Shelton v. Underwood

• Decision Date: 28 October 1935
• Docket Number: 31858
• Citation: 163 So. 828,174 Miss. 169
• Court: Mississippi Supreme Court
• Parties: SHELTON et al. v. UNDERWOOD

163 So. 828

174 Miss. 169

SHELTON et al. v. UNDERWOOD

No. 31858

Supreme Court of Mississippi

October 28, 1935

Division A

1. NEW TRIAL.

In action for assault and false arrest by sheriff and deputy evidence held sufficient to support verdict for defendants and hence setting aside of verdict by trial court was error.

2. NEW TRIAL.

Unanimous verdict on conflicting evidence of jury which has been legally selected should be allowed to stand.

3. NEW TRIAL.

Trial judge has power to set aside jury's verdict when against overwhelming weight of evidence, where there is such state of facts as to render verdict unreasonable or show that it was result of bias and prejudice, amounting to corruption.

4. NEW TRIAL.

Verdict should be set aside only where it is manifest from evidence and surroundings that it is not fair and true verdict.

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Tishomingo county HON. THOS. H. JOHNSTON, Judge.

Action by J. J. Underwood against M. P. Shelton and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Reversed and rendered.

T. A. Clark and J. C. Yourdan, Jr., both of Iuka, for appellants.

We understand the law to be that an officer in making the arrest has a right to use such force as is reasonably necessary to make the arrest and in all cases where force is used in making an arrest that the amount of force and the means employed are left to the sound discretion of the officer and as to whether he used more force than was necessary is to be determined by the jury on proper instructions.

5 C. J. 424, sec. 59; State v. McNinch, 90 N.C. 695; State v. Pugh, 101 N.C. 737, 9 A. S. R. 44; State v. Phillips, 94 N.W. 229.

We take the position that in the first trial of this cause it was submitted to the jury under proper instructions and the jury found against the appellee and we are entitled now to have the cause reversed and judgment entered for appellant.

Ennis v. Y. & M. V. R. R. Co., 79 So. 73.

W. C. Sweat, of Corinth, for appellee.

We concede that if the plaintiff had done anything to make it necessary for him to be arrested and he had resisted arrest that the officer was justified in using such reasonable force as was necessary to overcome the resistance, but we earnestly insist that it was unnecessary to use any force at all to put this plaintiff under arrest, and it was most certainly unnecessary to strike him with a deadly weapon and inflict upon him a serious wound under the circumstances.

2 R. C. L. 470, sec. 28; 5 C. J. 424, sec. 59; Holland v. State, 162 Ala. 5, 50 So. 215; Suell v. Derricot, 161 Ala. 259, 49 So. 895; Golden v. State, 1 S.C. 292; Dixon v. State, 12 Ga.App. 17, 76 S.E. 794; State v. Dennis, 2 Marv. 433, 43 A. 261; State v. Evans, 84 Am. St. Rep. 696; State v. Hancock, 73 Mo.App. 19; Luther v. Borden, 7 How. 1, 12 U. S. (L. Ed.) 581; Carlyle v. Silver Creek, 85 Miss. 380, 37 So. 1015; State v. Welch, 37 Wis. 196.

If the facts are undisputed and only one reasonable inference can be drawn therefrom, a peremptory instruction is proper.

Great Southern Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262.

The trial judge must direct the verdict when the testimony and reasonable inferences would be insufficient to support a different finding.

Mobile & Ohio R. R. Co. v. Clay, 156 Miss. 463, 125 So. 819.

Argued orally by T. A. Clark, for appellant, and by W. C. Sweat, for appellee.

OPINION

Ethridge, P. J.

J. J. Underwood brought suit against M. P. Shelton and Isaac M. Jackson, and the National Surety Corporation, in the circuit court of Tishomingo county, for assault and unlawful arrest. Shelton was a deputy sheriff, and Jackson was sheriff, of said county, who was bonded by the National Surety Corporation.

The suit was based on the theory that Shelton, the deputy sheriff, assaulted Underwood, the appellee, without cause and arrested him without authority of law, and that appellee was rendered unconscious for a time.

The appellants plead the general issue, with notice of special matter thereunder alleging that Underwood, at the time of the arrest, was violating the law by the use of profane language in a public place.

It appears that the deputy sheriff had arrested another who was drunk and using profane language in a public place, and was carrying this man to prison, and that Underwood and a large number of other persons gathered around the prison, and the prisoner was using vile language, and that Shelton asked the crowd to leave, and to go back up town. Underwood and others objected, and there is great conflict in his testimony as to just what happened and what was said during said time. There were numerous witnesses, but few of them agreed with each other exactly as to what was said and done. It seems to have been a case of conglomerate swearing, each witness giving the details of the transaction according to his recollection or his fancy. It will be unnecessary to set out in detail all that was said according to the various parties.

The appellee testified that he went down to the prison because a crowd had congregated there, and there had been some sort of race between the deputy sheriff and the prisoner, and, to quote appellee:

"Q. Had they put him in the calaboose when you got down there? A. Yes, and he was coming away when I walked up, and he said 'You all get away right now, you all go on off.' I was close and he says, 'You too, old man, you too.' I walked off a little piece and he says, 'You haven't got any business down here,' and I says, 'I don't know why, it's a public place.' I says, 'It ain't nothing to you about me being here that I know of,' and he says, 'I will show you,' and grabbed me by the arm and hit me, and that's all I know.

"Q. What do you mean by 'that's all' you know? A. He struck me across the head.

"Q. Where was you when you next knew anything? A. When I was in the doctor's office I found out I was in the doctor's office. . . .

"Q. Do you use profane language? (Objection sustained.)

"Q. When he took hold of you to arrest you, what did he say he was going to arrest you for? A. I understood him to say for cursing.

"Q. Had you cursed? A. No, sir."

The deputy sheriff testified that he had arrested another person and had placed him in jail, and that a crowd had congregated while he was putting him in, and he asked them to get back as the prisoner was keeping up a disturbance, and they were talking to him through the bar, and that some of them said something (objection sustained); that Mr. Underwood came and said he wanted to see the prisoner, and walked down and looked in the calaboose, and quoting the deputy sheriff: "I told the balance to get on away, and some of them crowded back up the hill kinder and made out like they were going, but they stopped there, and I looked back over my shoulder and asked Mr. Underwood to come on, let's go, and he asked me if I owned it, and I told him, no, I didn't own a foot of it, but come on so the boy would get quiet, he walked back a few steps above me, and turned round and told me, says 'You are getting Goddam smart here of late,' and I...