Wolcott v. Bachman

• Decision Date: 05 February 1890
• Parties: WOLCOTT v. BACHMAN
• Court: Wyoming Supreme Court

23 P. 72

3 Wyo. 335

WOLCOTT v. BACHMAN

Supreme Court of Wyoming

February 5, 1890

Error to district court, Converse county.

This was an action for false imprisonment brought by the defendant in error against the plaintiff in error. The latter, being a justice of the peace in the county of Albany, sentenced the defendant in error to imprisonment in the county jail for vagrancy without any criminal complaint being made, the defendant in error being at that time before the justice on another charge. W. F. Mechum, another justice of the peace in whose precinct the plaintiff in error was acting at the time, carried the sentence into effect by issuing a mittimus under which the defendant in error was imprisoned. Upon a trial by jury in the district court of the county of Converse, a verdict was returned for the plaintiff, Bachman assessing his damages at $ 3,500. The defendant, Wolcott moved the court for a new trial, alleging in his motion that different errors had been committed by the court during the trial of the cause. The motion being overruled, judgment was entered for the plaintiff upon the verdict. Reversed.

Judgment reversed.

Corlett, Lacey & Riner, for plaintiff in error.

H. V. S. Groesbeck, for defendant in error.

VAN DEVANTER, C. J. CORN, J., concurs. SAUFLEY, J., dissenting.

OPINION

VAN DEVANTER, C. J.

The petition in error contains 15 assignments of error, the first 14 of which relate to alleged errors occurring upon the trial, and the fifteenth is based upon the overruling of the motion for a new trial. Errors occurring upon the trial can only be preserved and fully brought into the record by a motion for a new trial, and, if such errors are not made the basis of a motion for a new trial in the court below, they are waived, and this court cannot consider them. Then, since it is necessary to complain of such errors in a motion for a new trial in order to ultimately bring them to the attention of the appellate court, they should not be separately assigned as error here, but will be sufficiently included in the assignment that there was error in the overruling of the motion for a new trial. This, however, is only true as to such matters as are properly grounds for a new trial, and all other errors in the rulings and decisions of the trial court should be separately assigned as such. U.S. v. Trabing, ante, 144, 3 Wyo. 144, 6 P. 721.

Without considering the first 14 assignments in this case, we will inquire whether there was error in the overruling of the motion for a new trial. In its charge to the jury, the court gave the following instruction, over the objection of the defendant: "If you find as a fact that this plaintiff was imprisoned in the Albany county jail upon a commitment or mittimus issued by Justice of the Peace Mechum, and you find that the commitment was in pursuance of a supposed or alleged sentence of a justice of the peace sentencing this man to be imprisoned for the alleged crime of vagrancy, if you find those to be the facts, then I charge you that would constitute false imprisonment, as to Mechum, upon its face. You are not trying Mechum. You must further find that Mechum was directed or controlled by this defendant." This instruction assumes that a justice of the peace does not have jurisdiction to commit to the county jail for vagrancy, and in so doing it palpably misstates the law. Our statute (section 3647) specially confers jurisdiction of the offense of vagrancy on justices of the peace, and authorizes the commitment of the offender; but this instruction states that such a commitment is in itself false imprisonment. To illustrate the falsity of the statement contained in the instruction, the plaintiff might have been imprisoned in the Albany county jail upon a commitment or mittimus issued by Justice of the Peace Mechum, and that commitment might have been in pursuance of a sentence of a justice of the peace sentencing the plaintiff to be imprisoned for the crime of vagrancy, and still the proceedings before the justice and the imprisonment might in all respects have been in strict conformity to law. The language of the instruction does not necessarily refer to an unlawful sentence, for it is broad enough in its terms to include a sentence which is entirely lawful. The only intimation found in the instruction as to the character of the sentence therein referred to is in the use of the phrase, "a supposed or alleged sentence;" but this expression can in no manner be construed to mean, or be equivalent to, a void or unlawful sentence. As before shown, a justice of the peace has jurisdiction of the offense, which is the subject-matter, so that if he obtain jurisdiction over the person of the offender he may then lawfully impose the imprisonment. In this case, one point of contention was as to whether the plaintiff had submitted himself to the jurisdiction of the justice, and this, being a question of fact, should properly have been submitted to the jury, but by the court's charge the jury was precluded from in any manner considering the matter of jurisdiction; for they were, in effect, told by this instruction that if they should find that the defendant directed the imprisonment of the plaintiff, then the liability of the defendant was established. Thus the court determined for the jury that the justice was without jurisdiction of the person, and that the imprisonment was unlawful. The instruction complained of was clearly erroneous as a proposition of law, and could not have done otherwise than mislead the jury. The giving of the instruction having been complained of in the motion for a new trial, that motion should have been sustained. The judgment of the court below is reversed, and a new trial ordered.

CORN, J., concurs.

DISSENT BY: SAUFLEY

SAUFLEY J. I dissent from the opinion delivered by the chief justice. In presenting the reasons for my dissent, I will, for the sake of convenience, mention Wolcott as the defendant, and Bachman as the plaintiff; such being their attitude towards each other in the trial court. The instruction given by the district court, which is made the ground of reversal, is as favorable to the defendant as either the pleading or the proof warrant. It is, moreover, and seemingly, in restraint of plaintiff's right of recovery, expressed in cautionary language stronger than need be. There may be records before this court which exhibit acts of oppression, on the part of the strong towards the weak, more offensive to the law than does this, but I have not seen them. Nor do I recall, during the course of my experience at the bar, the conduct of any one in authority more clearly outside the line of duty, --more obviously beyond the scope of legitimate power. I propose to show--First, that under the pleading the district court could not have given an instruction different in legal intendment from the one given; and, second, that if the answer of the defendant to the charge of false imprisonment had been in avoidance instead of by common traverse, still, under the proof, the court could not have given a different instruction.

Considering the last proposition first, it will be necessary to succinctly state the chief facts as they appear of record. In the month of May, 1887, Bachman, being then a young man of about 20 years of age, was residing in the village of Douglass, Wyo. In this month he was arrested on a charge of grand larceny, preferred by a worthless character, who was himself subsequently sent to the penitentiary. The warrant was issued by Justice Mecum, and the trial had, on a change of venue, before the defendant, Justice Wolcott. The examination resulted in a discharge of Bachman. At the conclusion of this investigation, Justice Wolcott, without any charge being made against Bachman, without any evidence heard, without even the form or pretense of a trial, conceived the idea of sending Bachman to jail for three months, and fined him $ 100, on the supposition that he was a vagrant. I will here quote a part of the testimony of Mr. Nichols, the prosecuting attorney in the grand larceny examination, and a part of the testimony of Mr. Camplin, who represented Bachman. The defendant, Wolcott, did not testify.

In reply to a question by plaintiff's counsel, asking what transpired at the conclusion of the investigation of the larceny charge, Mr. Nichols said: "He [Wolcott] said a great deal. He called the gentleman up, and lectured him for quite a long time. He then made the remark that he was going to sentence him to pay a fine of $ 100, and imprisonment in the county jail at hard labor for three months, on the ground that he was a vagrant. He said it was not probably just in accordance with law to do that. Ordinarily, a man ought to be charged with that offense, but inasmuch as the man was before him, he would waive the technicalities of the law, and would assume the responsibility, and did not want any advice from the prosecuting attorney. Question. Did you attempt to advise him? Answer. I did. He said he was running that himself, and would take the responsibility. Q. Did you hear the defendant make a demand for a trial, --the defendant in that case and the plaintiff in this case? A. It is my recollection that his counsel demanded it, and I think the defendant said something about it, and objected to being sentenced without a trial, and wanted a trial. Q. Do you know whether or not it was refused by the defendant, Wolcott? A. Yes, sir; I know that he said he could not have any trial. " In a few minutes after this extraordinary proceeding had ended. Nichols met the justice in front of his office, and remonstrated with him on the illegal course he had taken, and asked an explanation. To this Wolcott responded that they did not try cases in this...