Westberry v. Clanton

• Citation: 72 S.E. 238,136 Ga. 795
• Parties: WESTBERRY v. CLANTON.
• Decision Date: 22 September 1911
• Court: Supreme Court of Georgia

72 S.E. 238

136 Ga. 795

WESTBERRY v. CLANTON.

Supreme Court of Georgia

September 22, 1911

Syllabus by the Court.

At common law a public officer could not lawfully arrest without a warrant for an offense not a felony, when not committed in his presence, except as provided by St. Winchester, c. 4, an arrest of any suspicious nightwalker might be made by watchmen; or a justice of the peace, by word of mouth, might authorize the arrest of one engaged in a riot not in the presence of the justice. 4 Bl. Com. *292; 2 Hawk. P. C. 127 et seq.; 2 Hale's P. C. 85, 86, 98; 2 Addison on Torts, § 802. See Porter v. State, 124 Ga. 297, 301, 52 S.E 283, 2 L.R.A. (N. S.) 730.

The contrary not appearing, it will be presumed that the common law exists in the state of Alabama (Wells v. Gress, 118 Ga. 566 (2), 557, 45 S.E. 418), and therefore that a public officer in that state is not authorized to make an arrest without a warrant for a misdemeanor not committed in his presence.

False imprisonment at common law and elsewhere consists in the unlawful detention of the person of another for any length of time, whereby he is deprived of his personal liberty (3 Bl Com. *127; 12 Am. & Eng. Enc. Law, 721; 19 Cyc. 319; Civ Code 1910, § 4447, which is a codification of the common law), and furnishes a right of action for damages to the person so detained. The only essential elements of the action being the detention and its unlawfulness (3 Bl. Com. *127) malice and the want of probable cause need not be shown ( Chivers v. Savage, 85 Eng. Com. Law R. 696; Brandt v. Craddock, 27 L. J. [N. S.] 314; 12 Am. & Eng. Enc. Law, 726, citing, among other cases, Rich v McInerny, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32).

Accordingly where, upon the trial of an action brought in this state, embracing several counts, one of which was for false imprisonment, it appeared that the plaintiff was arrested and imprisoned in the state of Alabama by a police officer of a city of that state, by virtue of a telegram sent to him, at the instance of the defendant, by a sheriff of this state, the defendant writing the telegram and by authority of the sheriff signing the latter's name thereto, the defendant having previously had a warrant issued in this state, charging the plaintiff with having committed in this state "the offense of a misdemeanor," it was error for the court to give the jury the following instructions: (a) "If the imprisonment is by virtue of a warrant, the party bona fide suing it out is not guilty of a false imprisonment." (b) And, in general terms, without confining the instruction to the counts other than that for false imprisonment, that the plaintiff must show by a preponderance of the evidence "that the defendant acted in the matters complained of with malice and without probable cause. Those two ingredients must occur before he can recover." There was no evidence to authorize instruction "a." The imprisonment was by virtue of the telegram, the police officer having no warrant, and the warrant in the hands of the sheriff in this state had no force in Alabama. Scott Eldridge, 154 Mass. 25, 27 N.E. 677, 12 L.R.A. 379; Simmons v. Vandyke, 138 Ind. 380, 37 N.E. 973, 26 L.R.A. 33, 46 Am.St.Rep. 411; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am.St.Rep. 27; State v. Shelton, 79 N.C. 605; Malcomson v. Scott, 56 Mich. 459, 23 N.W. 166; Harris v. Louisville, etc. (C. C.) 35 F. 116; 2 Am. & Eng. Enc. L. (2d Ed.) 882; 5 Enc. L. & P. 477 et seq. Instruction "b" was error, because,...