Giannini v. Garland

• Decision Date: 14 January 1944
• Citation: 296 Ky. 361
• Parties: Giannini et al. v. Garland.
• Court: United States State Supreme Court — District of Kentucky

296 Ky. 361

Giannini et al. v. Garland.

Court of Appeals of Kentucky.

January 14, 1944.

1. Arrest. — An offense is committed in the "presence of officer" so as to authorize officer to make an arrest without a warrant, if officer by his presence becomes informed through any of his senses of material elements of particular crime, which has a tendency to produce in mind of a reasonably prudent person that it is morally certain that the principal fact occurred.

2. Arrest. — An officer may arrest a misdemeanant without warrant upon ground that the offense was committed in his presence

when he has reasonable ground to believe, and did believe in good faith, that person arrested was guilty, but foundation for such reasonable belief must be based upon facts obtained by officer through some one or more of his senses, and not from information that he may have received from third party.

3. Arrest. — The information received from person arrested may be sufficient to complete commission of offense in the "presence of officer," so as to authorize officer to make an arrest without a warrant.

4. Arrest. — The act of fishing in presence of defendant game wardens by plaintiff, who admittedly had no license, was sufficient to establish commission of an offense in "presence of officers," so as to authorize game wardens to arrest plaintiff without a warrant, in view of fact that game wardens were not required to know that admitted fishing was done at a place or under circumstance not required under some exception contained in statute.

5. Fish. — To become a "lessee," protected by statute authorizing landowners, their resident children and lessees to take fish by angling from the waters on their land without a license, some sort of tenancy issuing out of real estate must be obtained giving alleged lessee some sort of exclusive privilege over portion of the estate so leased, and a bare verbal license revocable at any time will not suffice. Ky. St. Supp. 1939, sec. 1954d-13.

6. False Imprisonment. — Proof that plaintiff had verbal permission, revocable at any time, to fish from waterline of premises from which he claimed to have caught the fish, which warden discovered in his boat, was insufficient to establish that plaintiff was a "lessee," so as not to be required to have a license. Ky. St. Supp. 1939, sec. 1954d-13.

Appeal from Marshall Circuit Court.

Waller & Threlkeld for appellants.

Prince, Cox and Acree for appellee.

Before Joe. L. Price, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

This is an action filed in the Marshall Circuit Court by appellee as plaintiff against appellants as defendants, whereby plaintiff sought to recover damages from defendants for falsely arresting him on the alleged charge of violating our game and fish code by fishing in the Tennessee River without complying with the statute in respect thereto.

The first paragraph of the answer denied the material averments of the petition, and its second paragraph justified the arrest by averring that at the time it was made "the plaintiff was then and there violating the fish and game laws of Kentucky, and committing a misdemeanor in the presence of these defendants," each of whom were Conservation officers, commonly referred to as game wardens, who are vested by the statute with the enforcement of its provisions and authorized to arrest, even without warrant, any person found violating any of the provisions of the statute. A trial before a jury resulted in a verdict in favor of plaintiff for the sum of $250 upon which judgment was rendered and defendants' motion for a new trial having been overruled they have filed a copy of the record in this court with a motion for an appeal which is now sustained and the appeal granted.

On the early forenoon of October 24, 1941, defendants, as such officers, made a trip in a motorboat up the Tennessee River starting from Paducah, Kentucky. When they arrived near to a place called Altoona, shortly down the river from Gilbertsville, Kentucky (both in Marshall County), they discovered quite a distance ahead of them two men in a rowboat about seventy-five yards from the opposite side of the river, which is in Livingston County. One of the men was in the front end of the boat and appeared to be rowing it with oars, whilst the other one was standing in its rear end holding a rope or line in his hand and handling it as if it was a trotline. The officers then steered their course and pulled up by the side of the rowboat, discovering that the rope was tied to a dead motorboat which was being towed by the john boat which plaintiff and one Jones occupied. The officers before arriving there had discovered that there was a barrel in the john boat and they saw one of its occupants dipping water with a tin bucket and pouring it into the barrel. When reaching the john boat defendants also discovered an eighteen or twenty-pound catfish in the bottom of the rowboat and some forty or fifty pounds of other varieties of fish in the barrel. They observed that the bottom of the rowboat was wet and there was in it a trotline about 300 feet long with some of the hooks on it baited, the trotline still dripping water. In brief plaintiff's account of what then and there occurred as given by him on the trial was: "Q. Now what did they do or say? A. They run the boat up by the side of my boat and Mr. Giannini demanded to check my fishing license and I told him I didn't have any license. I believe — I wouldn't be positive — I think that was the first one that demanded it, and I was the one that spoke up because I was the fisherman and I told him that I didn't have any." He then stated that he told defendants that the fish he had in the boat belonged to him since he was the fisherman (the proof further showing that he was a commercial fisherman, and fished for profit). He stated that he lived "on Mr. Jones' place" in Marshall County and that "I told them to come down there, if I couldn't prove a clear record to show them that I wanted to do what was right — that I would go with them anywhere" and that Giannini answered, "You are going to Smithland," which is the county seat of Livingston County.

Plaintiff, the two defendants and Mr. Jones then crossed the river to Gilbertsville in order to procure an automobile from another game warden residing in that village to transport the parties to Smithland; but on arriving there the local warden was out of town, when plaintiff proposed to deposit with defendants the estimated amount of fine and costs which was fixed at $29.50. Defendants accepted it and executed a receipt to plaintiff for the amount. Plaintiff was directed to report to the county judge in Smithland on the following Tuesday, but for some cause the trial was set forward to a later date at which time defendant Harper was absent, nevertheless the county judge tried plaintiff and acquitted him.

Defendant, Giannini, testified that when he pulled up by the side of the towboat of plaintiff and discovered its contents he said to plaintiff and his companion, Jones: "It looks like you fellows had some luck this morning, * * * a nice catch you got there. Did you catch him in a net?" Whereupon they answered: "No, we caught him on a line." The officers then asked plaintiff if he had a license, receiving the answer, "I don't have any;" whereupon the officer asked the other occupant of the boat, Mr. Jones, if he had a license, receiving the answer that he was not fishing and plaintiff then said: "No, he just came along with me to see me catch the fish, these fish and equipment all belong to me." The officer then said: "You are supposed...