Rosenberg v. Bax

• Citation: 258 S.W.2d 458
• Parties: ROSENBERG v. BAX et al.
• Decision Date: 13 February 1953
• Court: United States State Supreme Court — District of Kentucky

Page 458

258 S.W.2d 458

ROSENBERG v. BAX et al.

Court of Appeals of Kentucky.

Feb. 13, 1953.

Rehearing Denied June 19, 1953.

H. A. I. Rosenberg, pro se, for appellant.

Lawrence G. Duncan, J. W. Jones, Louisville, John Y. Brown, Lexington, for appellees.

COMBS, Justice.

The plaintiff, H. A. I. Rosenberg, seeks to recover damages against the sheriff of Jefferson county and three of his deputies for false arrest and false imprisonment. The question on this appeal is whether the trial court erred in sustaining a general demurrer to plaintiff's 'amended and substituted petition.'

To sustain his charge of false arrest, plaintiff alleged that the defendants, in the City of Louisville, between the hours of 7 and 8 p. m., without a warrant to arrest plaintiff, came into the premises occupied by the Fourth Avenue Billiard Parlor, 'and with full knowledge to each of them, the said defendants, that plaintiff had not committed a felony of any nature or kind whatsoever, and without good or probable cause to warrant the belief in said defendants that plaintiff was in the process of committing a statutory or common-law felony at said time and place or to believe that he had theretofore perpetrated the same, and at a time when plaintiff was clearly in their presence not even remotely perpetrating an act justifying a belief on said defendants' part that a statutory or common-law felony was being, had been or would be committed by him, falsely, wilfully and maliciously arrested this plaintiff on the charge of setting up and operating a game of chance * * *.'

It will be noted that although it is stated plaintiff did not commit a felony in the officers' presence, it is not stated he did not commit a public offense, i. e., a misdemeanor in their presence. Section 36 of the Criminal Code of Practice authorizes a peace officer to make an arrest 'without a warrant, when a public offense is committed in his presence * * *.' The presumption is in favor of the legality of the arrest and the burden was on plaintiff to plead sufficient facts to negative the presumption. Connelly v. American Bonding & Trust Co., 113 Ky. 903, 69 S.W. 959. So, the failure to state that plaintiff did not commit a public offense in the presence of the officers rendered the charge of false arrest fatally defective. Edens v. Hudson, Ky., 243 S.W.2d 501.

As regards the false imprisonment phase of the case, it is stated in the pleading:

'Plaintiff states further that the defendants * * * failed and refused to respect and carry out the statutory duty imposed upon them, and each of them, to carry plaintiff forthwith before the most convenient magistrate of Jefferson County, Ky., in order that said alleged criminal offense might have been formally presented against the plaintiff and to thus afford him sufficient opportunity to furnish a bail bond therefor and otherwise, in conformity with Sec. 46, said Criminal Code of Practice; and your plaintiff avers that said failure...