Berry v. Bass

Decision Date03 November 1924
Docket Number26036
Citation157 La. 81,102 So. 76
CourtLouisiana Supreme Court
PartiesBERRY et al. v. BASS et al

Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Thos. F. Porter, Jr., Judge.

Actions by Mrs. Louis Berry and Laussard Dupuy against John Bass and another. From judgments for plaintiffs in unsatisfactory amounts, they appeal.

Reversed and rendered.

Modisette & Adams, of Jennings, for appellants.

J. H Heinen and Miller & Miller, all of Jennings, for appellees.



These are two cases, consolidated for trial, in which Mrs. Louis Berry and one Laussard Dupuy seek to recover damages in solido from John Bass and one John Fletcher respectively mayor and town marshal of the town of Lake Arthur. From a judgment in favor of Dupuy against both defendants for $ 5 for false arrest (i. e., without a warrant), and another in favor of Mrs. Berry against Bass, alone, for $ 20 for false imprisonment. Both plaintiffs have appealed, seeking to have said judgments increased, and both defendants have answered said appeal, praying that both judgments be reversed in toto.


The practically undisputed facts of this case, so far as they are pertinent to the issues involved, are substantially as follows:

Two itinerant picture dealers (husband and wife) complained verbally to the mayor that, in a controversy over the delivery of some pictures, plaintiffs had cursed and abused them; whereupon the mayor verbally directed the marshal to notify the plaintiffs (that being the usual proceeding in such cases) to appear before him, the mayor, on the next morning, and answer to a charge of disturbing the peace.

The marshal did as directed; he notified both plaintiffs to appear before the mayor next morning. This they did, and were both tried and adjudged guilty. Dupuy was fined, and his fine was paid. Mrs. Berry was sentenced to 24 hours' imprisonment, without alternative of a fine; but was released after some two hours' detention, when the mayor was told that she was not in good health.


As to the alleged false arrest:

The trial judge says:

"There is, however, this difference in the two cases. There was no claim made that Mrs. Berry was arrested prior to her trial. * * *"

But we do not see this difference.

Mrs. Berry testified:

"Question: When you were arrested, what did the marshal say to you? (Objected to because it assumed a fact not proved. Objection overruled.) Answer: He told me to report to the pressing shop (mayor's court) because I had trouble with a woman that bring some pictures in my house."

Dupuy testified:

"Question: You have known Mr. Fletcher, the marshal, for a long time? Answer: Yes.

"Question: He didn't arrest you -- he never touched you? Answer: No; he tell me to come to court, 9 o'clock next morning."

The marshal testified:

"Question: I will ask you if your notices or summons to these people were such as you generally use in bringing people into court? Answer: Yes, sir.

"Question: You went to their house and told them that they should appear at the mayor's court at a certain hour for a certain purpose? Answer: Yes, sir.

"Question: You didn't have any paper (warrant) with you? Answer: No."

The trial judge says (in Dupuy's case):

"Upon receiving this instruction (verbally, from the mayor) defendant, the marshal, rode around on horseback to the plaintiff's (Dupuy's) home, and, without getting off his horse, told the plaintiff (Dupuy), who was about 12 feet distant, and in his yard, to appear in court the next morning for trial on a charge of disturbing the peace. At the appointed time and place plaintiff appeared for trial."

We hold that the foregoing facts do not show an arrest.

In 5 Corp. Juris, 386, verbo "Arrest," § 2, it is said that:

"The custody or control, the assumption of which is involved in an arrest, imports actual restraint or detention; the mere utterance of words indicative of an arrest being insufficient (except perhaps when followed by submission), as is also the reading or verbal proffer of the warrant without more, or mere personal service of process."

It must be said, however, that there is conflict between the authorities as to whether mere compliance with a notice or summons to appear before a magistrate is such a "submission" as to constitute an arrest. 5 Corp. Jur. 386, 387, notes 8 -- 20. And this court has once held that there had been an arrest, where defendant had called upon a deputy sheriff, who happened to be present, to arrest plaintiff, and "the deputy sheriff told plaintiff to consider himself under arrest and to report at the justice of the peace court the next morning at 9:30." Thomas v. Henderson, 125 La. 292, 51 So. 202. But not one authority is cited, nor a single reason given for the holding.

Now, we are quite ready to admit that the actual use of force is not necessary to constitute an arrest; but the intention to arrest, i. e., to take into custody, must be there, and must be evidenced by some unequivocal act, as by keeping the arrested party in sight and controlling his actions. But one person can no more arrest another by simply telling him to "consider himself under arrest" and then turning on his heel and leaving that person free to go his own way, than one can commit a homicide by merely telling another to consider himself dead. On the contrary, the very purpose of merely notifying a person charged with some offense simply to appear before a magistrate is precisely to avoid arresting him therefor; it is precisely not to deprive him of his liberty for the time being; it is for the very purpose of leaving him master of his own movements until the time fixed. And the person so notified or summoned is no more under arrest than a witness summoned or notified to appear before a magistrate on a given day. Nor is the fact that he is told to "consider himself under arrest" any more potent to make him be under arrest, than his being told to consider himself an emperor's son to make him a crown prince.

And whether or not such notice or summons be complied with, and, if so, whether such compliance be or be not because of fear of the consequences, whatever those may be, should he fail to comply, is wholly beyond the present question; since the fact remains that such person is not under arrest for the time being, but is master of his own movements.

In Barry v. Adamson, 6 B. & C. 528, 13 E.C.L. 242, 108 English Reprint, 546 (cited 5 Corp. Jur. 386, 387, notes 8a, 19c), where the officer simply gave notice of the writ and asked defendant to fix a time for giving bail, it was held that there was no arrest, although defendant complied with the request of the officer, and afterwards appeared and gave bail.

In Connor v. Spark, 6 Modern, 173, 87 Eng. Rep. 928; 1 Salkeld, 79, 91 Eng. Rep. 74 (cited in 5 Corp. Jur. 386, note 10a), the court said:

"Here was no arrest, the bailiff having not laid hands on the defendant; for his shewing the writ, and pronouncing the word 'arrest,' without touching him, was no more an arrest than it would be one if a bailiff sees a man look out of a window, a pair of stairs or two high, and tells him he has a writ for him, and says that he arrests him."

In Arrowsmith v. Le Mesurier, 2 Bos. & Pul. New Rep. 211, 127 Eng. Rep. 605 (cited 5 Corp. Jur. 387, note 19b), Lord Mansfield, C. J., said:

"I can suppose that an arrest may take place without an actual touch, as if a man be locked up in a room; but here the plaintiff went voluntarily before the magistrate. The warrant was made no other use of than as a summons. The constable brought a warrant, but did not arrest the plaintiff. How can a man's walking freely to a magistrate prove him to be arrested?"

And although this ruling was dissented from in Warner v. Riddiford, 4 Com. Bench, N. S. 180, 93 E.C.L. 180, 140 Eng. Rep. 1052 (cited 5 Corp. Jur. 387, note 19b), yet we think the ruling sound to the extent thata mere notice or summons to appear before a magistrate, does not amount to an arrest, even though accompanied by an admonition to the person so notified or summoned that he is to consider himself under arrest, and even though complied with by such person. And to the extent that Thomas v. Henderson, 125 La. 292, 51 So. 202, conflicts with this holding, it is to be considered overruled.


As to the alleged false imprisonment:

It is contended that the imprisonment of Mrs. Berry by the mayor amounted to false imprisonment, for these reasons:

(1) That said mayor had no judicial power; because section 29 of act 136 of 1898, pp. 224, 238 (establishing a "mayor's court" in cities, towns, and villages, incorporated under the provisions of that act, with jurisdiction over violations of municipal ordinances, and empowering the mayor to try all breaches of said ordinances and impose the fines and imprisonments therein provided), is violative of article 84 of the Constitution of 1898, under which said statute was passed.

(2) That the ordinance under which plaintiffs were convicted is unconstitutional and illegal on various grounds.

(3) That said ordinance did not authorize the mayor to inflict imprisonment except as an alternative for the nonpayment of a fine, and consequently said mayor exceeded his authority when he imprisoned Mrs. Berry without the alternative of a fine.

(A) Article 84, Const. of 1898, provided that the judicial power should be vested in a Supreme Court, Courts of Appeal, district courts, justices of the peace, "and in such other courts as are hereinafter provided for." And article 96, thereof, contained the following clause:

"No judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officer other than those mentioned in this title, ...

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