Henderson v. State, 36631

• Decision Date: 28 May 1957
• Docket Number: No. 36631,2,Nos. 1,36631,s. 1
• Citation: 99 S.E.2d 270,95 Ga.App. 830
• Parties: Joe HENDERSON v. The STATE
• Court: Georgia Court of Appeals

Page 270

99 S.E.2d 270

95 Ga.App. 830

Joe HENDERSON v. The STATE.

No. 36631.

Court of Appeals of Georgia, Division Nos. 1, 2.

May 28, 1957.

Syllabus by the Court.

Where, on the trial of a State patrolman for false imprisonment, it appears from the evidence that his sole defense was that he made the arrest for drunkenness upon the public highway without a warrant when he in good faith had probable cause to be lieve that such offense was being committed in his presence, it is error requiring the grant of a new trial for the trial court to fail to instruct the jury on this defense.

Frank M. Gleason, Rossville, for plaintiff in error.

Earl B. Self, Sol. Gen., Summerville, for defendant in error.

CARLISLE, Judge.

The defendant, Joe Henderson, was tried and convicted under an indictment charging that he 'did unlawfully arrest, confine and detain Henry Brown, without process, warrant, or legal authority to justify it, in the county jail at Ringold [sic], Georgia. * * *'

The defendant's motion for new trial, based on the usual general grounds and eight special grounds, was denied, and he assigns error on that judgment.

Under the view which this court takes of the case, the controlling issue is contained in special ground 7 of the amended motion for new trial which is quoted here:

'The court erred in failing, without a written request being made, to give the jury appropriate instructions on every substantial issue in the case presented by the evidence. The controlling issue in this case was whether or not the defendant, under the physical facts and circumstances of Brown's car being partly on and partly off the highway, in a position dangerous to other users of the highway, on a sharp curve which was wet, slick and dangerous, with the motor running, and Brown, himself, under the wheel, spinning his wheels in soft dirt, with his eyes red and swollen, apparently unable to talk, or else being sullen and refusing to talk when spoken to, coupled with his staggering around when he got out of his car, all of which occurred in the presence of the defendant, a member of the State Highway Patrol, afforded probable cause for defendant to arrest Brown without a warrant.

'The court did not charge on this vital and controlling issue.

'Certainly the defendant, charged by law (Section 92-A-329, Code) [sic, Code Ann.Supp. 92A-239?] was required to investigate incidents of this nature and to safeguard the lives and property of the public on highways. From what he saw, he concluded in good faith that Brown was driving under the influence of intoxicants or drugs. One is guilty of driving under the influence when he is so affected by the intoxicant, as to make him less safe to drive the vehicle. Under the law, it became his duty to arrest Brown without a warrant. Had the jury been instructed on this vital and controlling issue, it would have understood what issue it was trying. Instead, the jury was told that if Brown was unlawfully arrested, the defendant would be guilty of the offense charged.'

Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will not only be required to pass upon it, but will be enabled to do so intelligently, under pertinent rules of law and evidence, withdraws that defense from the jury, and to that extent prejudices the defendant's right to a fair and impartial trial (Thompson v. State, 16 Ga.App. 832(4), 84 S.E. 591), and it is error for the trial court to omit calling the attention of the jury to that defense whether or not he is requested to do so. Reed v. State, 15 Ga.App. 435, 83 S.E. 674, and citations.

'It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the lives and property of the public.' Code (Ann.Supp.) § 92A-239, Ga.L.1937, pp. 322, 337.

'They [the Uniform Division of the Department of Public Safety] shall not exercise any power of arrest except for offenses arising for violation of the traffic laws or laws regulating the use, ownership, and control of motor vehicles, or for offenses committed upon the highways of this State * * *' Code (Ann.Supp.) § 92A-242.

Under the terms of Code (Ann.Supp.) § 68-1625, it is unlawful for any person who is under the influence of intoxicating liquor to drive or operate any vehicle; and, it is unlawful for any person who is a habitual user of, or under the influence of any narcotic drug, or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle in this State.

'False imprisonment is a violation of the personal liberty of a person and consists in confinement or detention of such person without sufficient legal authority.' Code, § 26-1501.

'Any person who shall arrest, confine, or detain a person without process, warrant, or legal authority to justify it, shall be guilty of a misdemeanor.' Code, § 26-1502. § 'An arrest for a crime may be made by an officer * * * without a warrant if the offense is committed in his presence. * * *' Code, § 27-207.

'The motives, good faith, and purpose of the defendant are legitimate matters of defense to be considered by the jury in passing upon the false imprisonment indictments, as they negative the idea of criminality. McCarthy v. De Armit, 99 Pa. 63 and Taylor v. American International Shipbuilding Corp., 275 Pa. 229, 119 A. 130.' Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333, 338; Commonwealth v. Cheney, 141 Mass. 102, 6 N.E. 724, 55 Am.Rep. 448. There is evidence from which the jury would be authorized to find that the defendant in good faith and with probable cause arrested the prosecutor for drunkenness, and any facts, circumstances, or information on which the officer (the defendant) acted in making the arrest are admissible, not as proof of the facts, but as evidence that the officer in making the arrest did so upon reasonable ground of suspicion. Johnson v. State, 30 Ga. 426(6). In Forsythe v. Ivey, 162 Miss. 471, 478, 139 So. 615, 617, it was held: 'Drunkenness in a public place is a misdemeanor. In making arrests, generally, for misdemeanors committed in the presence of officers, there must be in fact a misdemeanor committed or threatened, but in the case of drunkenness, policemen must act upon appearances, and the evidence in this case clearly presents a case where the policemen were warranted in believing that the plaintiff was drunk at the time of the arrest.'

It is evident in this case that the jury was authorized to find that the defendant had probable cause to believe that the prosecutor was intoxicated and operating a motor vehicle on the public highway and that he was justified in making the arrest without a warrant for this offense committed in his presence and this being the defendant's sole defense, he was deprived of a fair trial when the judge did not instruct the jury upon such defense.

Since the jury was authorized to find that the prosecutor was legally arrested, the evidence did not demand the finding that the prosecutor was illegally detained or confined. The evidence as to his drunkness varied from complete sobriety to total drunkness, and the prosecutor himself testified: 'Mr. Brown, actually this allegation of yours, here in this indictment, you allege that you were detained without process, warrant, or legal authority, it is not correct is it, (?) the only reason you were detained was so you could waive trial by the ordinary and give bond, isn't that correct? A. Yes, sir.'

As the case must be remanded for a new trial, and the other assignments of error are such as are not likely to recur upon another trial, such assignments of error are not considered here.

There having been a dissent tot he original opinion reversing this case, the case was, pursuant to the Act of the General Assembly, approved March 8, 1954 (Ga.L.1945, p. 232, Code (Ann.Supp.) § 24-3501, considered by the court as a whole.

Judgment reversed.

FELTON, C. J., and GARDNER, P. J., concur.

QUILLIAN, J., concurs specially.

TOWNSEND and NICHOLS, JJ., dissent.

QUILLIAN,...