Anderson v. Foster
| Decision Date | 07 January 1953 |
| Docket Number | No. 7799,7799 |
| Citation | 73 Idaho 340,252 P.2d 199 |
| Parties | ANDERSON et al. v. FOSTER. |
| Court | Idaho Supreme Court |
William H. Foster and Dean Kloepfer, Burley, W. L. Dunn, Twin Falls, for appellant.
S. T. Lowe, Burley, for respondents.
Respondents, Afton Anderson and Iloise Anderson, husband and wife, brought an action to recover damages from the defendant, a police officer of Burley, Idaho, who on the day in question was acting Chief of Police.
The complaint sets up two separate causes of action. In the first cause of action damages were sought for the unlawful arrest and assault and battery committed upon the respondent, Mrs. Anderson. In the second cause of action damages were also sought for false imprisonment of said Mrs. Anderson.
The matter was tried before a jury which rendered a verdict on the first cause of action for $500 actual damages and $1000 punitive damages, and on the second cause of action for $2000 actual damages. From the judgment entered on the verdict, this appeal was taken.
About 6 o'clock P.M. on May 6, 1950, a party went to the home of the police judge in Burley, Idaho, and asked that a criminal complaint be filed against Mrs. Anderson for assault and battery. Such complaint was thereupon issued out of the Police Court, signed by the complaining witness, and the police judge issued a warrant for her arrest and endorsed thereon that it be served by day or night. The warrant was placed in the hands of appellant and another police officer who were attired in police uniforms and wearing police badges. They drove to and parked the police car in front of the 3-Forks Inn, a drive-in cafe where confections, soft drinks and beer were sold. Here they found Mrs. Anderson and arrested her between 7 and 7:30 o'clock P.M.
The testimony as to what took place in connection with and the manner of the arrest is in many material respects hopelessly conflicting. At that time she was not engaged in the commission of or attempting to commit any offense. The testimony of the witnesses for respondents is to the effect that she was not informed as to the intention of appellant to arrest her, the cause of the arrest, his authority to make the arrest, nor did he show, or attempt to show or read, or attempt to read the warrant to her; that he commanded and directed her to get in the police car and go with him, refusing to tell her where he intended to take her although she made inquiry and challenged his right and authority to take her; she further testified that when she refused to go with him he committed assault and battery upon her person, detailing the physical injuries she sustained.
The witnesses for appellant testified that Mrs. Anderson was intoxicated when located at the drive-in cafe; this she denied; that she was mean and belligerent, but that she was not physically abused although forced into the car; that she was informed of the charge against her and that all efforts to either show her the warrant or read it to her were unavailing because she would not permit them to do so.
After she was forced into the car, it was driven to the police station. She testified that at the police station she complained to the desk sergeant about the alleged physical treatment and asked that she be permitted to consult an attorney. This testimony is denied by witnesses for appellant.
The police judge was not at the police station. There was testimony that an attempt to reach him by telephone failed. Mrs. Anderson testified that no call was made while she was in the police station. It was now about 7:30 o'clock P.M. Appellant thereupon placed her in the Cassia County jail and then drove home. He made no further effort to locate the police judge or to take her before him. That same evening, about 9 o'clock P.M., Mr. Anderson, upon learning of her confinement went to the home of the police judge who then accompanied him to the county jail. Mrs. Anderson was then taken to his office. Thereafter, upon receiving a telephone call, appellant went to the office of the police judge. Mr. Anderson asked that he be permitted to post a bond and take his wife home. The police judge declined the request, asserting that she was intoxicated and that he would arraign her the following morning. Mr. Anderson challenged the opinion of the judge as to her intoxication without avail. Thereupon the judge orally ordered, in the presence of appellant, the acting Chief of Police, and another city policeman, that she be returned to the jail cell. Appellant then requested the other officer to, and he did, place her back in jail.
Mrs. Anderson was arraigned the following morning at about 9:30 o'clock. She pleaded guilty to the charge of assault and battery, paid the fine imposed, and was released from custody.
At the conclusion of the introduction of the evidence the court granted respondents' motion for a directed verdict on the second cause of action for false imprisonment, leaving to the jury pursuant to an instruction the determination of the amount of actual damages. Upon the second cause of action, respondents sought $2000 damages. The jury by their verdict in the second cause of action awarded damages for $2000.
Appellant makes two assignments of error with reference to the cause of action for false arrest and assault and battery, which will be considered first. It is urged that the court erred in striking from the evidence the criminal complaint issued out of the police court of Burley. After the complaint was received in evidence, it was read to the jury; later upon motion it was stricken from the evidence; the first cause of action was not based upon the absence of lawful authority to make the arrest but upon the proposition that defendant did not act under the warrant of arrest in the manner required by law; moreover, the warrant of arrest was received in evidence and the court instructed the jury that it was regular on its face and constituted authority for the officer to act thereunder; hence, it was for the jury to determine under the evidence whether the arresting officer acted under the authority of such warrant in the manner required of him under the statutes. Error, if any, in striking the complaint was not prejudicial.
While the manner of making the arrest is in all material respects conflicting, the jury, whose province it was to resolve the conflicts, did so under instructions which were not challenged. The arrest was made for the commission of a public offense (a misdemeanor) outside the presence of defendant officer; there was no flight, escape, or pursuit. The jury believed the testimony of respondent that no warrant was shown to her, that she was not informed of the intention to arrest her or the cause thereof, although she made request and refused to voluntarily submit; also that the officer assaulted her and used force in excess of that necessary to effect her arrest and detention.
If an officer making an arrest does not inform the person to be arrested of his intention to make the arrest, the cause of the arrest and the authority to make it, when the person to be arrested requests such, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape, such arrest is unlawful. Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957; Secs. 19-603, subd. 1, 19-608 and 19-609, I.C.; 22 Am.Jur., p. 403, sec. 71; 22 Am.Jur., p. 365, sec. 19; 100 A.L.R. 189; 4 Am.Jur., p. 45, sec. 66, note 18.
The officer making the arrest must not subject the person arrested to any more force or restraint than is necessary for such arrest and detention; State v. Wilson, 41 Idaho 616, 243 P. 359; Secs. 19-602 and 19-610, I.C.; and he is guilty of assault and battery if he uses unnecessary and excessive force; 4 Am.Jur., secs. 73-74, pp. 52-53.
It is also urged that it was error for the court to hold that the officer serving the warrant was required to look behind the endorsement thereon that it might be executed at any time during the day or night, before serving it. The court did not so hold. To the contrary, the court pointed out and instructed the jury that the warrant was regular on its face and constituted authority for the police officer to act thereunder.
It is urged that in view of the fact that Mrs. Anderson pleaded guilty to the complaint issued out of the police court and paid the fine imposed without objection as to the manner of arrest or the delay in taking her before the...
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