Mullins v. Sanders

• Decision Date: 20 June 1949
• Citation: 189 Va. 624,54 S.E.2d 116
• Parties: MULLINS. v. SANDERS.
• Court: Virginia Supreme Court

189 Va. 624

54 S.E.2d 116

MULLINS.

v.SANDERS.

Supreme Court of Appeals of Virginia.

June 20, 1949.

Error to Circuit Court, Dickenson County; Frank W. Smith, Judge.

Action of trespass on the case by Marvin Mullins against Roy Sanders for false imprisonment, malicious prosecution, and malicious abuse of criminal process. Judgment for defendant, and plaintiff brings error.

Affirmed in part, and reversed in part.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

G. Mark French, Clintwood, for plaintiff in error.

A. M. Phipps, Clintwood, for defendant in error.

EGGLESTON, Justice.

Marvin Mullins filed an action of trespass on the case against Roy Sanders seeking damages on three counts, namely, (1) false imprisonment, (2) malicious prosecution, and (3) malicious abuse of criminalprocess. At the conclusion of all of the evidence the lower court struck the plaintiff's evidence and a verdict and judgment for the defendant followed. We granted a writ of error to determine whether the evidence was sufficient to have warranted a submission of the issues involved to the jury.

At the bar of this court counsel for the plaintiff in error conceded that the evidence was insufficient to sustain the charge of malicious prosecution, and hence we are now concerned with the sufficiency of the evidence with respect to the allegations in the other two counts. For convenience we will sometimes refer to the parties by the positions occupied by them, respectively, in the court below.

The plaintiff, Marvin Mullins, and Jesse Carter operated a small coal mine in Dickenson county under the partnership name of Mullins & Carter. On September 20, 1947, Mullins purchased for the partnership from Roy Sanders, at the latter's home in Dorton, Kentucky, a gasoline motor for the sum of $90. Mullins gave in payment for the motor a check drawn by the partnership on the Cumberland Bank & Trust Company of Clintwood, Virginia. The check was signed "Mullins & Carter, " the name "Mullins" and the character "&" being written and signed by Mullins, and the name "Carter" being written and signed by the latter.

The two partners had opened the bank account earlier during the day and had made a deposit of more than $500. They understood that all checks were to be signed similarly to the one which had been given to Sanders, although the rather crudely written signature card indicates that the partnership signature was to be followed by the signed surname of one or perhaps both of the individual partners. As a matter of fact, on the day the account was opened, and within the next two or three days thereafter, the bank paid ten checks which were signed in the same manner as that in which the check given to Sanders was signed.

Sanders deposited the check which Mullins had given him in the First National Bank of Pikeville, Kentucky, and when it was forwarded for collection to the Cumberland Bank & Trust Company, although there were ample funds in the partnership account to meet the check, payment thereof was refused on the ground that the signature was improper.

Sanders then came from his home at Dorton, Kentucky, to Clintwood, Virginia, a distance of some forty miles, and presented the check in person to the Cumberland Bank & Trust Company, which again declined to pay it.

Shortly thereafter Sanders consulted the Commonwealth's attorney of Pike county, Kentucky, and upon the latter's advice procured a warrant for Mullins' arrest. The warrant is dated October 4, 1947, and charges Mullins with having committed a felony "by passing a check for $90 by improper signature with intent to defraud the said affiant, Roy Sanders."

On the next day, Sunday, October 5th, J. H. Steffy, deputy sheriff of Pike county, with the warrant in his possession, accompanied by Sanders, and in the latter's automobile, came to Clintwood in search of Mullins. The two men got in touch with Ross Phillips, deputy sheriff of Dickenson county, showed him the Kentucky warrant, and took him in Sanders' car to Mullins' home, some four miles from Clintwood, where they arrived about 2:30 p. m.

While there is some conflict in the evidence as to just what then occurred, in the consideration of the sufficiency of the evidence such conflict must, of course, be resolved in favor of the plaintiff, Mullins. According to Mullins, Steffy, the Kentucky deputy sheriff, showed Mullins the warrant and told him that he had come to see about the check which he (Mullins) had given Sanders in the purchase of the motor. Mullins replied that the check was good and that there was ample money in the bank to meet it. Sanders interposed that he "wanted the money" for the amount of the check plus Steffy's fee and their expenses. Mullins suggested that they go to Dante, Virginia, where Carter, Mullins' partner, was confined in the hospital, and procure Carter's signature to a "new check." To this Sanders replied: "I don't want a check, but the money or you go to jail." Since, as Mullins said, "it was Sunday" and the bank was closed, he could not comply with Sanders' demand. Thereupon Mullins was taken into custody by the local deputy sheriff.

At the suggestion of Phillips the party, consisting of Sanders, the two deputy sheriffs and Mullins, proceeded to the home of the Commonwealth's attorney for Dickenson county, where Phillips sought the advice of that official. Again the subject of the payment of the check by Mullins was discussed. The Commonwealth's attorney advised Mullins to pay the check. Mullins explained that he had sufficient money in bank, but since it was Sunday he was unable to get a check cashed. Again he offered to give Sanders a check properly signed, and again Sanders demanded that he be paid in cash, or else that Mullins be put in jail. Finally, the Commonwealth's attorney advised Phillips, the local deputy, that unless the parties could get the matter satisfactorily adjusted, he, the deputy, should take Mullins to jail. This was done.

Upon reaching the jail at Clintwood, Phillips telephoned the acting trial justice who lived in the same town, explained the situation to this official, and asked for his instruction. According to the words of the acting trial justice, "I told him that all he could do was hold the prisoner. I told him I would issue a warrant the next morning. I didn't have any warrants at home at that time."

In compliance with this direction Mullins was placed in jail and kept there until the next morning when the acting trial justice issued a warrant for his arrest as a fugitive from justice from the State of Kentucky, based on the Kentucky warrant, and released him on bail to appear on the following Saturday. On the latter day the matter was heard before the justice and Sanders appeared to prosecute Mullins under the local warrant. At the conclusion of this hearing Mullins was held under the warrant for the action of the Kentucky authorities.

At the February, 1948, term of the Circuit Court of Pike county Mullins was indicted for "unlawfully and feloniously obtaining" property from Sanders "with intention to commit a fraud" by means of the check. At the time of the trial of the present case that indictment was still pending.

Code, § 5070n reads thus: "Arrest without a warrant.-- The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a State ¹ with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused shall be taken before a judge, justice, justice of the peace or other officer authorized to issue criminal warrants in this State with all practicable speed and complaint made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant." Acts 1940, ch. 305, p. 482.

Since the Kentucky warrant on its face charged Mullins with the commission of a felony, it constituted "reasonable information" to the deputy sheriff of Dickenson county that Mullins stood charged in the courts of another State with a crime, punishable by "imprisonment for a term exceeding one year, " and justified the local officer in arresting him without a warrant within the meaning of this section. But under the further terms of the statute, "when so arrested" the accused must be "taken before a judge, justice, justice of the peace or other officer authorized to issue criminal warrants in this State with all practicable speed and complaint made against him under oath setting forth the ground for the arrest."

Similar statutes requiring that arrested persons be taken promptly before a committing authority have been adopted by Congress and the legislatures of nearly all of the States. Under such statutes it isthe duty of the officer or person making the arrest to take the accused within a reasonable time, or without unnecessary delay, before a judicial officer in order that a charge may be formulated against him. Winston v. Commonwealth, 188 Va. 386, 394, 395, 49 S.E.2d 611, 615, and authorities there cited.

It is uniformly held that unreasonable delay in failing to comply with such statutory mandate constitutes false imprisonment. As is said in 22 Am.Jur, False Imprisonment, § 20, p. 366: "It is the duty of an officer or other person making an arrest to take the prisoner before a magistrate with reasonable diligence and without unnecessary delay; and the rule is well settled that whether the arrest is made with or without a warrant, an action for false imprisonment may be predicated upon an unreasonable delay in taking the person arrested before a magistrate * *, regardless of the lawfulness of the arrest in the first instance." See also, 35 C.J.S, False Imprisonment, §§ 30, 31, pp. 545-547; Sands & Company v. Norvell, 126 Va. 384, 101 S.E. 569.

Moreover, any person who causes, induces, aids, assists,...