Cave v. Cooley.

• Decision Date: 15 September 1944
• Docket Number: No. 4816.,4816.
• Citation: 152 P.2d 886,48 N.M. 478
• Parties: CAVEv.COOLEY.
• Court: New Mexico Supreme Court

48 N.M. 478

152 P.2d 886

CAVE

v.COOLEY.

No. 4816.

Supreme Court of New Mexico.

Sept. 15, 1944.Rehearing Denied Nov. 21, 1944.

Appeal from District Court, Eddy County; James B. McGhee, Judge.

Action by Jess Cave against Sam Cooley to recover damages for false arrest and malicious prosecution. From a judgment for defendant, the plaintiff appeals.

Affirmed.

In action for false arrest against state policeman based on plaintiff's arrest on charge that he drove his truck past scene of an accident at excessive speed and disregarded officer's signal to stop, an instruction that plaintiff could recover only if jury believed from a preponderance of evidence that it did not reasonably appear to defendant officer that plaintiff was violating state traffic laws or that he did not act as an ordinarily reasonable and prudent man would act under the circumstances as they existed was proper. 1941 Comp. § 58-612.

G. A. Threlkeld, of Roswell, for appellant.

Robert W. Ward, Asst. Atty. Gen., for appellee.

BICKLEY, Justice.

Plaintiff (appellant) sued defendant (appellee) to recover damages on each of three causes of action. 1. False arrest. 2 and 3, damages for malicious prosecution.

The verdict of the jury was in favor of the defendant on each of the causes of action and judgment in favor of defendant followed, whereupon plaintiff appealed.

While plaintiff was driving a truck on a public highway he was arrested by the defendant, a state policeman, near the scene of an accident which had occurred at the mouth of a lane leading off the main traveled portion of the highway at which point the defendant policeman was located. Defendant claimed that plaintiff was driving at an excessive and unlawful rate of speed and in a manner greatly dangerous to the safety of persons and property upon the highway. The defendant policeman claimed that he blew his whistle as a signal for plaintiff to stop but that plaintiff had passed the scene of the accident at such excessive speed, either not hearing or disregarding the officer's signal, and that the defendant policeman thereupon got into his car, pursued the plaintiff and arrested him.

The plaintiff stated that he was stopped 2.3 miles from the scene of the accident, denied that he was driving said truck at an excessive rate of speed or in a manner dangerous to human life or property, or that he refused to slow down or stop in response to any signal blown by defendant and denied that he heard any whistle blown. The verdict settled these fact issues in favor of defendant. The arrest was made without any warrant upon the claim of defendant policeman that the offense was being committed by the plaintiff in defendant's presence.

With reference to the first cause of action, the court in effect instructed the jury that they could award damages to the plaintiff if, and only if, they believed from a preponderance of the evidence that it did not reasonably appear to the defendant officer that the plaintiff was violating the traffic laws of the State of New Mexico, or that he did not act as an ordinarily reasonable and prudent man would act under the circumstances as they existed.

Of these instructions the appellant complains and presents the view that in order for an officer to be protected in making an arrest without a warrant of a person charged with a misdemeanor, such misdemeanor must actually be committed in the presence of the officer and that the officer must determine at his peril whether an offense has been committed or not. The appellee states on the other hand that an arrest for a misdemeanor may be made without a warrant where the officer has reasonable cause to believe that certain misdemeanors have been committed in his presence.

In Wisconsin Law Review, Vol. 1939 p. 385, is an article on “Arrest Without Warrant” in which the writer says:

“When an officer arrests a person whom he clearly has no common law or statutory right to arrest, there is no question as to his liability. Such would be the case, for example, if an officer deliberately arrested an innocent bystander who had committed no violation of law, or if an officer without process arrested an offender for a misdemeanor not committed in the officer's presence. But a closer question is whether the officer is liable if he arrests one whom he honestly believes is committing an offense in his presence, but who actually is not violating the law. Some jurisdictions hold that the officer must actually know an offense is being committed and would hold him liable in such circumstances. The majority of jurisdictions, however, hold that it is not essential that the officer arresting without a warrant absolutely know that an offense is being committed in his presence, and rule that a bona fide belief on his part that it is being committed is enough.”

[1][2] This appraisal as to the majority holding seems to be borne out by the citations to the text of similar import in 6 C.J.S., Arrest, § 6, p. 595. One of the cases cited in the C.J.S. text, supra, is Garske v. United States, 8 Cir., 1 F.2d 620, 622, where the court said:

“It is the well-established doctrine now throughout the United States that for a crime, which they have probable cause to believe is being committed in their presence, though it be a misdemeanor, duly authorized peace officers may make arrest without a warrant. The probable cause which will justify arrest for a misdemeanor without a warrant must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly to be drawn from the testimony of the senses. *** The courts very generally hold that an offense is committed within the presence of an officer when his senses afford him knowledge that such is the fact. *** There must be a probable cause and a reasonable foundation for the judgment of the officer that a crime is being committed.”

Since the publication of the C.J.S. text, the court of appeals of Ohio in Ryan v. Conover, 1938, 59 Ohio App. 361, 18 N.E.2d 277, 279 said:

“An officer may arrest a person when circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence. Section 13432-1, General Code; Bock v. City of Cincinnati, 43 Ohio App. 257, 183 N.E. 119; 6 Corpus Juris Secundum [Arrest, § 6, p.] 595; 3 Ohio Jurisprudence 140, Section 11. And this is true even though no offense has actually been committed. Consequently no civil liability attaches to him on account thereof in either circumstance.”

All that Sec. 13432-1, General Code of Ohio, cited, says is:

“Officer may arrest on view. A sheriff, deputy sheriff, marshal, deputy marshal, watchman or police officer, herein designated as ‘peace officers' shall arrest and detain a person found violating a law of this state, or an ordinance of a city or village, until a warrant can be obtained.

“A constable within the limits of the township in which said constable has been appointed or elected, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law of this state or an ordinance of a village, until a warrant can be obtained.”

So, it is seen the holding of the court is not based upon express language of the statute but upon a rule of reason that the officer may act upon a bona fide belief on his part that the offense is being committed. So it is with decisions of other courts adopting this view.

[3] We think the West Virginia Supreme Court in State v. Fidelity and Casualty Co. of New York, 1938, 120 W. Va. 593, 199 S.E. 884, 887, correctly appraised the meaning of the phrase “committed in his presence.” The court said:

“A crime is committed in the presence of an officer when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe or reasonable grounds to suspect that such is the case.”

And again:

“He (the officer)...