Ferguson v. Simmons

• Decision Date: 08 December 1931
• Docket Number: No. 21367.,21367.
• Citation: 43 S.W.2d 875
• Parties: O.J. FERGUSON, APPELLANT, v. C.O. SIMMONS, RESPONDENT.
• Court: Missouri Court of Appeals

43 S.W.2d 875

O.J. FERGUSON, APPELLANT, v. C.O. SIMMONS, RESPONDENT.

No. 21367.

St. Louis Court of Appeals. Missouri.

Opinion filed December 8, 1931.

Appeal from the Circuit Court of Madison County. — Hon. B.H. Boyer, Judge.

REVERSED AND REMANDED.

Davis & Damron for appellant.

(1) An officer may arrest, without a warrant, one whom he may have reasonable and probable grounds to suspect of having committed a felony. 35 Cyc. 878; Wehmeyer v. Mulvihill, 150 Mo. App. 197. (2) The reasonable and probable grounds which will justify the arrest without a warrant must be such as would actuate a reasonable man to act in good faith. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person's guilt, based either upon facts or circumstances within his own knowledge, or upon information imparted to him by a reliable and credible third party. 35 Cyc. 887; Sec. 55, pp. 43-44, Kelley's Criminal Law & Procedure (2 Ed.). (3) The mere suspicion of an officer will not justify him in arresting an innocent person without a warrant, unless a direct charge has been made by a reliable and credible third party. Sec. 55, pp. 43-44, Kelley's Criminal Law & Procedure (2 Ed.); Regan v. Harkey, 87 S.W. 1164 (Tex.). (4) "The officer is not necessarily justified because he believes an offense has been committed, but he is always justified if an offense in fact has been committed, whether he had reason to believe it or not. If a crime has not been committed, then he can only be justified by the existence of reasonable ground to believe that it has been committed." State v. Williams, 14 S.W. (2d) 434. (5) The officer can have no reasonable or probable cause to arrest without a warrant for a felony, if at the time he is in possession of facts which disprove the crime. Wehmeyer v. Mulvihill, 150 Mo. App. 197. (6) Where an arrest has been made without either a warrant and without reasonable and probable grounds of suspicion that an offense has been committed, the only justification which may be shown in defense is that the arrested party was actually guilty of a felony. Wehmeyer v. Mulvihill, 150 Mo. App. 197. (7) Unless the officer first makes a valid and lawful arrest, he is without authority to search for a concealed pistol and is liable in damages. Sec. 11, Art. 2, Missouri Constitution; 35 Cyc. 1275-6; Regan v. Harkey, 87 S.W. 1164; See 3 A.L.R. Ann. 1517; Re Swan, 150 U.S. 637; State v. Gartland, 263 S.W. 165. (8) The court should disregard testimony of a witness when it conflicts with his other testimony and with physical facts. Davidson v. R.R., 164 Mo. App. 701; Wray v. E.L. & W.P. Co., 68 Mo. App. 380; Kibble v. Q.O. & K.C.R.R., 285 Mo. 603. (9) The court should set aside verdict and grant new trial if there is no substantial evidence in the record to support verdict, and verdict cannot be based upon mere suspicion or speculation. Hamilton v. St. Louis S.F. Ry. Co., 300 S.W. 787; Clark v. Granby M. & S. Co., 183 S.W. 1089. (10) A guess is not substantial evidence. O'Neil Imp. M.F.G. Co. v. Gordon, 269 S.W. 636; Hunter v. Helsley, 98 Mo. App. 616. (11) Statements made by party as a witness, which are against his own interest, must be taken as true. Feary v. Metropolitan St. Ry. Co., 162 Mo. 75. (12) Reversible error to give instructions in a case which are broader than the issues made by the pleadings and evidence. Fiorona v. Ry. Co., 260 S.W. l.c. 124; Bank v. Curtis, 260 S.W. l.c. 816; Mansur v. Botts, 80 Mo. l.c. 558; State ex rel. v. Ellison, 270 Mo. l.c. 653. (13) Reversible error to give instructions which are confusing and conflicting and which constitute a misdirection to the jury. Trailer v. White, 185 Mo. App. 325; Finley v. Continental Ins. Co., 299 S.W. 1107; Ward v. First Nat'l Bank of Dexter, 27 S.W. (2d) 1066. (14) Reversible error to instruct on proposition which is not supported by pleading or proof. Feddeck v. Carr Co., 125 Mo. App. 24; State ex rel. v. Dickman, 124 Mo. App. 653. (15) If instruction contains correct declaration of law, it is reversible error for the court to refuse to give it. Ward v. First Nat'l Bank of Dexter, 27 S.W. (2d) 1066. (16) The good character and reputation of plaintiff was admissible to disprove reasonable and probable cause for the alleged arrest and the search, and to show malice on the part of defendant: also to fix the measure of damages. 35 Cyc. 1276-1277; 16 Cyc. 1264-1265; Mark v. Merz. 53 Ill. App. 458; Williams v. Eckhoff, 185 Mo. App. 234. (17) Reversible error to exclude material evidence. (18) Appellate courts may vacate judgments as opposed to weight of evidence in those cases where the verdict of a jury is so strongly opposed to all reasonable probabilities as to be the manifest result of passion or prejudice. Alder v. Wagner, 47 Mo. App. 25; Lovell v. Davis, 52 Mo. App. 342.

John H. Keith for respondent.

(1) The court did not err in refusing to permit plaintiff to prove that on the date of the search he sustained a good reputation in the community for being an upright, law-abiding citizen, inasmuch as it had not been assailed. Dudley v. McCluer, 65 Mo. 241; Rogers v. Troost's Adm'r, 51 Mo. 470; 22 C.J. 470; Bank v. Richmond, 235 Mo. l.c. 542; Deubler v. United Rys. Co., 195 Mo. App. 658. (2) There was abundant evidence to warrant the court in submitting the case to the jury on the evidence offered by defendant. The weight of the evidence was a question for the jury, and this court will not interfere with the verdict. This rule is elementary and needs no citation of authorities in support thereof. (3) There was no error committed by the court in giving the instructions on its own behalf, or in modifying instructions offered by plaintiff. Neither did the court err in giving instructions offered by defendant, as they properly declared the law of the case and the evidence upon which they were based was amply sufficient to warrant the court in giving them. See cases cited under other paragraphs and paragraph 4. (4) If a peace officer arrest a person without a warrant he is not bound to show in his justification a felony actually committed, to render the arrest lawful: but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable grounds to believe that such person has been guilty of a felony or is committing a felony, the arrest is not unlawful. State v. Underwood, 75 Mo. l.c. 237; State v. Spaugh, 200 Mo. l.c. 596; State v. Whitely, 283 S.W. l.c. 320; State v. Hall, 312 Mo. l.c. 433; State v. Padgett, 316 Mo. l.c. 183; State v. McNeece, 295 S.W. 737, 317 Mo. 304; State v. Bailey, 8 S.W. (2d) 57; State v. Williams, 14 S.W. (2d) 434; State v. Evans, 161 Mo. 95; 5 C.J. 399, 416, 417; State v. Grant, 76 Mo. 236; State v. Roberts, 15 Mo. 28; Wehmeyer v. Mulvihill, 150 Mo. App. 197; 5 C.J. 526. (5) A peace officer may make an arrest without a warrant whenever he has reasonable belief, based upon the facts and circumstances presently existing that a felony is being committed, even though such belief may afterwards turn out to be groundless. Likewise, no warrant is necessary to authorize arrest upon reasonable suspicion a person is committing or has committed a felony. State v. McNeece, 317 Mo. 304, and cases cited under paragraph 4. (6) A reasonable ground of suspicion has been defined to be: "A deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood, so far as to produce belief." If a person is walking the streets at night, and the indications are that he has committed a felony, watchmen and beadles have authority at the common law to arrest and detain him in prison for examination, though the proof of an actual felony committed may be wanting. All the precedents are to the effect that the officer is presumed to have acted by right and not by wrong. State v. Grant, 79 Mo. l.c. 134, 135; Smith v. Edge, 52 Pa. St. l.c. 422; State v. Duncan, 116 Mo. l.c. 312; State v. Cushenberry, 157 Mo. l.c. 181.

NIPPER, J.

This case originated in the Circuit Court of Madison County, Missouri. Plaintiff is a newspaper editor, and defendant is the sheriff of Madison County.

The petition alleges that on the 15th day of November, 1929, the defendant maliciously, and with intent to outrage, humiliate, and disgrace plaintiff, did by force seize, restrain, and search the person of plaintiff, without reasonable cause, and without right or authority so to do, and against the will of plaintiff; that by reason of said seizure, restraint, and search plaintiff was greatly "outraged, humiliated, and disgraced." Plaintiff asked $1000 actual and $1000 punitive damages.

The answer of defendant alleges that on the date mentioned he was the duly elected, acting, and authorized sheriff of Madison County. Missouri, and that on said date while acting as such sheriff, in the exercise of the duties of his office, and without malice, and on reasonable and probable cause, in good faith, and on facts and reliable information given him by other persons, that the plaintiff was committing a felony by carrying a concealed weapon, to-wit, a pistol, he did restrain and search the plaintiff, believing at the time, from information and facts received from other credible persons, that plaintiff was committing the offense of carrying a concealed weapon, which said offense was and is a felony.

Upon a trial of the issues, there was a verdict and judgment for defendant, and plaintiff has...