Satterly v. Thornton

• Decision Date: 18 June 1920
• Citation: 222 S.W. 1088,188 Ky. 553
• Parties: SATTERLY v. THORNTON.
• Court: Kentucky Court of Appeals

222 S.W. 1088

188 Ky. 553

SATTERLY v. THORNTON.

Court of Appeals of Kentucky.

June 18, 1920

Appeal from Circuit Court, Spencer County.

Suit by Ezra Satterly against O. G. Thornton. Judgment for defendant and plaintiff appeals. Reversed, with directions.

S. K Baird, of Shelbyville, for appellant.

L. W Ross and Thad Cheatham, both of Taylorsville, for appellee.

QUIN J.

Appellant as plaintiff below, instituted this suit to recover damages on two counts; one for assault and battery the other for false imprisonment. There was a directed verdict for defendant on the second count, and the jury found in his favor on the first. Plaintiff appeals.

Defendant is the town marshal of Taylorsville. February 5, 1918, county court day, he received information there would be an attempt to release from jail one who had been arrested for drunkenness. To prevent the escape of the prisoner he remained at the courthouse that night. The prisoner had created a disturbance following his arrest. About 10 o'clock p. m., plaintiff, his son, and a companion, while in a nearby restaurant, hearing cries in the direction of the jail, stepped out through a rear door of the restaurant to the jailyard to see what was the trouble. The prisoner requested them to get him a drink of water. Seeing these people near the jail, defendant, in company with his deputy, hastened toward them, and ordered them to move on. Some words passed between the parties. Their respective version of the affair is detailed by the opposing witnesses. Defendant in turn struck plaintiff, his son, and their companion with a billiard cue, which he had in his hand. The evidence of the assault is contradictory. This issue was submitted to the jury under proper instructions, and the record contains nothing prejudicial to the rights of plaintiff in this regard.

Alleged improper remarks by counsel in his opening statement are urged as grounds for a reversal. The overstatement by an attorney of his case is usually fraught with more danger to his side of the controversy than to that of his adversary. We do not see wherein the remarks complained of could have influenced the jury or affected their verdict. However, they were not objected to, nor was any motion made to strike same from the record.

It is next urged that counsel overstepped the bounds of propriety in his closing argument. We have written oftentimes that in arguing a case to the jury counsel should confine themselves to the facts disclosed by the record, or to reasonable deductions therefrom, and when they exceed these bounds they do so at their peril. See Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005, and cases therein cited.

The remarks pointed out were improper, and should not have been made, but when they were objected to the court very promptly sustained the objection, and admonished the jury that they were not to consider them, thus curing what might otherwise have been a reversible error.

Complaint is further made of two questions propounded the witness Greenwell, but here again the court promptly sustained the objection to the questions--they were not answered.

The court erroneously instructed the jury to find for defendant on the false imprisonment charge. A warrant issued against plaintiff by the police judge on May 20, 1918, was placed in defendant's hands for service. Said warrant commanded defendant to arrest plaintiff and bring him before the police court to answer a charge of a breach of the peace committed in Taylorsville on the 7th day of May. The form of the warrant substantially complied with that found in section 27 of the Criminal Code.

Plaintiff...