State v. Dierker

• Decision Date: 14 April 1903
• Citation: 101 Mo. App. 636,74 S.W. 153
• Parties: STATE ex rel. BRENNAN v. DIERKER, Sheriff, et al.
• Court: Missouri Court of Appeals

74 S.W. 153

101 Mo. App. 636

STATE ex rel. BRENNAN v. DIERKER, Sheriff, et al.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

SHERIFFS AND CONSTABLES—FALSE ARREST —COLOR OF OFFICE—ARREST WITHOUT WARRANT—LIABILITY OF SURETIES.

1. Peace officers, in the absence of an empowering statute, have no authority to arrest for a misdemeanor without process, except on view.

2. It is only such acts of a sheriff as are done under color of office, involving an abuse, as distinguished from a usurpation, of authority, that render his bondsmen liable.

3. Sureties of a sheriff on his official bond, conditioned for the faithful discharge of the duties of his office as sheriff, are not liable for an arrest by him, without a warrant, for a misdemeanor not committed in his view, as such arrest was not under color of office, although he thought he was acting officially, and was personally liable for his misconduct.

Reyburn, J., dissenting.

Appeal from Circuit Court, Montgomery County; Elliott M. Hughes, Judge.

Action by the State, on the relation of Robert L. Brennan, against John H. Dierker, sheriff, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

W. H. Clopton and J. D. Barnett, for appellant. C. W. Wilson, T. F. McDearmon, and C. R. Ball, for respondents.

Statement of Facts.

GOODE, J.

This is an action on the official bond of the respondent Dierker as sheriff of St. Charles county to recover damages from him and his sureties for an alleged malicious arrest of the appellant in said county on November 10, 1901. Appellant was arrested for hunting on Sunday, and for attempting to transport eight quails out of the county, which he was charged with having killed therein. The petition, after making formal averments in regard to the election of Dierker as sheriff, and the execution of his bond for $15,000, with the other respondents as sureties thereon, proceeds as follows: "Plaintiff says that at the times hereinafter mentioned he was, and had been for many years, a resident of the city of St. Louis, Missouri, and enjoyed and possessed a good name and fame among the citizens of said city; that on the 10th day of November, 1901, the defendant John H. Dierker, under color and pretense of his authority as sheriff of said county of St. Charles, in a violent and threatening manner, and without warrant, at the said county of St. Charles, arrested plaintiff, and detained him at a station called `See-burger,' on the Burlington Railroad, and restrained plaintiff of his liberty, and refused to permit plaintiff to board the car coming to St. Louis, saying to plaintiff that he (plaintiff) would have to walk on his (John H. Dierker's) dead body before plaintiff should board the car; that said John H. Dierker falsely charged plaintiff with attempting to transport and ship eight quails, which the said Dierker falsely charged plaintiff with killing in said county of St. Charles, to the city of St. Louis, and said John H. Dierker did also then falsely and maliciously charge plaintiff with unlawfully hunting game on Sunday, and then and there demanded of plaintiff the sum of $25 as security for plaintiff's appearance before a justice of the peace at said town of St. Charles; that plaintiff refused to pay or to deposit with said John H. Dierker any sum of money; that said Dierker then, in foul and profane language, threatened to transport plaintiff to the town of St. Charles, which said town was some ten or more miles distant. Plaintiff says that said false arrest was made in the nighttime, that the weather was cold and raw, and that he was not clad in garments sufficient to protect him from the cold, raw atmosphere during a ride in a wagon to St. Charles. Plaintiff also states that he was then and is now engaged in St. Louis, and was required to be at his place of employment on the morning of the 11th of November, 1901; that defendant John H. Dierker then, by force and violence, seized a gun belonging to plaintiff, and told plaintiff he would hold said gun as security for plaintiff's appearance before a justice of the peace in said town of St. Charles. Plaintiff says that, being intimidated by the violent threats of defendant Dierker, and being unwilling to undergo the exposure of a ride in a wagon to St. Charles, he yielded to defendant Dierker's unlawful seizure of said gun. Plaintiff says he was put to great expense by said false arrest, in the payment of attorney's fees and traveling expenses; that said false arrest was published in the daily papers of St. Louis, and the report of same was read by many people, to his shame and mortification. Plaintiff says that he has been actually damaged by reason of said false arrest in the sum of five hundred ($500) dollars, and plaintiff says that by reason of the unlawful arrest, and the violent and threatening manner thereof, he prays punitive or exemplary damages in the sum of fifteen hundred ($1,500) dollars." The answer was a general denial. At the conclusion of the testimony for appellant, the court gave an instruction in the nature of a demurrer to his case. He took a voluntary nonsuit, with leave to move to have it set aside, and, having moved ineffectually, prosecuted an appeal to this court.

As presented by the record, the facts are that the appellant, R. L. Brennan, and H. C. Tully, who are residents of the city of St. Louis, went to St. Charles county on Sunday, November 10, 1901, with a hunting outfit, stopped awhile at the house of an acquaintance by the name of Kline, then took a skiff and rowed about on the Mississippi river, finally landing at a small island or "towhead," which appellant insists was on the Illinois side of the river. They stayed on the island until late in the afternoon, but killed no game, nor, it seems, even fired a shot, until about the time they were leaving, when Brennan discharged his gun into the air. Seeburger is a station in St. Charles county where appellant and his companion expected to catch a train for St. Louis, and as they approached the station they were told by a man named Obershaw, who dwelt thereabouts, that the sheriff was at the station, waiting for them. When they got to the station, Dierker, who had no warrant for Brennan or Tully, accosted them, and what transpired was thus stated by Brennan in his testimony: "I was the first one to step on the platform—they had but one step off the track—and Mr. Dierker stepped up and said `Good evening,' and we said `Good evening' to him. He said, `Have you been hunting?' and, as I was somewhat disgusted with the day, I says, `I would be ashamed to disgrace the term by saying I have been hunting to-day.' He says, `Well, I am sheriff of this county, and you can consider yourself under arrest.' I says, `Let's see your authority.' He says `By God! I don't have to show you my authority.' He says, `I am sheriff, and that's all there is to it.' Just then Mr. Tully stepped up on the platform, with a cape on—it was kind of damp—and he grabbed the cape and says, `Here, you have been hunting.' He says, `Not in the state of Missouri.' He says, `If you tell me that, I will take you down, whether you are hunting or not.' He at that time grabbed Tully by the collar, at the same time making an effort to get his revolver. I stepped up and caught him by the shoulder and says: `You may be the sheriff, all right. We don't know that. You refused to show your authority, and we don't propose to be outraged.' He says, `By God! I am sheriff,' and he says, `That's all there is to it.' He says, `If you doubt my word, go over to old Bill Studer's house, and I will show you.' Mr. Tully says, `You should have your credentials on, to show it.' He says, `Have you a warrant for our arrest?' He says: `By God! I don't need a warrant. I am sheriff, and that's all.' At that time Mr. Jones and Mr. Wright stepped up, and he placed them under arrest. He says, `I want to tell you one thing,' he says: `I am sheriff of this county, and I intend to take you to St. Charles, and if any of you make an attempt to get on this train and dodge me,' he says, `by God! I will die in my tracks but what I take you; and, if you succeed in dodging me, I will take the engineer and fireman off the train, but what I take you'—all the time flashing his hand in his pocket. I told him I thought a little reasoning would be well there; that we were no criminals—we hadn't violated any law—but, if he would convince us he was sheriff, we would take off our hats to him. Just then Mr. Obershaw came up, and heard the conversation, and he identified him as sheriff, and then he says: `You will either give me twenty-five dollars in cash or your guns, or, by God! you will take a trip to St. Charles with me in a wagon.' Neither one of us felt like putting up twenty-five dollars. In fact some of us couldn't if we had wanted to. He says: `There's no chance for an argument. You will either give me the twenty-five dollars or the guns.' We still protested about giving him the guns, but finally, after Mr. Obershaw identified him, we told him we would submit to him as sheriff, and take his receipt for the guns he demanded. We then gave him the guns under protest, and took his receipt for the guns. Then the train came along, and we took the train for St. Louis." The next day Brennan went back to St. Charles—he says to redeem his gun, and not to stand trial or plead guilty to any charge that might have been instituted against him, as he was notified that such case would come up on the 13th instant. He expected to deposit $25 and obtain possession of his gun, which was an expensive one; and he had been instructed to get Tully's gun if he could do so without paying any money. The contention of the respondents is that on said day, to wit, November 11th, Brennan pleaded guilty both for himself and Tully to an information charging them with having quails to transport out of the county, and with hunting on Sunday, and paid the fines assessed and the costs....