Elrod v. Moss

• Decision Date: 01 November 1921
• Docket Number: 1907.
• Citation: 278 F. 123
• Parties: ELROD v. MOSS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F. 123

ELROD v. MOSS et al.

No. 1907.

United States Court of Appeals, Fourth Circuit.

November 1, 1921

[Copyrighted Material Omitted]

A. H Dagnall and H. C. Miller, both of Anderson, S.C. (Dickson &amp Miller, of Anderson, S.C., on the brief), for plaintiff in error.

J. William Thurmond, U.S. Atty., of Edgefield, S.C. (J. E. Marshall, Asst. U.S. Atty., of Greenville, S.C., on the brief), for defendants in error.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

In this action for illegal arrest and imprisonment and illegal search of plaintiff's automobile, the verdict was for the defendant. The importance of the questions made as to arrest and search in the enforcement of national and state prohibition laws requires a detailed statement of the evidence. There is no conflict, except as to the reputation of the plaintiff.

The record contains the statement that 'plaintiff, together with four other witnesses, testified in support of all the allegations of the complaint. ' The following is plaintiff's entire testimony:

'Mr. B. O. Elrod, plaintiff, testified that he was coming down Stump House Mountain at the time in question, when Mr. Moss jumped on his car and commanded him to stop; that he undertook to push him off the car, and Mr. Moss fell to the ground. I kept on down the road towards Walhalla, and on looking back through the glass in the back of my car I saw Mr. Gosnell on the running board of Mr. Parker's car. I was running 10 or 15 miles per hour around those sharp curves. The Parker car caught up with me. Then Mr. Gosnell commanded me to stop, and I did so. I would not permit Gosnell to search my car with a John Doe search warrant; and he proceeded to ride with me to Walhalla. I have made several trips up to Tunnel Hill. About one year and a half or two years ago, I was constable of Anderson county. I get my liquor from blind tigers around home. I was an officer of the law, and purchased a pint or so of liquor at different times. The last liquor I bought from blind tigers was six months ago, about a pint. I purchased whisky from a blind tiger about last Christmas, may have had a quart, but do not remember what it cost me.'

The undisputed testimony on behalf of the defendants was as follows:

J. G. Mitchell, a rural policeman of Oconee county, having 'information that plaintiff was hauling whisky,' on May 18, 1920, saw him 'going towards the mountain.' Thereupon he made an affidavit before Magistrate W. M. Dillard that he was--

'informed by W. S. Bearden, and verily believes from such information and his own observations, that in one Ford roadster car driven by Constable Elrod, wherever met in the public highway in Oconee county, there is now deposited, stored and kept contraband liquors, in violation of law, to wit, jugs, kegs, bottles, etc., and that said intoxicating and contraband liquors are kept, stored, and deposited by Constable Elrod car, his aiders and abettors, without a permit, in violation of the laws of the state.'

The magistrate issued a warrant, directed to the sheriff of Oconee county or any constable in these words:

'Whereas, it appears to me, W. M. Dillard, a magistrate in and for the county and state above named, by the information of J. G. Mitchell, that the following contraband intoxicating liquors are now unlawfully in the possession, storage, and keeping of, and on the premises occupied by Constable Elrod Ford car, in the state and county above named, the said place being Constable Elrod roadster car driven by him, to search car wherever met in Oconee county, in or near the town or city of Westminster, and that the said J. G. Mitchell has probable cause to believe, and is informed and doth believe, that the said contraband liquors so illegally kept are in the house (or other place appurtenant thereof) of the said Constable Elrod aforesaid, and there diligently, by day, search for the said contraband liquors, and if the same or any part thereof shall be found upon such search, that you bring the said liquors so found, and also seize and bring all vessels, bar fixtures, screens, bottles, glasses, and appurtenances apparently used, or suitable for use, in and about such liquors, take a complete inventory of the same, and deposit the same with the sheriff, which said articles are there to remain, to be disposed of as required by the provisions of the dispensary laws.'

On the same day Mitchell and the defendant Moss, a state constable, waited about two hours on the road for plaintiff, but he failed to return. Mitchell left the warrant with Moss. Moss was on the lookout to execute the warrant from that time, but did not find plaintiff in Oconee county until June 25, 1920. On that day, having information that plaintiff had again gone to the mountain, Moss and the defendant Gosnell, a federal prohibition officer whose assistance Moss had requested, waited on the mountain for plaintiff's return. Moss thus describes what followed:

'Mr. Elrod, he drove around to where I was in the road, in his Ford roadster, going about 7 or 8 miles an hour. As Elrod pulled up in the road, then I said to him that I have a search warrant for you and to stop that car, but he kept going faster. The search warrant was in my coat pocket in my car 10 or 12 feet away from me. I then jumped on the running board of his car and after I told him again to stop the car, he speeded up, and I reached over to switch his engine off. When I did that he struck me right here in the stomach like, and knocked me off on the left side of the car, and pretty nearly knocked the life out of me. I then hollered to Mr. Gosnell, who was down the road a piece, that this man had liquor in his car, and had knocked me off and nearly killed me, and to catch him. Mr. Gosnell pursued Mr. Elrod. I sat there 10 or 15 minutes and got sicker and sicker, finally vomited, then lay down on the ground on the side of the road, and rode to Walhalla in a passing automobile with a young lady and young man, leaving my car and coat and search warrant for Elrod's car on the mountain side, because I was unable to operate my car. Upon reaching Walhalla, I first went to the doctor and had him fix me up, and then went on down to the jail, and found Mr. Gosnell and Mr. Elrod. When Elrod knocked me off his car, he had speeded up to 15 miles an hour, and the distance from where I was knocked off his car to the point where I boarded it 112 steps. I never had the paper in my pocket on the running board, when I called to plaintiff to stop his car and bent over to switch off his engine. When we searched plaintiff's car at Walhalla we found no whisky.'

Gosnell gives this account:

'He drove by Mr. Parker's car, and right at that time Mr. Moss jumped on the car, and he drove right on by Mr. Parker's car, and Mr. Moss reached over as if to turn off the switch of the engine, and Mr. Elrod Knocked him off. After Mr. Elrod knocked Mr. Moss off the moving automobile, Mr. Moss hollered to me to catch that man; he has got liquor in his car and nearly killed me. I called to Mr. Parker to bring his car and drive me down the mountain, and I jumped in the car with Mr. Parker. We went on down the road after the Elrod car. I could see it in front of us. Finally we got close to the Elrod car, and Elrod, and Elrod looked back, saw that we had him, and he then threw a package out of his car on the left-hand side of the road. I had my gun in my hand, and I finally caught up with the Elrod car, and told Mr. Elrod that we had a warrant to search his car; that Mr. Moss had the warrant. He said I could not search his car. I informed Mr. Elrod that I had a John Doe warrant, but he said I could not search under the John Doe warrant, and I did not search his car under it. I did not arrest him for assault and battery on Mr. Moss. I held Mr. Elrod to see how Mr. Moss was getting along, and because Mr. Moss told me Mr. Elrod had liquor in his car. I held him, to see if Mr. Moss wanted to make any charges against him. At that time he started to move out of the car on the left-hand side, and I told him to sit still, and grabbed him on his arm, 'I will hold you, to see how Mr. Moss is.' I put my hands on him, and told him to sit in that car and to consider himself under arrest.'

Some witnesses testified that plaintiff's reputation as to dealing in whisky was good; others, that it was bad. Evidence as to the reputation of the plaintiff for peace and good order was not responsive to any issue made by the testimony, and was properly excluded.

Since the plaintiff sought to recover punitive damages on the charge that the tort alleged was maliciously committed, it was competent for witnesses to testify that plaintiff had been selling contraband liquor and that they had communicated that fact to the defendants.

Alexander sheriff, testified he communicated to defendants information he had that plaintiff was transporting liquor. The District Judge properly refused to require him to disclose the source of this information. Vogel v. Gruaz, 110 U.S. 311, 316, 4 Sup.Ct. 12, 28 L.Ed. 158; In re Quarles, 158 U.S. 532, 536, ...