Crosswhite v. Barnes

• Decision Date: 18 September 1924
• Citation: 124 S.E. 242
• Parties: CROSSWHITE . v. BARNES. WITT . v. SAME.
• Court: Virginia Supreme Court

124 S.E. 242

CROSSWHITE .

v.BARNES.

WITT .

v.SAME.

Supreme Court of Appeals of Virginia.

Sept. 18, 1924.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Battery.]

Error to Circuit Court, Washington County.

Actions by Mrs. Effle Barnes against W. T. Crosswhite and against J. D. Witt, respectively. Judgment for plaintiff, and defendants bring error. Affirmed.

George M. Warren and Donald T. Stant, both of Bristol, for plaintiffs in error, L. P. Summers and H. E. Widener, both of Abingdon, for defendant in error.

BURKS, J. By consent of parties,.these two cases were heard at the same time in the trial court, and the same verdict and judgment were entered in each. By similar consent, they are likewise heard in this court, and only one record has been presented and printed. In each case there was a verdict, and judgment for the plaintiff for $500.

A warrant for the arrest of Mrs. Effie Barnes, for a misdemeanor, had been issued by the police justice of the city of Bristol, Va., and placed In the hands of W. T. Crosswhite, chief of police of the city, for execution. The center of State street in said city is the dividing line between the states of Virginia and Tennessee. Mrs. Barnes lived on the Tennessee side of the city.

On July 6, 1923, Crosswhite and City Sergeant J. D. Witt (the defendants in trial court) set out to execute this warrant. Crosswhite had on his uniform of policeman, and Witt was dressed In plain clothes. Crosswhite, to whom the warrant of arrest was addressed, left the warrant in his desk at the courthouse. When the officers first saw Mrs. Barnes, she was driving down State street, on the Virginia side, in her automobile, in which she had four young children and a lady companion; the ages of the children ranging from 12 years down.

There is serious conflict in the testimony as to what then took place, but there was abundant evidence to support the instruction of the court which is the chief controversy between the parties.

Mrs. Barnes' account of what took place was as follows:

"On the day of this occurrence I was out driving my car, with my four little children with me, the oldest being 12 years old. I had done some shopping in Bristol, and was driving down the north side of State street, on the Virginia side, at a moderate speed, when an automobile turned into the curbing right ahead of me. I did not know Mr. Witt, but knew Mr. Cross-white was a policeman, at the time, but a man whom I afterwards found out to be Mr. John 1». Witt got out of the car and came to my car door and opened the door and took hold of me by the arm, and said, 'Get in my car.' I refused to go, and told him I would not go anywhere without my man (meaning my husband), and he said, 'We don't want your man; we want you, and you are going.' Mr. Crosswhite had come up in the meantime, and I asked him to show me his warrant, and he said he did not have to do so, and that 'you are going to the courthouse.' Mr. Crosswhite got on the running board of the car, and I started the car down State street from King street to Commonwealth avenue, which is one block, and when I got to Commonwealth avenue I started to turn the car to the south side of the street and go to my husband's store, where he was work ing, which is in Tennessee, but he (Mr. Cross-white) took hold of the steering wheel and steered my car into Commonwealth avenue, and said, 'You are going to the courthouse.' I said, T am not going anywhere without my man (meaning my husband).' Mr. Crosswhite then told Miss Bell, who was seated in the front seat of the car with me, to get out of my car, and I held her and told her not to get out, and then Mr. Crosswhite climbed into the front. seat of my car and sat on Miss Bell's lap, and he told Mr. Witt to get in the car and drive us to the courthouse, and Mr. Witt got into the. car and tried to run it, but could not start it, and got out. Then Mr. Crosswhite asked a man by the name of Shettle, who was working on the street, to get in my car and drive it. Shettle, a man whom I had never seen before, got into my car. pushed me out of the way and over on Crosswhite, and tried to drive the oar, but every time he would start the engine I would shut it off. I refused to allow any of them to drive my car. Mr. Crosswhite tried to pull me loose from the steering wheel and the steering gear, and in doing so he put his arms around my shoulders and pulled me. He took hold of my leg and left a very large bruise on it. He, in his efforts to take me out of the car, exposed my person. Finally some one suggested that I send for my husband, who was just two blocks away at his place of business, and my oldest child, a little girl, ran to her father's place of business, and in a few minutes my husband appeared, and when Mr. Crosswhite saw him coming he got out of the car and we then drove around to the Virginia courthouse.

"In this scuffle Mr. Crosswhite took me by the wrist and almost broke my arm, and did break my wrist watch, and when I told him what he had done he said he did not care anything about my watch. He had me around the neck and ahold of me as near all over as I can tell you. I told him that I would die before I would go to the courthouse without my husband, and he said. 'You will die then.' I heard Mr. A. D. L. Short ask him the question where my husband was, and Mr. John D. Witt said to him, 'To hell with her husband; we want her.' After I sent my little daughter for my husband, then it was for the first time that Mr. Crosswhite agreed to allow me to telephone for my husband."

Mrs. Barnes further testified that the reason she refused to go with the officer was that she did not know what it was all about, and that she asked Mr. Crosswhite, at King street, to show her his warrant, and he said he did not have to do so, but that she had to go with him to the courthouse. When her husband came up, he got into the car and drove it to the courthouse, where Mrs. Barnes was released on bail.

At the subsequent trial of Mrs. Barnes on the warrant issued against her, she was convicted and fined $50. She was also fined $10 for resisting an officer.

After the termination of these proceedings, Mrs. Barnes brought separate actions against Crosswhite and Witt for illegal arrest and for assault and battery, in which were rendered the judgments herein complained of.

There were several minor objections tothe rulings of the trial court, in reference to the time and manner of giving the instructions, as well as to their phraseology, but the real fight was over the correctness of the following instruction given at the instance of the plaintiff, Mrs. Barnes:

"The court instructs the jury that as a matter of law an officer has no right to make an arrest for a misdemeanor without a warrant, which warrant he must have with him at the time he attempts to make the arrest, unless it be for a misdemeanor committed in the presence of the officer, and the court tells the jury that if, in this case, they believe from the evidence that the defendants attempted to arrest the plaintiff charged with a misdemeanor, and that, at the time of said attempt to arrest her, they did not have a warrant for the plaintiff in their possession, then the court tells the jury that their action was* unlawful and they were without authority to interfere or molest the plaintiff in any way; the court further tells the jury that the warrant for the arrest of the plaintiff only charged her with a misdemeanor."

The powers and duties of an officer making an arrest for a past misdemeanor have been frequently the subject of discussion by the courts, but they have not always reached the same conclusion.

In many of the cases, the preservation of the liberty of the citizen and the sanctity of his person are regarded as essential to the safety and well-being of society, while others hold that that end will best be attained by according to officers the fullest protection in the discharge of their duties, and requiring the citizen to take notice of their insignia of office, and presume, at least prima facie, that they will not exceed their powers.

The law is so jealous of the sanctity of the person that the slightest touching of another, or of his clothes, or cane, or anything else attached to his person, if done in a rude, insolent, or angry manner, constitutes a battery for which the law affords redress. 2 Bish. New Criminal Law, § 72. An officer, therefore, who would justify laying hands on a person for the purpose of making an arrest, must come protected by the shield provided by law.

A felony is so serious a violation of law that an officer may, without a warrant, arrest one on reasonable suspicion of his having committed a felony, and he will be protected even though no felony has been committed, if he had reasonable ground for his belief. Beale's Crim. PI. & Pr. § 20. Not so, however, of a past misdemeanor. The text-books generally state, and many cases hold, that it is necessary not only that a warrant of arrest should have been issued, but that the officer making the arrest shall have it with him and show it on request. In Beale's Crim. PI. & Pr. § 18, it is said: "An officer arresting on a warrant must have the warrant with him, and must show it on request." In 1 Bish. New Crim. Proc. § 190 it is said: "To justify an arrest under a warrant, the officer must have it in possession; as, if though delivered to him, he leaves it at his office or station house, it will not protect him." In 2 R. C. L. 465, § 23, speaking of misdemeanors not committed in the presence of the officer, it is said: "The officer should have the warrant in his actual possession in order to justify the arrest, and if he does not have it, although it has been duly issued, an officer making an arrest may not be protected by it." In 3 Cyc. 876, it is said the officer, in a case of this kind, has no "right to make an arrest unless he has the warrant with him at the time, even though the...