Kopplekom v. Huffman
| Decision Date | 17 November 1881 |
| Parties | AUGUST KOPPLEKOM AND OTHERS, PLAINTIFFS IN ERROR, v. LEMUEL HUFFMAN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court of Dodge county. Tried below, before POST, J. The case came here in 1879, and is reported 8 Neb 344. Verdict and judgment in favor of plaintiff Huffman.
AFFIRMED.
Marlow & Munger and E. F. Gray, for plaintiff in error.
1. Bond admitted in evidence is not identical with that set out in petition. The variance is fatal. 1 Greenleaf Ev., sec's 56, 58 and 66. 2 Id., sec's 11 and 160.
2. Bond is void because it differs from the statutory requirements in several respects. Gen. Stat., 99. Sexson v. Kelley, 3 Neb. 104. Cutler v. Roberts, 7 Neb. 13. Silver v. Governor, 4 Blackf., 15. Jackson v. Simonton, 4 Cranch C. C., 255. Howard v. Brown, 21 Me. 385.
4. Under the evidence, we contend that the plaintiff below was properly arrested and knew he was in the hands of an officer charged with a felony and breaking jail; and that his resistance and whole conduct was calculated to confirm the sheriff in the belief that he had found the escaped felon.
It is clearly established by proof, that Koppelkom had reasonable grounds to believe that the plaintiff was the escaped prisoner and did so believe, at the time of the arrest and shooting of plaintiff; and that the sheriff acted without malice, in good faith, and upon reasonable grounds, is not controverted by any fact or circumstance in the case.
The arrest and shooting must, therefore, be viewed in the same light as though it actually had been Clark that was arrested broke away, and shot to effect his recapture. And we think it will not be questioned but what, had it been Clark, instead of Huffman, the shooting would be justified. That Clark in that case could not maintain this action. It is a well established rule of law, that a sheriff, upon reasonable grounds of suspicion that a felony has been committed, may make an arrest of the suspected party without warrant, and will be justified, though it turn out that no felony was in fact committed, or that the suspected party is in fact not the guilty party. Burns v. Erben, 40 N.Y. 463. Rohan v. Sawin, 5 Cush., 281.
Marshall & Sterett, for defendant in error.
1. There was not on the trial any claim or proof that defendants were misled to their prejudice by immaterial variances between the allegation and proof. Civil Code, sec. 138.
2. The alleged invalidity was settled in 8 Neb. 347.
3. In answer to the fourth point in plaintiff's brief we cite Mix v. Clute, 3 Wend. 350. Gwynn on Sheriffs, 100, 552. Wharton on Homicide, sec. 245. Hoye v. Bush, 1 Man and Granger, 775. Commonwealth v. Crotty, 10 Allen, 403. Case v. Hart, 11 Ohio 368. 1 Bishop Crim. Law, sec. 868. 1 East Pleas Crown, 328.
4. Defendant sureties are liable upon the bond for the wrongful acts of sheriff. Van Settler v. Littler, 14 Cal. 194. People v. Schuyler, 4 Com., 173. Ohio v. Jennings, 4 O. S., 423. Kane v. U. P. R. R. Co., 5 Neb. 107. Com. v. Stockton, 5 Monroe, 129. Jewell v. Mills, 3 Bush., 6. Forsyth v. Ellis, 4 J. J. Mars., 299. Com. v. Reed, 3 Bush., 516. Cormack v. Com., 5 Binney, 184. Com. v. Cole, 7 B. Monroe, 250. Lowell v. Parker, 10 Met. 309, Greenfield v. Wilson, 13 Gray, 384. Skinner v. Phillips, 4 Mass. 75. Rollins v. State, 13 Mo. 437. Harris v. Hanson, 11 Me. 241. State v. Fanning, 21 Mo. 160.
The first five of the alleged errors relate exclusively to the official bond on which the action was brought. That the plaintiffs in error, as principal and sureties, actually executed an official bond for Kopplekom as sheriff, is not denied by the answer. The statements on this point are evasive. In effect, the denial is simply that they never "made their writing obligatory, as copied and set out in said petition;" and that the instrument "as mentioned and described in said petition," was never "approved according to law." An effort seems to have been here made by the pleader to take advantage of an evident clerical error in the wording of the bond itself, and also in copying it, by which certain words were omitted, or used, which ought not in strictness to have been. For instance, by the terms of the bond, as made, it runs to: "The people of the State of Nebraska," whereas it should have run to Dodge county, as the statute provides. This irregularity, however, cannot be taken advantage of by the sheriff or his sureties as we held in Huffman v. Koppelkom, 8 Neb. 344, 1 N.W. 243. Again, in copying a portion of the bond into the petition, the clause, "and these presents are upon this condition," between the last two words, the term "express" is inserted in the copy. And by still another error in copying, the phrase, "according to law and the best of his ability," is given as being, "according to law, and to the best of his skill and ability."
These variances could not possibly have misled, or in the slightest degree prejudiced the plaintiffs in error. They were therefore properly treated by the court as immaterial. "No variance between the allegation in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits." Sec. 128, code of civil procedure. It is not even claimed that these parties were misled; therefore, there being no merit in the objection, the bond was properly admitted in evidence.
The next objection in order is that made to the testimony of the witness Lang, "that August Kopplekom was sheriff of Dodge county." Had it been necessary to prove that Kopplekom was then sheriff, the testimony of this witness would have been pertinent and proper for that purpose. But, under the pleadings, this proof was superfluous, for, by the answer, it stood admitted that he was such sheriff, and that while in the lawful discharge of his official duty, he did the act complained of. Indeed, the injury to Huffman is sought to be justified on the sole ground that it was done in the lawful attempt to arrest him under the honest belief that he was really an escaped prisoner, charged with a felony.
A very large number of errors are alleged respecting the rulings of the court upon the admissibility of evidence. We have examined the bill of exceptions with care respecting this complaint, and noted the several points on which reliance is placed for a reversal, but fail to find anything to which exception could be justly taken. The several rulings of the judge in this particular seem to have been entirely fair throughout, and, as to the plaintiffs in error, quite as liberal as was possible. The alleged errors in this respect must, therefore, be overruled, and we pass them without further comment.
It is also claimed that errors were committed in the charge to the jury, both in refusing certain instructions requested, and in giving others to which exceptions were taken. As to those requested, which the judge refused, being two in number, we need only say that the substance of the...
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