant, Sheriff Lawrence E. Brown, and lodged in the Buncombe County jail. It further appears from plaintiff's testimony that prior to his arrest the sheriff had said to him 'Bob if I catch you down at Lindsey's any more I'm going to lock you up, and her too,' and when he was asked what for, he replied 'I'll investigate that on the 15th floor of the jail house. ' And on the morning of May 17, 1947, the defendant Brown took the plaintiff in his office and said to him, 'Oh, yes, I told you I would get you on the 15th floor. * * * I don't have any use for you and you don't have any use for me.'

John Brittain testified that while the plaintiff was in jail in Black Mountain he offered to post bond for him, but that the defendant Smith called the defendant Brown over the 'phone and after having a conversation with him he refused to accept a bond, stating he had no authority to do so; that he would have to contact Sheriff Brown; that on the following day in Asheville, when he did sign the plaintiff's bond, the defendant Brown told him that the trouble between him and the plaintiff was caused by the plaintiff's failure to pay for his board when he had boarded with Brown's mother two or three weeks several years before and his refusal thereafter to support him in a primary campaign.

The warrant introduced in evidence is as follows:

'Grayson H. Lindsey, being duly sworn, complains and says, that at and in said County, on or about the 4th day of May, 1947, Robert Alexander did unlawfully and willfully Trespass against the form of the statute in such case made and provided, and contrary to the law and against the peace and dignity of the State.

'Subscribed and sworn to before me, the 5th day of May, 1947.

'(s) Grayson H. Lindsey.

'E. E. White, J. P.

'State of North Carolina---Buncombe County.

'To Any Constable or other lawful Officer of Buncombe County---Greetings:

'You are forthwith commanded to arrest Robert Alexander, and him safely keep, so that you have him before me, the undersigned Justice of the Peace, at his office in Black Mountain Township, in said County, immediately to answer the above complaint and be dealt with as the law directs.

'Given under by hand and seal, this the 5th day of May, 1947.

'(s) E. E. White, J. P. (Seal).'

On the back of the warrant there is this return: 'Received 17th day of May, 1947, executed and returned for trial on the 17th day of May, 1947, L. E. Brown, Sheriff, by Roy Alexander, Deputy Sheriff.'

E. E. White, the Justice of the Peace who issued the warrant, testified that the defendant Robert O. Alexander (the plaintiff herein) was never tried, and that the warrant was withdrawn thereafter 'on condition the defendant (the plaintiff herein) refrain from trespassing upon premises occupied by complainant's children'; that two of the brothers of the defendant (the plaintiff herein) assured the Court that Robert O. Alexander would cause no more trouble, whereupon the Court consented to the warrant being withdrawn, and the complainant, G. H. Lindsey, paid the costs and the bondsman was released.

At the close of plaintiff's evidence, the defendants made a motion for judgment as of nonsuit. The motion was allowed as to all defendants on the action based upon false arrest and false imprisonment, and as to the defendants Lawrence E. Brown and Carl W. Smith on the cause of action for malicious prosecution, and judgment signed accordingly. The plaintiff appeals and assigns error.

Guy Weaver, Asheville, for plaintiff.

W. K. McLean, Don C. Young and Oscar Stanton, Asheville, for defendants.

DENNY, Justice.

In order for us to determine the correctness of the ruling below granting the motion for judgment as of nonsuit, on the cause of action for false arrest and false imprisonment, it is necessary to consider certain preliminary questions. (1) Was the purported warrant, copy of which appears in the record sufficient to authorize a constable or other lawful officer in Buncombe County to arrest the plaintiff? (2) Conceding such warrant to be valid, was the arrest made by defendant Carl W. Smith, a policeman of the town of Black Mountain, by direction of Sheriff Brown, illegal, when the sheriff retained the possession of the warrant in Asheville?

Ordinarily an officer is protected in serving a warrant, for the arrest of an accused named therein even though the warrant is defective. State v. Curtis, 2 N.C. 471; Welch v. Scott, 27 N.C. 72; State v. Ferguson, 76 N.C. 197; State v. James, 80 N.C. 370; State v. Jones, 88 N.C. 671; State v. Dula, 100 N.C. 423, 6 S.E. 89; State v. Gupton, 166 N.C. 257, 80 S.E. 989; Clark's Criminal Procedure, Section 9, p. 41. Ruffin, J., said in Welch v. Scott, supra: 'When the warrant purports to be for a matter within the jurisdiction of the justice (magistrate) the ministerial officer is obliged to execute it, and of course must be jutisfied by it. He cannot inquire upon what evidence the judicial officer proceeded, or whether he committed an error or irregularity in his decision * * *, the constable has nothing to look to but the warrant as his guide, it follows, that he is justified by the warrant, though not purporting to have been, nor in fact issued on a sworn charge.'

In the case of State v. Gupton, supra, the defendant, an officer, was on trial for murder of Charles Snyder, having killed Snyder while attempting to arrest him. The State contended the warrant under which the officer was purporting to act was void, but this Court held otherwise. It was pointed out that it is contemplated in the law, that magistrates, not learned in the law, may sometimes issue papers defective in form, and even in substance, but the method of correction is provided by statute. Rev. s 1467, now G.S. s 7-149, Rule 12. State v. Pool, 106 N.C. 698, 10 S.E. 1033. State v. Smith, 103 N.C. 410, 9 S.E. 200; State v. Smith, 98 N.C. 747, 4 S.E. 517; State v. Vaughan, 91 N.C. 532. The complaint or accusation in the warrant was held to be but a defective statement, being to general, but the nature of the crime charged sufficiently appeared for the purpose of arrest and to justify the officer in making it.

On the other hand, it has been held that an officer cannot justify an arrest, by force of a warrant issued by a justice of the peace, when it appears on the face of the warrant, to be for an offense of which he has no jurisdiction. State v. McDonald, 14 N.C. 468, 469. And an action for false arrest will lie for the arrest of a party on a charge which does not constitute a criminal offense. Rhodes v. Collins, 198 N.C. 23, 150 S.E. 492; Wharton's Criminal Procedure, Vol. 1, Sec. 31, p. 64.

The warrant under consideration is defective, but not void. It was sufficient to show that the complainant intended to charge a trespass which is a misdemeanor, an offense within the jurisdiction of the magistrate who issued the precept; and when it was executed the detention thereafter was legal, and the defendants cannot be held for false imprisonment after such service or execution.

The second question is more difficult. The overwhelming weight of authority, however, seems to be to the effect that in making an arrest without a warrant for a misdemeanor not committed in the presence of the officer, unless expressly authorized to do so by statute, the officer making the arrest or someone assisting him, must have the warrant in his possession.

In 6 C.J.S., Arrest, s 4, p. 576 et seq., we find the general rule stated as follows: 'The warrant must at the time of arrest be in the possession of and with the person purporting to act thereunder or of one with whom he is acting in conjunction. * * * Accordingly, when the warrant is at the officer's house some distance from the scene of the arrest (citing State v. Beal, 170 N.C. 764, 87 S.E 416), or in the hands of another officer who is not at the scene of...