Winters v. Campbell

• Decision Date: 07 July 1964
• Docket Number: No. 12295,12295
• Citation: 137 S.E.2d 188,148 W.Va. 710
• Court: West Virginia Supreme Court
• Parties: Sherman Lee WINTERS v. J. T. CAMPBELL.

Page 188

137 S.E.2d 188

148 W.Va. 710

Sherman Lee WINTERS v. J. T. CAMPBELL.

No. 12295.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1964.

Decided July 7, 1964.

Syllabus by the Court

1. A warrant of arrest for a person by the Fictitious name of Mary Doe, which charges the commission of an offense at a designated place but which contains no other description or means of identification of the person for whom it is issued, does not sufficiently identify the person to be arrested and is a void warrant; and the arrest of a person under such warrant is an illegal arrest.

2. A justice of the peace did not have jurisdiction of an offense created by the Sunday observance law, Section 17, Article 8, Chapter 61, Code, 1931, the statute in effect on December 10, 1961, and such offense was not within the authority conferred upon a constable by Section 2, Article 18, Chapter 50, Code, 1931, Section 6, Article 10, Chapter 62, Code, 1931, to make an arrest without a warrant for a misdemeanor committed in his presence; and the arrest by a constable without a warrant of a person who in the presence of the constable engaged in work on Sunday, December 10, 1961, was an illegal arrest.

3. When a person is arrested under a void warrant the arrest is illegal and the party who actively instigated, directed or procured the arrest of such person under such warrant is liable for false imprisonment.

4. An instruction which tends to mislead the jury is erroneous and should be refused.

5. A verdict which is clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.

Jenkins & Jenkins, John E. Jenkins, Jr., Huntington, for appellant.

Greene, Morgan & Ketchum, Edward H. Greene, Claude M. Morgan, Chad W. Ketchum, Huntington, for appellee.

HAYMOND, President.

In this civil action instituted in the Circuit Court of Cabell County in December 1961 the plaintiff, Sherman Lee Winters, a married woman, seeks a recovery of damages from the defendant, J. T. Campbell, which resulted from the alleged false arrest of the plaintiff by a constable of Cabell County upon a warrant issued by a justice of the peace of that county based upon a complaint signed by the defendant. Upon the trial of the case the circuit court overruled the several motions of the defendant to dismiss the complaint; for a continuance on the grounds of the absence of a material witness; to exclude certain evidence introduced by witnesses in behalf of the plaintiff; to direct a verdict for the defendant; and to declare a mistrial of the case. At the instance of the plaintiff the court instructed the jury that the warrant of arrest was void and did not authorize the arrest of the plaintiff and directed the jury to award the plaintiff such damages as in its opinion she was justly entitled to recover. The jury returned a verdict in favor of the plaintiff for $2,000.00. The court overruled the motion of the defendant to set aside the verdict of the jury and grant him a new trial and on April 12, 1963, refused to set aside the previously entered judgment for the plaintiff for the amount of the verdict and costs. From the final judgment in favor of the plaintiff this Court granted this appeal upon the application of the defendant.

For about six months before Sunday, December 10, 1961, the plaintiff had been a salaried employee at a retail store known as Heck's, located on Fifth Avenue, Huntington, Cabell County, West Virginia, and during the afternoon of that day was engaged in the discharge of her duties as such employee. The defendant was manager of the J. C. Penny Company store, also located in Huntington, Cabell County, West Virginia, and for some time previously he and other merchants in Huntington had considered and conferred with respect to enforcing the Sunday observance law against retail stores which operated on Sunday in that city. The defendant had also discussed the matter with the prosecuting attorney of Cabell County who testified that he outlined the Sunday observance statute to the defendant and informed him and his associates of the various ways in which they could proceed in enforcing it but that he did not advise them how to proceed.

After the defendant had learned that the Heck's store was open and operating on Sunday, December 10, 1961, and that the office of the justice of the peace was also open, the defendant visited the Heck's store, saw that it was open, went inside the store and observed its employees at work and people buying merchandise. He then went to the office of the justice of the peace, and there signed and verified a number of complaints for warrants of arrest. These complaints were written by the secretary of the justice of the peace who followed the form contained in a manual used by the justice of the peace and were prepared for Mary Doe or John Doe because the defendant did not know the names of the persons for whom they were intended. The secretary and the wife of the justice of the peace then prepared the warrants based on the complaints. After he signed the complaints the defendant left the office of the justice of the peace, went to a point on Fifth Avenue near the Heck's store to see what would happen, and remained there until the persons for whom the warrants were issued, including the plaintiff, had been arrested and had left by bus for the office of the justice of the peace but he did not participate or assist in making the arrests.

After the warrants had been issued they were delivered to a constable who in the company of another constable went to the Heck's store and arrested several of the employees, including the plaintiff, who were working there in the presence of the officers at the time of the arrest.

The complaint for the warrant for the arrest of the plaintiff signed by the defendant states that J. T. Campbell upon oath complained that on the 10th day of December, 1961, in the County of Cabell, State of West Virginia, Mary Doe, correct name unknown, did unlawfully labor at retail selling, at Heck's store, 2626 Fifth Avenue, Huntington, in Cabell County, West Virginia on the Sabbath Day, and that such labor was not household or other work of necessity or charity, and prayed that the said Mary Doe, correct name unknown, be apprehended and held to answer the complaint and be dealt with in relation thereto according to law. The warrant issued by the justice of the peace upon the foregoing complaint followed the language of the complaint and directed the constable to whom it was issued, in the name of the State of West Virginia, forthwith to apprehend the said Mary Doe, correct name unknown, and bring her before the justice at his office in Cabell County to answer the complaint and to be further dealt with in relation thereto according to law.

The defendant assigns as error the action of the circuit court (1) in instructing the jury to return a verdict in favor of the plaintiff; (2) in holding the warrant void and the arrest of the plaintiff to be illegal: (3) in permitting testimony in behalf of the plaintiff concerning derogatory remarks made about her by other persons in connection with the arrest; (4) in permitting certain witnesses in behalf of the plaintiff to testify concerning debts of the plaintiff and her husband, and certain illnesses, operations and medical bills of the plaintiff; (5) in refusing to give Instruction No. 1, offered by the defendant, in its original and its amended form; (6) in refusing to instruct the jury to disregard certain statements in the argument of counsel to the jury in behalf of the plaintiff and to grant a mistrial because of such statements; and (7) in denying the motion of the defendant to set aside the verdict on the ground that it is excessive.

The right of personal liberty is a high prerogative right and a person can not be deprived of that right without due process of law. State v. Lutz, 85 W.Va. 330, 101 S.E. 434. The law is extremely jealous of the liberty of the individual citizen, Porter v. State, 124 Ga. 297, 52 S.E. 283, 2 L.R.A., N.S., 730; and this solicitude is expressed in constitutional and statutory provisions. Section 6, Article III of the Constitution of this State contains the provision, which is identical with that contained in the Fourth Amendment to the Constitution of the United States, that 'No' warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.'

It is essential to the validity of a warrant that the person to be arrested be identified by its terms, and a warrant does not authorize an arrest unless the person to be arrested is sufficiently named or otherwise described in the warrant. When a warrant does not contain the name of a person to be arrested the description of such person must be sufficient to identify him clearly. A warrant for the arrest of 'John Doe' or some other fictitious name, which contains no sufficient description of the person to be arrested, is void. 5 Am.Jur.2d, Arrest, Section 9.

In Voorhees, The Law of Arrest, Second Edition, page 85, the author, citing Commonwealth v. Crotty, 10 Allen (Mass.) 403, says that when 'a warrant is issued against 'John Doe or Richard Roe, whose other or true name is to your complainant unknown,' with no other description or means of identification, the warrant is absolutely void and may be resisted with all necessary force.' In the Crotty case the Supreme Judicial Court of Massachusetts, in holding invalid a warrant for the arrest of John Doe or Richard Roe, without further description, in the opinion used this language:

'We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendants at the time of the alleged riot was insufficient, illegal and void. It did not contain the name of the defendant, nor any description or designation by...