Bourne v. Richardson

• Decision Date: 21 September 1922
• Citation: 113 S.E. 893
• Parties: BOURNE. v. RICHARDSON.
• Court: Virginia Supreme Court

113 S.E. 893

BOURNE.

v.RICHARDSON.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

Error to Circuit Court, Montgomery County.

Proceeding by John W. Richardson against C. H. Bourne. Judgment for plaintiff, and defendant brings error. Affirmed.

H. C. Tyler, of East Radford, and Jackson & Henson, of Roanoke, for plaintiff in error.

Jordan, Roop & Sowder, of Christiansburg, John S. Draper, of Pulaski, and Harless & Colhoun, of Christiansburg, for defendant in error.

KELLY, P. This is a proceeding by motion instituted by John W. Richardson against C. H. Bourne to recover damages for the alleged unlawful and malicious shooting of Richardson by Bourne. There was a verdict and judgment below for $3,000 in favor of the plaintiff, and the defendant assigns error.

The evidence was conflicting upon some material points, but as tending to support the verdict it may be fairly summarized as follows:

Bourne was a police officer in the city of Radford. Richardson was well known in that city, and bore the general reputation of being a "bootlegger." On two separate occasions he had pleaded guilty to a charge of violating the state prohibition law, and had accordingly been convicted, once in the circuit court of Pulaski county, and once in the corporation court of the city of Radford. At the time of this shooting a warrant for his arrest for another violation of the prohibition law had been issued, but not executed. This warrant, which made no reference to the prior convictions and charged merely a misdemeanor, was in the hands of another officer. Bourne knew of the foregoing facts, but had never seen the warrant, and did not know its precise purport. He testified that he had been advised by the commonwealth's attorney of the city that, because of the former convictions, he could lawfully arrest Richardson without a warrant. The attorney for the commonwealth testified as a witness, having been placed on the stand by the defendant, but he was not asked any question by either side as to this alleged advice, and he made no statement in regard thereto.

The shooting occurred about 8 o'clock in the evening. Richardson was on the street violating no law and creating no disturbance. His testimony as to the circumstances under which the shooting occurred is very well summed up in one of his answers as follows:

"I was going down the street; met Mr. Bourne; we happened to meet up together. 'Mr. Richardson, ' he says, 'I will have to arrest you.' I says, 'You are fooling, ain't you, Pat?' He says, 'No; I am not fooling.' I says, 'Where's your warrant?' He says, 'I don't have to have any.' I says, 'What's the charges?' He says, 'Don't have to have any.' At this time Bourne grabbed me right there, and drew the pistol with the other hand. I says, 'You got no warrant; I am not going with you, ' and pushed off from him, and got away from him. Then he shot four or five shots at me, and the last shot he shot me; and I was in 20 feet, maybe a little more or a little less, the first shot that he shot at me."

Other witnesses for the plaintiff testified substantially to the same effect, one of them saying that Bourne took hold of the flap of Richardson's coat at the time of announcing his intention to make the arrest. The account of the shooting as given by the defendant, Bourne, is altogether at variance and wholly irreconcilable in almost all respects with the account given by Richardson, but the apparent weight of the testimony is with the version given by Richardson, and the jury so found.

The shot which struck Richardson took effect in his right arm, causing painful and serious, and probably permanent injury. He sought medical treatment at a local hospital, and the physician thereafter failing to locate the bullet, administered antiseptic treatment, dressed the wound, and advised him to go immediately to a hospital in Roanoke where he could have an X-ray examination and expert treatment by a surgeon. Richardson did go to Roanoke on a train leaving shortly after the shooting, arriving there between 11 and 12 o'clock at night, but he was met at the station and arrested by Roanoke officers to whom Bourne had telephoned in accordance with advice which he testified was given to him by the commonwealth's attorney. No question was asked of the attorney for the commonwealth upon this point when he was on the stand, and he made no statement with regard thereto. The Roanoke officers would not permit Richardson to give bail and go to the hospital, but placed him in jail, where he remained until the next afternoon, when the sergeant of the city of Radford came and took him back to that city. He was then allowed bail, and, after treatment by local physicians for some weeks, went back to Roanoke, where Dr. Trout made an X-ray examination and removed the bullet.

We come now to the assignments of error.

1. The chief ground relied upon by the defendant to justify him in arresting the plaintiff without a warrant was that the latter had formerly been convicted of violating the prohibition law, and that the defendant, having reasonable grounds for believing, and in good faith believing, that the plaintiff had committed a second similar offense, had the right to arrest him without a warrant on the theory that he was guilty of a felony.

In support of this position the defendant during the cross-examination of the plaintiff introduced in evidence an order of the corporation court of the city of Radford, dated November 10, 1919, showing that, upon a plea of guilty, a certain John W. Richardson had been convicted in that court on a charge of violating the prohibition law, and then asked the plaintiff whether he was the same John W. Richardson named in that order of conviction. The plaintiff admittedthat he was the same man, and his counsel asked him to explain to the jury why he entered the plea of guilty. To this question counsel for defendant objected, but the court permitted the plaintiff to answer, and the substantial purport of his reply was that he was in fact not guilty, and had so pleaded on bis first trial, when there was a hung jury, hut subsequently, merely as a matter of economy, he pleaded guilty, finding that by doing so and paying a fine of.$50 he could save an attorney's fee of $150, which his counsel would charge him for defending the case. (The order of conviction shows that the jail sentence was suspended during good behavior.)

It is insisted that the court erred in permitting this explanation by the plaintiff, and in this view we concur. The judgment of conviction was conclusive for the purposes for which the defendant offered it in evidence. But this error, in our opinion, cannot be regarded as prejudicial, because the jury clearly was not influenced by it It did not enter into the decisive issue upon which the verdict necessarily turned, as will now appear.

The outstanding difficulty in the way of the defendant in this case was the fact that he was not armed with a warrant. His defense was that he attempted to arrest the plaintiff because he was drunk and disorderly, and also because he knew of his former convictions, and of the unexecuted warrant against him for a further violation of the prohibition law, and therefore believed in good faith that he was guilty of a felony. If the jury believed that either or both of these reasons actuated the defendant in making the arrest, he would have been justified in proceeding without a warrant but they evidently believed neither. The alleged intoxication of the plaintiff depended for its proof on the testimony of the defendant alone, and was contradicted by much evidence to the contrary. This branch of his case was very lightly touched upon at the trial, and none of the seven instructions asked for and given on his behalf placed any particular emphasis thereon. The defense really relied upon was, as above indicated, that the defendant knew of the plaintiff's former conviction and of his subsequent alleged violation of the law, and therefore believed in good faith that the plaintiff was a felon, and was making the arrest for that reason. The instructions of the court specifically and emphatically told the jury that, if this contention was true, no warrant was necessary. The jury evidently did not believe that he was telling the truth when he testified that he was in good faith trying to arrest the plaintiff as a felon, but their failure to believe this was manifestly in no way brought about by the erroneous evidence here in question. At the time of the arrest the defendant's knowledge of the previous convictions was unaffected by any attempted explanation by Richardson as to why he had pleaded guilty, and it would hardly be reasonable to suppose that the jury attached any importance to this subsequent explanation in determining the question of Bourne's good faith in acting at the time on such knowledge as he then possessed. It is perfectly clear that the jury simply rejected his contention that he was arresting the plaintiff as a felon, and they undoubtedly did this because the evidence tended strongly to show that, when the plaintiff was tried and acquitted shortly after the shooting upon a charge of resisting arrest, the defendant then claimed that he was arresting him for drunkenness, and made no reference to any felony charge. Jurors are presumed to be men of sense and integrity, and as such they could not under the plain instructions of the court in this case have found against the defendant upon the question of his right to arrest for the felony without a warrant if they believed his testimony. Upon this question the subsequent inadmissible explanation of the plaintiff as to his former conviction could have had no effect. What the jury could and did do under the evidence and instructions, unaffected by the subsequent explanation, was to find that Bourne was not telling the truth when he said that he was in good faith proceeding to arrest Richardson for a felony. To make this clear, we set out...