Rich v. McInery

• Citation: 15 So. 663,103 Ala. 345
• Parties: RICH v. MCINERY.
• Decision Date: 22 May 1894
• Court: Supreme Court of Alabama

15 So. 663

103 Ala. 345

RICH v. MCINERY.

Supreme Court of Alabama

May 22, 1894

Appeal from city court of Decatur; William H. Simpson, Judge.

Action by Michael McInery against William Rich for false imprisonment. Judgment for plaintiff, and defendant appeals. Reversed.

The evidence for the plaintiff tended to show that on July 28 1888, he was in the jewelry store of the defendant, looking at some rings; that a short time after he left said store he was arrested by two police officers of the city of Decatur that after said arrest he gave bond for his appearance at the mayor's court the next morning; that in obedience to said bond he appeared at the court, and the cause was continued until the afternoon; that at the hearing of the cause against him, in the afternoon, he demanded of the defendant, who was the prosecutor, a warrant for his arrest; that at the defendant's request the case was continued until the next morning, in order that he might sue out a warrant; and on the next morning, the defendant failing to appear, the prosecution against the plaintiff was dismissed. The testimony of Thomas Turley and William Griffin, the two police officers who arrested the plaintiff, tended to show that the arrest was made at the instance and upon the demand of the defendant, Rich; that when one of the officers told said Rich, after he had accused the plaintiff of having stolen a ring, that he (the officer) knew McInery, and that Rich must be mistaken as to his charge against him, Rich told the said officer to arrest him; and that in obedience to said direction the officer arrested the plaintiff. The plaintiff testified that when he was arrested the officers told him that Rich accused him of stealing a ring. The defendant objected to this testimony, and moved the court to exclude the same, on the ground that it was hearsay, and a statement not made in the presence of the defendant. The court overruled the objection, and the defendant duly excepted. The testimony of defendant and Nelson and Crass, witnesses in behalf of the defendant, tended to show that he did not accuse the plaintiff of having stolen a ring from him, and did not direct the officers to arrest the plaintiff, but that he told the officers of the circumstances of the plaintiff having been in his store to look at some rings, and when the plaintiff left he missed a ring which he had shown him, and the police officers asked if he (Rich) wished the plaintiff arrested; that he declined to order the plaintiff arrested and that, thereupon, the officers said that under the circumstances they would arrest the plaintiff.

The court, at the request of the plaintiff, gave to the jury the following charges: (1) "If the jury believe from all the evidence that defendant procured, ordered, or directed the arrest of plaintiff, and that he was arrested, then I charge you that if defendant did this merely upon suspicion that plaintiff had stolen a ring from his store, and without reasonable cause to believe that plaintiff was guilty thereof, then defendant is liable in this action in such a sum as you may believe, from all the evidence, that he has been injured, not exceeding five thousand ($5,000) dollars." (2) "If you believe from all the evidence in this case that defendant procured, ordered, and directed the arrest of plaintiff, and that he was arrested at defendant's request, then if you believe that in fact no ring was in fact stolen from defendant's store, and that consequently plaintiff was not guilty of having stolen the same, then I charge you that the defendant is liable in this suit, and your verdict should be for the plaintiff." (3) "If you believe from all the evidence in this case that defendant appeared at the mayor's court upon the next day after the arrest of defendant, and stated to the mayor of the town of Decatur that he would prepare, or have prepared, a warrant for plaintiff, upon a charge of stealing a ring from defendant's store, upon the next morning, and that thereupon, and because of this, the mayor continued the examination or trial of plaintiff until the next morning,--if you believe these facts, if facts they be,-then this is some evidence, to which you may look in connection with all the evidence in the case, tending to show that defendant authorized and directed the arrest of plaintiff; and if you believe that he did so procure, order, and direct the arrest of plaintiff, without a reasonable cause to believe that plaintiff was guilty of the charge, then defendant is liable in this suit." (4) "The burden of the proof is on the defendant, Rich, to prove to the satisfaction of the jury that the ring was stolen." (5) "I charge you that the probable cause that will excuse the defendant in this case, if you believe defendant ordered and directed the arrest of plaintiff, there must have been a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty; and even this probable cause is not sufficient to avail the defendant in this cause unless you believe that a ring was in fact stolen from defendant's store." (7) "If the jury believe from the evidence that no felony had in fact been committed, and that defendant maliciously, and without probable cause, directed the arrest of plaintiff by the policemen, they must find for the plaintiff, and, in assessing plaintiff's damages, may take into consideration the injury to his feelings caused by his arrest and imprisonment, and it is not necessary to prove by witnesses the amount of such damages. The jury may assess damages as they deem proper, not exceeding the amount claimed in the plaintiff's complaint." (10) "Unless the jury are reasonably satisfied that the ring was in fact stolen, then it is immaterial whether Rich had probable cause for believing that the plaintiff had committed the theft."

The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If the jury believe the evidence, they will find for the defendant." (2) "Whether the ring was actually stolen or not, if you believe from the evidence that the defendant had probable cause for believing it was stolen by plaintiff, then your verdict should be for defendant." (3) "If the minds of the jury are in a state of doubt, from the evidence, as to whether defendant Rich ordered the police officers to make the arrest of plaintiff, then the verdict of the jury should be for defendant." (4) "If you believe from the evidence that plaintiff took the ring mentioned out of the store without the knowledge of defendant, this would be felony under the laws of Alabama; and, if you believe from the evidence that the defendant had probable cause for believing that plaintiff did take the ring, then, whether he took the ring or not, the defendant would not be liable." (5) "If you believe from the evidence that the evidence of the witnesses Turley, Griffin, Crass, Nelson, and Rich conflicts as to whether Rich told the officers, Griffin and Turley, that he would not make the charge of larceny against the plaintiff, and that he did not make such charge before plaintiff was arrested, and this was all the evidence upon this point, and that these witnesses are equally credible and worthy of belief, then your verdict should be for defendant." (6) "If you believe from the evidence that the plaintiff was arrested by the officers without being instructed by the defendant to do so, then defendant is not liable; and in determining this you must look to the evidence of the witnesses Griffin, Turley, Rich, Nelson, and Crass, and if you find theirs is all the evidence upon this question, and they are equally credible and worthy of belief, and that Turley and Griffin testified that they were instructed by defendant to arrest plaintiff, and that Rich, Nelson, and Crass testified that defendant did not instruct Turley and Griffin to arrest him, then your verdict should be for defendant."

Harris & Eyster, for appellants.

O. Kyle, for appellee.

HEAD J.

False imprisonment is the unlawful restraint of a person, contrary to his will. But two things are requisite, viz. detention of the person, and unlawfulness of such detention. 7 Am. & Eng Enc. Law, 661, 662. Malice is not material, except in aggravation of damages. Nor is probable cause of guilt on the part of the party imprisoned, when the imprisonment is under a criminal charge, material, except as it may be rendered so by the provisions of sections 4262 and 4266 of the Code, in cases to which those sections are applicable. 7 Am. & Eng. Enc. Law, 663, 664. If the imprisonment is under legal process, but the prosecution has been commenced and carried on maliciously, and without probable cause, terminating in the discharge of the defendant, it is malicious prosecution, and not false imprisonment. Id. 663. The action for damages for false imprisonment is in trespass; for malicious prosecution, in case. In Ragsdale v. Bowles, 16 Ala. 62 (decided in 1849), the averments of the complaint were that the defendant, "falsely, maliciously, and without probable cause, charged the plaintiff with the crime of felony, and, upon said charge, falsely, maliciously, and without probable cause, caused the plaintiff to be arrested by his body, and to be imprisoned, and kept and detained in prison for a long time, to wit, for the space of one day, then next following, and at the expiration of which said time he, the said defendant, caused the said plaintiff to be released and set at liberty, and wholly abandoned his said prosecution." The action was instituted and intended as one for malicious prosecution, and was prosecuted and...