Carlisle v. City of Laurel

• Decision Date: 02 December 1929
• Docket Number: 28168
• Citation: 124 So. 786,156 Miss. 410
• Court: Mississippi Supreme Court
• Parties: CARLISLE et al. v. CITY OF LAUREL et al

124 So. 786

156 Miss. 410

CARLISLE et al. v. CITY OF LAUREL et al

No. 28168

Supreme Court of Mississippi

December 2, 1929

Division A

Suggestion of Error Overruled March 24, 1930.

APPEAL from circuit court of Jones county, Second district, HON. TOM TAYLOR, Special Judge.

Action brought in a county court by H. M. Carlisle and others against the city of Laurel and others for false imprisonment and unlawful assault and battery. Judgment for plaintiff was affirmed by the circuit court, and defendants appeal. Judgment modified, and, as modified, affirmed.

Judgdment affirmed.

W. S. Welch and Ellis B. Cooper, both of Laurel for appellants.

Instructions embodying the following principals of law were improperly refused: Where an officer has a right to make an arrest he may use whatever force is reasonably necessary to apprehend the offender. If the offender resists arrest, the officer may use such force as may be required under the circumstances to overcome the resistance, but he cannot use violence when no resistance is offered, or use force or violence disproportionate to the extent of the resistance offered.

2 R. C. L., sec. 28.

An instruction placing burden of proof on plaintiff to show that he was not violating the law at the time of his arrest or that the arrest was made in an unlawful manner should have been granted.

Instruction informing jury that if officer had good reason to believe that person was committing a crime he was justified in making arrest was improperly refused.

Judgments are certainly conclusive. A criminal court adjudicates the guilt. It definitely establishes guilt. A civil case arises wherein the guilt is material, and the adjudication of guilt should be conclusive.

The evidence did not justify jury in finding against appellants for the sum of money in appellee's pocket at the time of his arrest.

Collins & Collins, of Laurel, for appellees.

A court is permitted to rectify an error made in the heat of a nisi prius trial and counsel cannot refuse to accept at the hands of a trial court full reparation of an error committed, counting upon the chances of victory and failing of the victory, count on reversal for an error which he refused to have set right.

A. & V. R. R. Co. v. Lowe, 19 So. 96.

All instructions given in a case, both for the plaintiff and defendant are to be considered together, one as supplementing or modifying another; and if, when so considered and interpreted, they present the law applicable to the case fully and fairly, the court will not reverse for giving of a single instruction, which, taken alone, is not free from criticism.

Haynes-Walker Lumber Company v. Hankins, 141 Miss. 55, 105 So. 858; Gibson v. Wineman & Son, 141 Miss. 573, 106 So. 826; Mutual Life Ins. Co. v. Vaughn, 125 Miss. 369, 88 So. 11.

An instruction requiring plaintiff to prove that he was not violating a city ordinance and that policeman undertook to arrest him in an unlawful manner was properly refused because policemen have no right to arrest without a warrant for the violation of every city ordinance, unless there is a city ordinance giving them that authority, since all violations of city ordinances are not indictable offenses.

Letlow v. United States Fidelity & Guaranty Co., 83 So. 81.

An instruction telling the jury that if policeman believed or had reason to believe that plaintiff was violating any law or city ordinance they should find for defendants was properly refused because the crime for which arrest is made must be an indictable offense or a misdemeanor committed in the officers presence, before an arrest can be made without a warrant.

A judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action, especially where the civil suit is for damages occasioned by the offense of which the party stands convicted.

OPINION

McGowen, J.

Anderson, the appellee, brought suit in the county court of Jones county against Owens and Carlisle, policemen of the city of Laurel, for false imprisonment and unlawful assault and battery inflicted by the policemen upon him. The United States Fidelity & Guaranty Company, which was on the bond of Owens, was joined in this suit to the extent of the amount of the bond, two hundred and fifty dollars. The jury returned a verdict for five hundred and twenty-two dollars, and all parties defendant in the court below prosecuted an appeal to the circuit court, where the case was affirmed, from which finding an appeal was taken to this court.

The general issue was pleaded, in addition to other pleadings which it is unnecessary to detail, save in one particular. The United States Fidelity & Guaranty Company filed a plea to the effect that it had executed a bond for the policeman, Owens, and had paid two hundred dollars of this two hundred and fifty dollars principal amount of the bond that it had been forced to pay this on a judgment rendered against the policeman Owens and itself.

It is unnecessary to detail the facts. On December 22, 1928, on a Saturday night, in front of the Woolworth store in the city of Laurel, according to the plaintiff's testimony and that of his witnesses--and there were several--the Woolworth store and the street in front thereof being crowded with Christmas shoppers, these two policemen approached Anderson, who was engaged in a private conversation with a friend, and while he was standing peaceably on the street, thus engaged, one of the policemen caught and held him, while the other struck him a terrific blow on the head with a policeman's club or "billie." They thrust him into jail, refusing to give him a chance to make bond, and kept him there until some time before day the next morning. This occurred about 7:30 o'clock Saturday evening.

On the other hand, the two policemen and their witnesses--and there were quite a number of these witnesses--testified that Anderson was drunk and cursing in a public place; that Carlisle caught him by the arm, telling him that he was under arrest, and that he "made fight" and struck the officer; their testimony being to the effect that Anderson was a "bad actor," and that some force was necessary to effect his arrest. The officers said they refused to discharge him because he was drunk. They did not claim to have a warrant for his arrest. On the other hand, the record shows that Anderson was arrested and beaten up at a time when no warrant had been issued for his arrest; the record showing that he made affidavit against him after confining him in the jail.

The verdict of the jury was for five hundred and twenty-two dollars. The judgment against the United States Fidelity &amp Guaranty...