Bank of Cottonwood v. Hood

• Decision Date: 08 June 1933
• Docket Number: 4 Div. 667.
• Citation: 227 Ala. 237,149 So. 676
• Parties: BANK OF COTTONWOOD et al. v. HOOD.
• Court: Alabama Supreme Court

149 So. 676

227 Ala. 237

BANK OF COTTONWOOD et al. v. HOOD.

4 Div. 667.

Supreme Court of Alabama

June 8, 1933

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for false imprisonment by Howard Hood against the Bank of Cottonwood and others. From a judgment for plaintiff defendants appeal.

Affirmed conditionally.

Farmer Merrill & Farmer, of Dothan, for appellants.

O. S Lewis, of Dothan, for appellee.

BROWN Justice.

The complaint as originally filed was against appellants and one Strickland for an alleged unlawful arrest and restraint of the plaintiff, and consisted of three counts, the first for false imprisonment, substantially in the form prescribed by section 9531 of the Code of 1923, form 19. The second avers that "the defendant Bank, by and through its agent and cashier M. A. Helms, and S. O. Smith, as president, on to wit: August 4th, 1929, while acting within the line and scope of his authority, and the said M. A. Helms, S. O Smith and E. J. Strickland as individuals, caused plaintiff to be unlawfully restrained of his liberty at Bonifay, in the State of Florida, on a charge of robbery, by falsely accusing plaintiff, and falsely identifying him as one of the robbers who robbed the said Bank of Cottonwood, at Cottonwood, Alabama, on the 3rd day of August, 1929, for the purpose of causing him to be restrained of his liberty, and thereby caused or instigated plaintiff's arrest and imprisonment," etc. (Italics supplied.) The third count was for malicious prosecution in Code form. Code 1923, § 9531, form 20.

Before the trial was concluded, the complaint was amended by withdrawing count 3, striking Strickland as a party defendant, and adding counts (a) and (b). Count (a), like count 1, is in the form prescribed for false imprisonment. Count (b) avers that "the defendant Bank, by and through its agent and cashier, M. A. Helms, and S. O. Smith, as president, on towit: August 4th, 1929, while acting within the line and scope of their authority, caused plaintiff to be unlawfully restrained of his liberty from August 4th, 1929, to August 9th, 1929, by falsely accusing plaintiff, and falsely identifying him as one of the robbers, who robbed the said Bank of Cottonwood at Cottonwood, Alabama, on the 3rd day of August, 1929." (Italics supplied.)

The defendants demurred to counts 2 and (b), and the demurrers were overruled.

The defendants interposed the plea of the general issue, and several special pleas. Demurrers by plaintiff were sustained to the special pleas, and the trial proceeded to judgment under counts 1, 2, (a), and (b) and the plea of the general issue, resulting in a verdict and judgment for the plaintiff against all the defendants, and from that judgment the defendants have appealed.

The case was submitted on the assignments of error, without an order of the court granting leave of severance in the assignments of error, and, under the well-established rule, we are restricted to a consideration of the alleged errors that affect the rights of all the appellants. Stacey et al. v. Taliaferro et al., 224 Ala. 488, 140 So. 748; Cook et al. v. Atkins, 173 Ala. 363, 56 So. 224.

The appellants' argument in support of the assignment of error predicated on the overruling of the demurrers to counts 2 and (b) is very meager, and under the well-settled rule might be treated as a waiver. However, the contention seems to be that the averments of these counts, when construed most strongly against the pleader, show no more than that the defendants Helms and Smith, acting in good faith and in aid of the officers of the law, through honest mistake, identified the plaintiff as one of the persons who participated in the robbery of the bank. We are not of opinion that these counts are subject to this construction. While we do not hold said counts were free from demurrable defects, they are not subject to the objections pointed out by the stated grounds of demurrer, and the demurrer was overruled without error. Code 1923, § 9479; Sanders v. Davis, 153 Ala. 375, 44 So. 979.

We take judicial notice of the historic fact that the territory constituting the state of Florida was acquired by purchase from Spain in 1819, and the common law will not be presumed to prevail in that state, in the absence of proof of its adoption. Therefore it will be presumed that the law of the forum is the law applicable to the question under consideration. Peet & Co. v. Hatcher, 112 Ala. 514, 21 So. 711, 57 Am. St. Rep. 45.

In Cunningham & Son v. Baker, Peterson & Co., 104 Ala. 160, 169, 16 So. 68, 70, 53 Am. St. Rep. 27, it was observed by this court speaking through Chief Justice Brickell, that: "As a general rule, at common law, an arrest could not be made without warrant. If a felony was committed, or a breach of the peace threatened or committed, within the view of an officer authorized to arrest, it was his duty to arrest without warrant, and carry the offender before a magistrate; or if a felony had been committed, and there was probable cause to believe a particular person was the offender, he could be arrested without warrant. * * * The matter of arrests is now the subject of statutory regulation, largely affirmatory of the rules of the common law. * * * The statutes and the corresponding rules of the common law have primary, if not exclusive, relation to the administration of the criminal laws of the state. If an arrest be legal, under what conditions and for what purposes there may be a search of the person arrested, and what things found upon his person may be taken into possession by the officer making the arrest, were the subjects of very full and deliberate examination and exposition in Ex parte Hurn, 92 Ala. 102, 9 So. 515 [13 L. R. A. 120, 25 Am. St. Rep. 23]. * * * A search of the person arrested is justifiable only as an incident to a lawful arrest. If the arrest be unlawful, the search is unlawful, and is aggravated by the illegality of the arrest.

"If a person charged with treason, felony, or other crime in another state has fled therefrom, and is found in this state, the statutes provide for his apprehension and detention to await a requisition from the executive of the state in which the crime was committed. Cr. Code, §§ 4747-4760 [Code of 1923, §§ 4165-4178]. Under these statutes, a warrant of arrest must issue from a magistrate having authority to issue such warrants. In the absence of statutes, upon common-law principles, the apprehension and detention of persons charged with crime in other states was effected through judicial officers, upon probable cause being shown by appropriate evidence. Morrell v. Quarles, 35 Ala. 544; 1 Kent, Comm. 36, 37. The intervention of a judicial officer and a warrant of arrest were deemed the more orderly, if not the only, course of legal procedure. The current of judicial decision supports the proposition that, when the matter of apprehension and detention is regulated by statute, the statutory mode of procedure must be observed, and that arrest and detention otherwise is illegal. Malcolmson v. Scott, 56 Mich. 459, 23 N.W. 166; State v. Shelton, 79 N.C. 605; Ex parte Cubreth, 49 Cal. 435; Ex parte Thornton, 9 Tex. 635; Matter of Heyward [3 N.Y. Super. Ct.] (1 Sandf.) 702; Matter of Leland [N. Y.] 7 Abb. Prac. (N. S.) 64; Matter of Rutter [N. Y.] 7 Abb. Prac. (N. S.) 67." (Italics supplied.)

This pronouncement is supported by Gray v. Strickland, 163 Ala. 344, 50 So. 152.

The decision of the question, "Whether an officer having authority to make arrests may not without warrant arrest a person in this state whom he has reasonable cause to believe has committed a felony in another state, and to have...