Roberts v. American Emp. Ins. Co., Boston, Mass., 2615
| Decision Date | 08 April 1969 |
| Docket Number | No. 2615,2615 |
| Citation | 221 So.2d 550 |
| Parties | George ROBERTS, Jr., Plaintiff and Appellant, v. AMERICAN EMPLOYERS INSURANCE COMPANY, BOSTON, MASS., et al., Defendants and Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
John W. Hebert, Jennings, for plaintiff-appellant.
Walter G. Arnette, Grenese R. Jackson, Knight & Knight, by Wm. N. Knight, Jennings, for defendants-appellees.
Before FRUGE , HOOD and CULPEPPER, JJ.
Plaintiff seeks damages for unlawful arrest and for personal injuries resulting from being shot by the arresting officer. The defendants are (1) Horace J. Randolph, the officer, (2) American Employers Insurance Company, public liability insurer for the City of Jennings, (3) Willie Brown and Leroy Davis, whose complaints resulted in the alleged unlawful arrest. From an adverse judgment, plaintiff appealed.
The issues on appeal are: (1) the lawfulness of the arrest, which was made without a warrant for violation of a city ordinance relative to disturbing the peace; (2) was the arresting officer justified in shooting plaintiff in self-defense?
The facts show that on December 28, 1966 at about 8:00 p.m. plaintiff went to Haven's Lounge, a bar and care in the City of Jennings, Louisiana. A social organization, Club 21, was holding a private Christmas party in the bar room section. The bartender advised plaintiff it was a private party and refused to serve him a drink. Plaintiff refused to leave and ate some of the potato chips, which the members of the club had brought to the bar room. The members of the club objected and a disturbance ensued.
The bartender then telephoned the city police to complain that plaintiff was causing a disturbance at the lounge. However, before the police arrived plaintiff left Haven's Lounge and walked across the street to Shirley's Pool Hall, where he purchased a beer.
City Police Officer Horace J. Randolph arrived at Haven's Lounge at about 8:30 p.m. and was told that plaintiff had created a disturbance. The officer went in search of plaintiff and found him at Shirley's Pool Hall. He allowed plaintiff to finish drinking his beer and asked if he would go back to Haven's Lounge to discuss the complaint which had been made against him. Plaintiff went voluntarily.
After discussing the nature of the complaint with the bartender and the members of Club 21, Officer Randolph placed plaintiff under arrest for violation of the city ordinance against disturbing the peace. He did not have an arrest warrant.
The officer then ordered plaintiff to walk out of the lounge to the police car. There is a conflict in the testimony as to when the officer pulled his pistol from his belt holster. Plaintiff testified the officer pulled his gun before they left the lounge and held it in his back as they walked toward the police car. The officer says he did not pull his pistol until the instant before he fired it. In any event, plaintiff raised his hands above his head and was walking 5 or 6 feet ahead of the officer toward the police car when the incident in question occurred .
While walking toward the police vehicle, plaintiff stopped at least twice, cursing and stating Finally, as they neared the car, plaintiff turned around, lowered his hands and grabbed for the officer. The policeman stepped back and fired one shot from the hip, the bullet entering the lower left jaw and exiting the left rear portion of plaintiff's neck. Plaintiff recovered but suffered some permanent impairment of the use of his jaw.
The first issue is the legality of the arrest. This incident occurred on December 28, 1966, just 4 days before the present Code of Criminal Procedure went into effect on January 1, 1967. The statute in effect at the time, LSA-R.S. 15:59--60, provided that a peace officer could not make an arrest without a warrant for the commission of a 'misdemeanor' not committed in his presence.1 However, defendants contend the violation of a city ordinance was not a misdemeanor within the intendment of this statute. Hence a warrant was not necessary.
LSA-R.S. 14:7 and the Reporter's Comment thereunder read as follows:
'A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state. * * *
'Statutory crimes:
In the early case of State ex rel. Courrege v. Fisher, 50 La.Ann. 45, 23 So. 92 (1898), the court said:
The holding in State ex rel. Courrege v. Fisher, supra, was later modified to confrom with the provisions of Louisiana Constitution of 1921, Article 1, Section 9, requiring that all criminal proceedings be commenced by affidavit, information or indictment. Town of Rayville v. Bishop, 246 La. 887, 168 So.2d 593 (1964). The court held that in view of these constitutional provisions, defendant's conviction in mayor's court for breach of the peace, without an affidavit, information or indictment, was invalid. See also City of Baton Rouge v. Mondy, 225 La. 229, 72 So.2d 488, to the same general effect. But, State ex rel. Courrege v. Fisher was not overruled insofar as it held that violation of a city ordinance is not a crime .
In City of New Orleans v. Adjmi, 249 La. 346, 186 So.2d 616 (1966) the relator was adjudged guilty in the City Court of New Orleans of violating a municipal ordinance governing the sale of electrical appliances. On appeal, he contended the affidavit on which he was prosecuted was invalid for vagueness and insufficiency, citing the requirements of the Louisiana Constitution and Criminal Code. In a detailed opinion the court traced the history of the distinction between municipal ordinances and crimes defined by the State Legislature. The court concluded as follows:
'The authorities which we have cited above conclusively show that this court consistently for many years held that violations of municipal ordinances are not to be regarded as 'crimes' in the strict sense in which the term is used in the Constitution and the criminal statutes, that affidavits charging such violations need not be drawn with the strictness and technical precision as to form and substance required for indictments and information, and that such affidavits will not be deemed invalid for vagueness or insufficiency if they inform the accused of the place and date of the violation and inform him with reasonable certainty of the substance of the charge including the ordinance number.'
In City of New Orleans v. Cook, 249 La. 820, 191 So.2d 634 (1966) defendant was tried and found guilty in the City Court of New Orleans for violating a city ordinance relative to assault. On appeal he contended he was not given time to obtain counsel. The court again stated the distinction between municipal ordinances and criminal statutes, citing City of New Orleans v. Adjmi, supra, and held 'violations of municipal ordinances are not to be regarded in the same manner as violations of state criminal laws.'
Under the authorities cited above, the violation of the municipal ordinance of the City of Jennings, relative to disturbing the peace, was not a 'crime' within the intendment of our criminal statutes in effect at the time of the incident in question on December 28, 1966.2
Hence, the provisions of LSA-R.S. 15:59--60, in effect during 1966, requiring a warrant to arrest for a misdemeanor committed outside of the presence of the officer, had no application.
Following the rationale in City of New Orleans v. Adjmi, supra, and City of New Orleans v. Cook, supra, the strictness and technical precision required for 'crimes' defined in our criminal statutes do not necessarily apply to city ordinances. No authority has been cited which requires a warrant to arrest for violation of a city ordinance.
Furthermore, if we consider such equitable factors as good faith, reasonable cause and fair play, these would favor a holding that the arrest in the present case was lawful. Officer Randolph did not take the plaintiff into custody until after he had completed an investigation to determine the truthfulness of the complaints. This investigation was made in the presence of the...
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