Pratt v. Brown

• Decision Date: 28 April 1891
• Citation: 16 S.W. 443
• Parties: PRATT v. BROWN.
• Court: Texas Supreme Court

16 S.W. 443

PRATT v. BROWN.

Supreme Court of Texas.

April 28, 1891.

Commissioners' decision. Appeal from district court, Grayson county.

C. H. Smith, C. B. Randell, and W. W. Wilkins, for appellant. Bryant & Dillard, for appellee.

MARR, J.

This action was brought by the appellant, as plaintiff in the court below, to recover damages of the defendant for false imprisonment. He alleged that the agent of the defendant, acting within the scope of his authority, wrongfully and maliciously caused plaintiff to be illegally arrested without warrant by a policeman of the city of Bonham, and ejected from defendant's depot, and imprisoned in the city prison for a night and day. Defendant in effect and inter alia justified the acts of its agent by pleading specially that the arrest and imprisonment was legal, for the alleged reasons that plaintiff when arrested was violating both the laws of the state and the ordinance of the city of Bonham. It was charged that he was, when arrested, a trespasser, and also in a state of intoxication in a public place. The case was tried before the court without a jury, and judgment was rendered in favor of the defendant, from which plaintiff appeals. He assigns as error the action of the court in holding that his arrest and detention were legal. This is the substance of all of the assignments. There is no statement of facts in the record, but the transcript contains the judge's conclusions of law and fact. The conclusions of fact are as follows, viz.: "(1) I find that defendant is receiver of the Texas & Pacific Railway Company, as alleged in plaintiff's petition. That on the ___ day of August, 1888, the plaintiff entered the waiting-room at defendant's depot in the city of Bonham, Texas, to come as a passenger on its next train for Sherman. This was almost 7 o'clock in the evening, and the train upon which plaintiff intended to take passage left Bonham for Sherman at nine. At the time plaintiff so entered defendant's depot he had been drinking, and was under the influence of intoxicating liquors to a considerable extent, and in a short time he lay down on one of the seats in the waiting-room, and slept until the train reached Bonham, when he was awakened by one of defendant's employes, and asked if he desired to leave on that train, when he declined to do so, and again went to sleep. A short time after the train had left, he was again aroused by one of defendant's employes, and notified that the next passenger train to Sherman would not leave until after 1 o'clock the next day, and that it was against the rules of the company for him to spend the night in the waiting-room, and that it would be necessary for him to leave the same. This the plaintiff declined to do, and insisted upon remaining in the depot until taking passage on the cars for his destination. After several requests and notifications to leave on the part of defendant's agent, and as many refusals to do so by plaintiff, said agent sent for a policeman, and requested him to take charge of plaintiff. Nothing was directly said as to what the policeman was to do with plaintiff, nor as to the offense, if any, with which he was charged, but it was understood, both by said agent and policeman, that plaintiff would be put in the city prison, commonly called the `calaboose.' When the policeman's attention was called to plaintiff he had again gone to sleep upon one of the seats, and, when aroused and notified of his arrest, he insisted upon his right to remain until the arrival of his train. At this time there was no sign of intoxication on the part of plaintiff, other than his being asleep as above detailed. He was, however, taken in charge by the policeman, and placed in the city prison where he remained until about the middle of the next evening, when he was released from custody, without any complaint having been filed against him. At the time of plaintiff's arrest the city of Bonham was incorporated under the general charter for cities over one thousand inhabitants, and at that time there was an ordinance of said city in force punishing trespassers upon the property of others, a copy of which is attached to defendant's answer." The ordinance of the city of Bonham pleaded and introduced in evidence, and to which the court refers above, is to the following effect: "That if any person shall enter or intrude upon the premises of another, without his consent, he shall be fined not exceeding $10.00." There was no ordinance shown, enacted by said city, authorizing, as might perhaps have been done, arrests without warrants for the offense before defined. Code Crim. Proc. art. 228; 1 White & W. Cond. Civil Cas. § 463. Neither was it proven that the city of Bonham had ever passed any special law punishing drunkenness in a public place. The court below in effect held that the arrest was legal, because the defendant was violating the before-mentioned ordinance, and also the general law of the state on the subject of drunkenness, and particularly that under article 363 of the Revised Statutes he could be legally arrested without warrant for the commission of the offense denounced by said ordinance.

We are not certain that this latter conclusion of the court is correct, under the facts disclosed by the record, and in our view of the law. Without deciding that point, however, we pretermit the question, and proceed to determine whether the arrest was legal on the other ground, viz., drunkenness in a public place. If the acts of the policeman in the matter were legal, it would follow that those of the defendant, through its servant, in abetting him, were likewise legal and justifiable. We will discuss, therefore, the duty and authority of the policeman. A policeman of an incorporated town or city is, under the general laws of the state, a peace officer, and a conservator of the peace "within his jurisdiction." "He shall arrest all offenders, without warrant, in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court, and be brought to punishment." Code Crim. Proc. arts. 44, 45. See, also, Pen. Code, art. 253. By article 363, Rev. St., he is given, in effect, (among other powers hereafter to be noticed,) in order to prevent crime and preserve order, the general powers possessed by sheriffs under the state laws. The power is expressly given to the marshal and his deputies, but we think that a policeman should be regarded as a deputy in the meaning of this article. The sheriff is required to "arrest all offenders against the laws of the state, in his view or hearing, and take them before the proper court for examination or trial." Code Crim. Proc. art. 49; Pen. Code, art. 253, supra. It must appear, we think, to justify this arrest (there being no affidavit before any court, or warrant of arrest issued, charging plaintiff with a crime,) that he was guilty of the offense of drunkenness in a public place as defined by law, and also that the circumstances existing at the time of the arrest, as well the nature of the offense, were such as under the law authorized the arrest without warrant. Giroux v. State, 40 Tex. 104, 105. We have collated the foregoing provisions of the statutes as having more or less weight in the solution of the questions involved, and will presently advert to others more closely connected with the subject. In the case of Scircle v. Neeves, 47 Ind. 289, to which we call special attention, the supreme court of that state attached much importance to similar provisions of law in a suit identical in all of its prominent features with the present controversy. It was there held that a city marshal, as a conservator of the peace and the good order of the community, could arrest without warrant, for the offense of drunkenness, committed in his presence or view, and could imprison without a commitment the offender during the night, while the latter was still intoxicated, although there was no express provision of law authorizing arrests in such cases without warrant. This decision was approved in effect by the court of appeals of this state in the case of Beville v. State, 16 Tex. App. 70. No little difficulty, however, has been experienced from the fact that the court of appeals, whose peculiar province it is under the law to construe criminal statutes, has, by an almost unbroken line of...