Reichman v. Harris

• Decision Date: 29 June 1918
• Docket Number: 3070.,3055
• Citation: 252 F. 371
• Parties: REICHMAN v. HARRIS. McCONNELL et al. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F. 371

REICHMAN v. HARRIS.

McCONNELL et al. v. SAME.

Nos. 3055, 3070.

United States Court of Appeals, Sixth Circuit.

June 29, 1918

Charles M. Bryan, of Memphis, Tenn., for plaintiff in error Reichman.

Province M. Pogue, of Cincinnati, Ohio, and William P. Metcalf and Elias Gates, both of Memphis, Tenn. (Pogue, Hoffheimer &amp Pogue, of Cincinnati, Ohio, and Metcalf & Metcalf and Gates &amp Martin, all of Memphis, Tenn., of counsel), for plaintiffs in error McConnell and others.

James H. Malone and John E. Bell, both of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Mathew Harris, in an action for false imprisonment, involving in aggravation of damages alleged unlawful invasion of his home and arrest of himself and infliction of serious personal injuries, ^[1] recovered a verdict against the following defendants: J. A. Reichman, Walter Lee, L. M Linson, L. F. McConnell, Ed. Bradley, Ira Williams, and J. W King-- for $22,500 as compensatory damages, and also a verdict against all these defendants, except Reichman, for $22,000 as exemplary damages, and judgment was entered accordingly. A new trial, however, was granted in favor of King, though denied as to the other defendants. Reichman procured an order of severance and sued out a separate writ of error, upon failure of his codefendants in the judgment rendered against him and them jointly to unite with him in prosecuting error. Later, however, these codefendants secured orders allowing them to prosecute writs of error in forma pauperis, and under stipulation of counsel the bill of exceptions and the printed record prepared in the Reichman proceeding are to be treated as filed on behalf of all the defendants below who are prosecuting error, and further the proceedings in error of L. F. McConnell are identical in form with all the other proceedings allowed in forma pauperis, though the latter are omitted from the printed record to save expense. The two cases in error were consequently heard together in this court, and they will be disposed of in one opinion.

The recoveries in issue were based upon acts and injuries charged against all the plaintiffs in error, and committed for the most part at the residence of Harris on the night of October 26, 1915, though he also relies on other and later wrongful acts and injuries. Harris resided at the time in Capleville, near Memphis, Tenn., and the whole trouble and injury grew out of efforts to arrest a claimed fugitive from justice, who was erroneously supposed to be at the residence of Harris on the night in question. Reichman was then the sheriff of Shelby county, Tenn.; Lee, Linson, Bradley, and Williams were deputy sheriffs under Reichman; and McConnell was a constable of the county. Lee, having information that Manuel Harris (a nephew of plaintiff) was 'wanted for murder in Mississippi,' secured on his own oath a warrant from a justice of the peace of Shelby county, October 18, 1915, to arrest Manuel Harris for 'the offense of fugitive from justice. ' Through previous arrangement Lee received a telephonic message from a storekeeper at Capleville, just after dark on the evening of October 26, that 'a strange negro, supposed to be the nephew of Mathew Harris,' 'had gone down to Mathew's residence,' and that if Lee 'would come down right away' he 'could get him.' Thereupon Deputy Sheriffs Lee and Linson, with at least two other men, went in an automobile to a point near plaintiff's residence, when the two deputies proceeded on foot to the residence. They took positions at the only outer doors of the house. Lee at the front and Linson at the back door. Alarm and trouble were aroused almost immediately, and there is conflict between the testimony of the inmates of the house and that of Lee and Linson as to some of the initial and important facts. In view of the contentions of counsel and certain rulings of the learned trial judge, it will be helpful to look into this part of the testimony.

Mathew Harris and his wife, with their little child and their nephew, Isiah Griffin, were the only persons inside the house; it is certain that Manuel Harris was not there. Harris, his wife, and the nephew testify that between 7 and 8 o'clock in the evening some one came to the front of the house (to the door, as the wife says) and called out for Mathew Harris; that the wife asked, 'Who are you?' or 'Who is that?' but 'they would not tell who they were. ' She, however, answered that Mathew Harris was not there, but that her nephew and little child were there. She was then told to have her nephew 'to come out here.' The nephew testifies that he picked up a pistol and opened the back door to see who was there, when (in his language) 'somebody shot at me, and the smoke burned my head, and I knocked the door to, and fell inside the house,' and his aunt cried out, 'You have done shot my child. ' He says some one then called out: 'Stand there with your pump gun; kill him if he tries to come out; don't let anybody out. ' The witness says, further, that he 'never fired a shot that night. ' However, two of the men remaining in the automobile testify that, when the first shooting occurred at the rear of the house, two shots were fired; and Mathew, his wife, and the nephew all testify that within the house the way to the front door was obstructed by an unfolded bed, which usually necessitated using the back door when passing into or out of the house in the evening. Mathew Harris says the men 'refused to tell who they were, and I did not know who they were'; his wife saying, 'The first time I knew they were white men was when I got outside the house that night.' Harris and his wife and nephew all testify in effect that none of the men stated at any time that evening that he was an officer, or that there were any officers there.

On the other hand, Lee testifies that he knocked on the door, that Mathew's wife asked, "Who is that?' and I said, 'Is Mathew here?' She said, 'No, he is not here,' and she said, 'Who is that?' and I said, 'This is an officer; come to the door a minute; I want to see you.' ' Lee also says, upon hearing persons inside the house walking towards the back door, he called to them: 'Do not go out that back door; there is an officer at the door. * * * There is four officers around this house. ' Linson testifies that he heard Lee knock at the front door and call out: 'You need not try to run out the back door. * * * You can't run out the back door. The house is surrounded with officers, and you can't get away. ' Further, that a half minute later he heard the back door open; that 'this boy walked out the door, and the thought struck me-- I had my pistol drawn on him, I would let him get out far enough so he could not jump back in the house before he saw me, and I saw a pistol in his right hand, * * * and I saw some one else coming out the door with a Winchester rifle, and I stepped to the corner of the house, and said, 'Get back in there before I kill you,' and when I said that the boy turned right around and started back in the house, and just as he entered the door he shot at me, and I tried to shoot him in the head at the time'; and further that the boy's shot 'was the first shot fired that night; I had not fired any before that. ' Lee, referring to this matter, said: 'There were no more shots fired in the back, but when these two shots were fired Linson hollered to me, 'Look Out. they are coming back in there,' and at this time I had done opened this front door-- it had one of those cheap locks on it-- and I turned the knob and went in the hall and started in this room and turned the door open. ' Upon going farther into the house and using a flashlight, he required Mathew's wife to precede him, stating that with her ahead of him he did not think there would be any shooting, but that she turned into another room, and Mathew then shot at him with a Winchester rifle. Mathew admits firing the rifle, but says: 'I shot to make him get back. I did not know what he was up to. I shot at the light. I did not know who he was; he did not tell me his name or nothing. ' According to the testimony of the defendants, this was the third shot fired; but Mathew Harris and his nephew, Isiah Griffin, testify that a number of shots had been fired into the house from the outside, particularly from the front, before Mathew fired. In speaking of the shooting at the back door, when his nephew fell and his wife screamed, as already stated, Mathew says: 'About that time the man on the front shot three or four times, and of course I was excited. ' Another feature of the evidence is: Harris and his wife and the nephew in effect testify that none of the officers stated that they were seeking Manuel Harris or even mentioned his name; while Lee testifies that he told the wife he had 'come for Manuel Harris, supposed to be Mathew's nephew.'

It is insisted for the defendants that the testimony thus far alluded to tends to show the commission of two felonies, one by plaintiff's nephew, Isiah Griffin, in firing as it is claimed upon Linson, and the other by plaintiff himself Mathew Harris, when he fired at Lee, and that these were crimes committed in the presence of the officers, and so justified the course they pursued, even though they resorted to the use of firearms in effecting an entrance into the home of the plaintiff. The trial court instructed the jury, on motion of counsel for plaintiff, that the verdict should be 'one of liability' against all the present plaintiffs in error. This left only a question of plaintiff's citizenship and the amounts of damages, compensatory and exemplary, to be considered by the jury. Upon these subjects we shall have something further to say; but...