Franklin v. Amerson

• Decision Date: 31 October 1903
• Citation: 45 S.E. 698,118 Ga. 860
• Parties: FRANKLIN v. AMERSON.
• Court: Georgia Supreme Court

45 S.E. 698

118 Ga. 860

FRANKLIN v. AMERSON.

Supreme Court of Georgia

October 31, 1903

Syllabus by the Court.

1. Where in an action for false imprisonment the plaintiff makes out a prima facie case of unlawful arrest and detention, and the defendant defends upon the ground that he was an officer authorized to make arrests, and arrested the plaintiff, for an alleged misdemeanor, without a warrant, because there was likely to be a failure of justice, for want of an officer to issue a warrant, the burden is on the defendant to establish that the circumstances were such as to authorize him to arrest the plaintiff without a warrant. The facts of the present case rendering the above rule applicable therein and, the defendant having wholly failed to show that there was likely to be a failure of justice for want of an officer to issue a warrant, the verdict in his favor was contrary to evidence and to law.

2. When an officer, without a warrant, attempts to make an arrest for an alleged misdemeanor, and the person sought to be arrested has no notice that the attempt to arrest is being made by lawful authority, such person has the right to resist the attempt to take him into custody, and the arrest, if made, is illegal.

3. While Civ. Code 1895, § 3844, applies to actions for malicious prosecution, and has no application in a suit against an officer merely for unlawful arrest and imprisonment, and acts of violence accompanying the arrest yet where, in a suit of the latter character, the plaintiff alleges that the acts complained of were done "without probable cause and maliciously," it is not erroneous to give this section in charge to the jury.

4. Civ Code 1895, § 3852, applies only to a case where the imprisonment complained of was under a warrant defective in form, or void for want of jurisdiction, and does not apply in a case where the imprisonment was not by virtue of any warrant whatever.

Error from City Court of Macon; Robt. Hodges, Judge.

Action by Carrie Franklin against W. S. Amerson and another. Case dismissed as to such other, and verdict for defendant Amerson, and plaintiff brings error. Reversed.

J. W. Preston, Sr., for plaintiff in error.

Minter Wimberly and Jesse C. Harris, for defendant in error.

FISH J.

Carrie Franklin brought suit against Amerson and Seizel, alleging that they, "without any provocation and without any probable cause, and maliciously, and without lawful authority whatever, did assault and beat, *** and did cruelly bruise, injure, and maltreat," her, in specified particulars, and did arrest and take her to the barracks, and have her locked up and imprisoned for the space of one hour. Before the case came on for trial, it was settled and dismissed as to Seizel. When the case was tried, the jury returned a verdict in favor of the defendant Amerson. The plaintiff made a motion for a new trial, which was overruled, and she excepted.

1. We are clearly of opinion that the court below erred in overruling the motion for a new trial. The plaintiff was entitled to a new trial upon the general ground that the verdict was contrary to the evidence. The plaintiff's testimony fully sustained the allegations of her petition and, if the defendant had introduced no evidence, he could not have legally escaped a verdict in her favor. Her testimony put the burden upon the defendant of showing that the arrest of the plaintiff, and his acts toward her in connection therewith, were authorized by law. He utterly failed to successfully carry this burden. According to his testimony, he, as a detective of the city of Macon, arrested the plaintiff, and, despite a very vigorous and desperate struggle on her part to prevent it, carried her to the police barracks and had her locked up. He admitted that he made the arrest without any warrant, and upon the mere statement of Seizel that the plaintiff had stolen his keys. The general rule which prevails outside of this state is that an officer has no authority to arrest a person for an alleged misdemeanor, without a warrant, unless the offense is committed in his presence and amounts to a breach of the peace. Hawley's Law of Arrest, 42. Under the laws of this state, "an arrest may be made for a crime by an officer, either under a warrant, or without a warrant, if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Pen. Code 1895, § 896. In the case of Thomas v. State, 91 Ga. 204, 18 S.E. 305, this court construed these provisions (then contained in Code 1882, § 4723) as being applicable to a case in which an officer, without a warrant, attempts to make an arrest for an alleged misdemeanor. Chief Justice Bleckley, who delivered the opinion, said: "The evidence indicates that the offense for which the policeman was endeavoring to arrest the accused when the shooting occurred was larceny of money and property from the house. If this was the offense, and if the effects stolen were of less value than fifty dollars, the arrest contemplated was not for a felony, but for a misdemeanor only. The policeman had no warrant, nor was the offense committed in his presence. This being so, he had no legal authority to make any arrest, unless it was reasonably proper to do so in order to prevent a failure of justice for want of an officer to issue a warrant. Code, § 4723. With ample time and opportunity to obtain a warrant after he was informed of the offense, and before he commenced looking out for the offender, the policeman had no right to proceed without it." So, in the case under consideration, Amerson, the defendant, had no right whatever to arrest the plaintiff for an alleged misdemeanor, without a warrant, unless the offense for which the arrest was made was committed in his presence, or she had committed the offense charged and was...