City of Hattiesburg v. Beverly
| Decision Date | 01 October 1920 |
| Docket Number | 21325 |
| Court | Mississippi Supreme Court |
| Parties | CITY OF HATTIESBURG, TO USE OF COSTON, v. BEVERLY ET AL |
APPEAL from circuit court of Forrest county. HON. R. S. HALL, Judge.
Action by City of Hattiesburg, to the Use of A. B. Coston, against T. W. Beverly, a policeman of the city, and the United States Fidelity & Guaranty Company, as surety on Beverly's official bond. Judgment for defendants, and plaintiff appeals. Affirmed.
Judgment affirmed.
R. L Bullard, for appellant.
Whether the plaintiff was arrested by Beverly for violating the statute against profanity was made an issue of fact before the jury.
I quote and adopt this as a better statement of the real issue than I could have made. The difficulty that Beverly finds himself in is that his evidence does not meet his side of that issue. To give his evidence the most favorable interpretation possible for him, he arrested Caston for violating the city ordinance against profanity, and the issue on the first count ought never to have been submitted to the jury. He admits that it was not his duty to arrest for a violation of the city ordinance committed in his presence, and therefore it is no justification of the arrest, even if such is the fact. Counsel's legal instinct drives him to this, but here occurs the unique ingenuity of his fallacious argument. His contention is as follows:
Beverly at the trial, put in issue the guilt or innocence of Caston on a charge of violating the statute against profanity Caston was tried upon that charge and was by the jury found gulity. Since he was guilty it was the duty of any peace officer to arrest him. Beverly is a policeman. Ergo, it was Beverly's duty to arrest him. Since it was Beverly's duty to arrest him for violating the statute the court will presume that he arrested him for violating the statute, even while Beverly's testimony and all the evidence in the case contradicts such presumption. This is his argument precisely, and it is about as logical as that used by Sir John Falstaff from which he inferred that there was such a bond of sympathy between his noble self and those two fair dames the Merry Wives of Windsor.
The question of Caston's guilt or innocence was never at issue in the trial. He was not tried therein for violating the statute against profanity, and he was not found guilty of profanity. His guilt or innocence was not even material in determining Beverly's right to make the arrest, but the policeman's object in making it was. If he, in good faith arrested Caston for violating the statute, which he, in good faith and upon good reason, believed Caston was then in the act of violating, then the fact would justify the arrest whether it turned out that Caston was guilty or not. An officer may arrest a guilty man and the fact of guilt be no justification for the arrest. He may arrest an innocent man and the fact of innocence be no ground of liability against the officer for making the arrest.
Thus we are brought back to the real issue as counsel first stated it in his brief. Whether the plaintiff was arrested by Beverly for violating the statute against profanity was made an issue of the fact before the jury.
Beverly has never yet said that he arrested Caston for violating the statute. If such had been the fact what must have been the charge that Beverly made against him pursuant to his purpose in making the arrest? What he then did is of a thousand times more probative force than anything he can now say. He declared then, by the charge he made against Caston that it was for violating the city ordinance. When asked by the chief of police, after they failed to find any whiskey, what charge he had against Caston such was his reply, and counsel confesses that arrest for such purpose is no justification of the act if without warrant. Even that charge was afterward dismissed. And to show counsel's inconsistency in another matter he tries here to justify the fact that he would not allow us to show that the city dismissed the charge because it had no evidence of Caston's guilt, even though Beverly was confessedly present at the time.
Since filing the brief in chief herein the case of Branfil v. Byrd, 84 So. 227, has been decided by this court. It must have escaped the attention of opposing counsel, for it completely answers his argument as to the second count. In that case the officer went without authority to search the premises of Mrs. Branfil. He had what he thought to be a warrant but it was void; having no other effect than if it had been a piece of blank paper in his hand. Mrs. Bramfil consented to the search, saying: "I was willing for them to go to every part." She even assisted them by showing them through. This court approved the act of the trial court in granting a peremptory instruction as to liability, saying in part:
This is precisely the contention we made at the trial that Beverly could not defend on the ground of consent, because such consent as was given was evidently given because of his official authority, and that Caston did not have to resist the officers.
Beverly's declared purpose was to search Caston's grip; look into it to see if the liquor was there which he had heard was there as he said. Such purpose was never abandoned. It was as an officer he made the demand, and as an officer he pursued his original purpose until he had fully accomplished it. When they reached the chief's office the first word Beverly said was that Caston had whiskey in his grip, that he had heard it. Then it was that Caston slung it up on the chief's desk, that inner court of the city's police power, and said, "if you think there is whiskey in there, look and see."
These facts are not only not denied by the appellee, they are the complete substance of the very claim he makes. It is his defense that he, by virtue of his official authority, compelled Caston to go with him; that he took both Caston and his grip to the very desk of the chief and there said, this man has got five quarts of whiskey in that grip, as was testified and assented to by him when he did not deny making the statement. It presents a stronger case than that of Branfil v. Byrd. Here Caston did resist until he was forced by the strong arm of the city's police power into the very heart of the lion's den. He resisted until he could resist no longer without resorting to force, and he could not fight the whole police department. As the only peaceable means of escape he said: "If you think there is any whiskey in there, look and see."
Such is the case, taking Beverly at his word. Such is the defense with which he met the case we made on the second count and we say that it should never have been submitted to the jury to find anything but the amount of damages.
D. E. Sullivan, for appellee.
This case was tried on the issue made by the first count of the declaration that plaintiff was violating no law at the time of his arrest. At the close of the testimony plaintiff requested a peremptory charge to the jury to find for plaintiff on this count, notwithstanding he had raised the issue by his declaration that he was not violating the law, at the time of the arrest, and notwithstanding defendant had joined issue with him on this point and there was a sharp conflict between the testimony for plaintiff and defendant therein.
We submit the court correctly refused this instruction. The plaintiff cannot be permitted to base his case on one theory and try it on that theory and then get the jury charged on another theory not raised by the pleadings or considered on the trial.
Plaintiff argues that defendant should have carried him before a justice of the peace when the arrest was made and not before the mayor. The question is, did the defendant have the right to arrest plaintiff at the time and not where he carried plaintiff after the arrest. Where plaintiff was carried after the arrest can have nothing to do with the legality of the arrest. But it was not unlawful to take him to the mayor. Under section 167, Constitution of 1890, all civil officers are conservators of the peace and shall be by law vested with ample powers as such. The Mayor is a civil officer. See Monnette v. State, 91 Miss. 662.
Appellant now contends in his brief that the peremptory instruction should have been given on the first count for two reasons: First: Because the arrest was not made for a violation of law, a misdemeanor against Section 1295, Code 1906, but for an alleged violation of the city ordinance. Second: That the defendant by his unlawful conduct provoked plaintiff into cursing, if he did curse.
As to the first proposition we have already called the court's attention to the fact that in plaintiff's declaration, he alleged, in order to show that his arrest without warrant was unlawful, that he was violating no law, and was neither accused or suspected of any misdemeanor.
The plaintiff did not sue the defendant for arresting him without warrant for violating a city ordinance against profanity; he sued defendant for arresting without warrant because he says he was not violating any law or ordinance. In other words, he was innocent of any crime against the state law or the city ordinance when arrested. He planted his case on this theory but when the jury...
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