Stewart v. Feeley

• Decision Date: 18 December 1902
• Citation: 92 N.W. 670,118 Iowa 524
• Parties: SAMUEL F. STEWART, Appellant, v. BERNARD J. FEELEY Appellee
• Court: Iowa Supreme Court

92 N.W. 670

118 Iowa 524

SAMUEL F. STEWART, Appellant, v. BERNARD J. FEELEY Appellee

Supreme Court of Iowa, Des Moines

December 18, 1902

Appeal from Des Moines District Court.--HON. JAMES D. SMYTH, Judge.

ACTION for wrongful arrest and false imprisonment. Trial to a jury verdict and judgment for defendant, and plaintiff appeals.

Reversed.

Huston & Lauder for appellant.

No appearance for appellee.

OPINION

DEEMER, J.

That plaintiff was arrested by defendant, who is a policeman in the city of Burlington, taken to the city jail, and there searched, locked in a cell, and within twenty minutes thereafter released by defendant and the station officer is conceded. The arrest was made about 9 o'clock a. m., and there is evidence tending to show that it was accompanied by harsh, severe, and brutal treatment, although this is denied by defendant, and the jury accepted the denial as truth. Defendant pleaded in justification that he arrested plaintiff without a warrant under an ordinance of the city of Burlington, giving him authority and making it his duty to make an arrest of all suspicious characters wandering about the thoroughfares of said city, or who are acting suspiciously, and who cannot give satisfactory reasons why they are so wandering about. He further pleaded that plaintiff was so wandering and acting at the time of his arrest, and refusing to give satisfactory reasons therefor, defendant placed him under arrest. It will be observed that defendant relied solely on the plaintiff's violation of the city ordinance in justification of the arrest, and pleaded that plaintiff had in fact violated that ordinance.

Notwithstanding the issues thus plainly made by these pleadings, the trial court instructed with reference to vagrancy, under the general statutory provisions, and also gave the following:

"Fifth. It is provided by the statute law of this state that all persons wandering about, and having no visible calling or business to maintain themselves, shall be considered vagrants, and that peace officers, upon finding persons engaged in the violation of this law, may arrest them and take them before a magistrate, to be dealt with as by law provided. It is claimed on the part of the defendant that in the arrest and detention of the plaintiff he was acting under this provision of law, and that he had at the time reasonable grounds to believe that the plaintiff was a violator of the same."

"Sixth. The defendant sets forth in his answer a certain ordinance of the city of Burlington, under which he claims to have acted in the said arrest of the plaintiff. But you are instructed in this connection that said ordinance is valid only so far as it states and is consistent with the said statute of the state relating to vagrants, as above explained to you; and so far as the said ordinance may attempt to extend the said law of the state, and impose additional restrictions upon citizens, it is void and has no effect, and will afford the defendant in this case no protection for any act he may have committed in violation of law."

As defendant did not claim to have acted under the state law, but in virtue of the specific provisions of an ordinance adopted by the council of the city of Burlington, these instructions were plainly erroneous. Plaintiff was not required to negative any offense save that for which he was arrested, and when the trial court injected into its instructions another, and one which plaintiff was not called upon and had not attempted to meet, it committed error for which there must be a reversal.

The defendant pleaded that plaintiff was wandering about the thoroughfares of the city, and refused to give satisfactory reasons therefor. In its ninth instruction the trial court said, among other things, "that if defendant had reasonable grounds, under the circumstances, and in the exercise of ordinary prudence and caution, to believe, as a reasonable man, that the plaintiff was without visible calling or business by which to maintain himself, and acted in good faith upon such belief in making the arrest, you should find that the same was lawful, even if the defendant had no formal warrant for the same." No such issue as is here presented was involved in the case, and the error in the charge is apparent.

The sixth instruction, which we have quoted, was also erroneous for the reason that it was the duty of the court to tell the jury that the provision of the ordinance on which defendant relied was either valid or invalid, and not to leave it to that body to select out what it conceived, under the...