Yancey v. Fidelity & Cas. Co. of N. Y., s. 36692

• Decision Date: 12 September 1957
• Docket Number: 2,Nos. 36692,36721,Nos. 1,s. 36692,s. 1
• Citation: 100 S.E.2d 653,96 Ga.App. 476
• Parties: YANCEY, Administratrix v. FIDELITY & CASUALTY COMPANY OF NEW YORK FEDELITY & CASUALTY COMPANY OF NEW YORK. v. YANCEY, Administratrix
• Court: Georgia Court of Appeals

Page 653

100 S.E.2d 653

96 Ga.App. 476

YANCEY, Administratrix v. FIDELITY & CASUALTY COMPANY OF NEW YORK

FEDELITY & CASUALTY COMPANY OF NEW YORK. v. YANCEY, Administratrix.

Nos. 36692, 36721.

Court of Appeals of Georgia, Division Nos. 1, 2.

Sept. 12, 1957.

Rehearing Denied Oct. 9, 1957.

Syllabus by the Court

1. The evidence demanded a finding that the Sheriff of Gwinnett County, Georgia, illegally arrested J. W. Yancey on the occasion involved in the present action.

2. Error in admitting evidence is not ground for reversal where substantially the same evidence is later admitted without objection.

3. A document itself is the highest and best evidence as to what it contains.

4. Evidence as to what someone other than the witness knew was hearsay.

5. It was not error to admit a certified copy of the warrant in evidence over objection, when evidence as to the contents of the warrant had been admitted in evidence unobjected to.

6, 7. The charge to the jury should be adjusted to the pleadings and evidence.

8. Contentions made in a bill of exception which are abandoned present no question for decision.

9. Under the circumstances of the instant case the copies of the warrants showing prior arrests and convictions of the person allegedly illegally arrested should have been allowed in evidence.

Mrs. Irene Yancey, as temporary administratrix of the estate of J. W. Yancey, deceased, brought an action against the Fidelity & Casualty Company of New York as surety on the official bond of Crawford Pittard, Sheriff of Gwinnett County, Georgia. It was alleged that Sheriff Pittard had illegally arrested the deceased and placed him in the Gwinnett County jail and refused to permit a bond to be made for him, and that while so incarcerated he died. On the trial the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial on the general grounds which was later amended so as to include several special grounds. The amended motion was denied, and it is to this judgment that the plaintiff excepts in the main bill of exceptions.

In the cross-bill of exceptions the defendant excepted to the denial of its motions in which it was insisted that the trial court lacked jurisdiction to hear the case, and to the rejection of certain evidence on the trial.

Daniel Duke, Atlanta, for plaintiff in error.

Allison & Pittard, Lawrenceville, Lokey & Bowden, Hamilton Lokey, Atlanta, for defendant in error.

NICHOLS, Judge.

1. The usual general grounds of the motion for new trial will be dealt with first.

The action was brought against the surety on the sheriff's official bond for the alleged illegal arrest of the now deceased J. W. Yancey, it being alleged that the said J. W. Yancey died while incarcerated in the county jail after the alleged illegal arrest. The uncontradicted evidence showed that prior to 7:30 p. m. on the date of the alleged illegal arrest the sheriff procured a warrant for the arrest of the deceased which was not to be used unless the deceased should violate the law on the night of the arrest (there having been no known violation by the deceased prior to the issuance of the warrant), that later the deceased did violate the 'liquor laws' by selling 'moonshine' to an 'undercover agent,' that no arrest was made at the time of the violation, that after this violation the sheriff and his 'aides' (certain Federal and State agents), made a 'round up' of other known violators for whose arrests warrants had been obtained, and then returned to the home of the deceased where the 'undercover agent' sought to obtain another violation by the deceased, but was unsuccessful because the deceased was sold out, and that the arrest was then made by the sheriff and the 'undercover agent,' not under the warrant, but because the alleged violation took place in the presence of the 'undercover agent' some two and one-half or three hours earlier.

The defendant relies, not on any authority to make an arrest for the alleged misdemeanor under a warrant, but on the authority to make an arrest for a misdemeanor committed in the presence of the arresting officer.

The true rule, as shown in Reed v. State, 195 Ga. 842, 849, 25 S.E.2d 692, 697, is: 'The rule is that an officer has a right to arrest for a crime committed in his presence; but there is an exception to this rule, which provides that the rule does not apply if the officer does not act on the occasion he sees the crime committed, but delays and seeks to make the arrest on a subsequent occasion after he had had ample time and opportunity to procure a warrant. The rule will be found in the Code, § 27-207, and decisions of this court. Graham v. State, 143 Ga. 440, 85 S.E. 328, Ann.Cas.1917A, 595; Glaze v. State, [supra,] 156 Ga. 807, 120 S.E. 530; Faulkner v. State, 166 Ga. 645, 144 S.E. 193, and cit. Cases where the exception to this rule has been applied are Porter v. State, [supra] 124 Ga. 297, 52 S.E. 283, 2 L.R.A. (N.S.) 730; Yates v. State, 127 Ga. 813, 56 S.E. 1017, 9 Ann.Cas. 620, yet each of these cases recognizes the rule as above stated, but applies the exception because the arrest was attempted subsequently to the time the crime was committed, and after there had been sufficient opportunity to procure a warrant. We may add further, that where a crime is committed in the presence of an officer, it is not only his right then and there to arrest without a warrant, but it is his duty to do so. Earl v. State, 124 Ga. 28, 52 S.E. 78.'

Therefore, the question presented is: Did the sheriff and the 'undercover agent,' who made the arrest in the present case, after leaving the home of the deceased after he had allegedly sold the 'moonshine' in violation of the law, have ample time and opportunity to procure a legal warrant before the arrest was made?

The evidence discloses that the arresting officers were engaged in a county-wide 'roundup' of 'liquor law violators' during the interval from the time the alleged illegal sale was made to the time the arrest was made, and that while being so engaged there was no time left in which to obtain a warrant for the arrest of the deceased based on the violation which occurred when the deceased sold 'moonshine' to the 'undercover agent.'

It cannot be said that the sheriff and his aides were not zealously engaged in their duties during the time that they were arresting those persons who were allegedly violating the 'liquor laws' of this State. They were helping to rid Gwinnett County of those who were allegedly selling 'moonshine.' However, was this enough to authorize the sheriff to circumvent the right of the deceased to a lawful arrest under a warrant where he was not arrested at the time he allegedly committed the misdemeanor in the presence of an officer? 'The law is very jealous of the liberty of the citizen. In proportion as the offense is less serious, the greater the formality prescribed for the exercise of the power to deprive the citizen of his liberty. If the offense be a felony, an arrest may be made by a private person or an officer without a warrant, if the citizen suspected of the felony is endeavoring to escape; but, if the offense be a misdemeanor, then, even before an officer will be authorized to arrest, he must bring himself within the exception provided in the Pen.Code, 1895, § 896, [Code of 1933, § 27-207].' Porter v. State, 124 Ga. 297, 302, 52 S.E. 283, 285, 2 L.R.A., N.S., 730.

The defendant presented evidence to show that the sheriff and his 'aides' were busy rounding up other violators during the time that intervened between the alleged violation by the deceased and his arrest, however, this is of no concern in deciding the case. These other violators were not connected with the deceased, and although, as contended by the defendant, the other violators might have taken their leave had the deceased been arrested at the time he made the alleged sale, the fact that other persons might escape arrest is of no concern to an accused who has no connection with the other persons. He is entitled to the same protection of the law as are other persons. The 'undercover agent' was authorized to arrest on the spot, but neither he, not the sheriff, was authorized to arrest the now deceased J. W. Yancey without a warrant after they had had ample time and opportunity to procure a warrant. The evidence disclosed that the sheriff and his 'aides' had turned aside from and pursuit of the deceased and for two and one-half or three hours had been engaged in duties foreign to such pursuit, that during this time they had passed near the homes of two or more magistrates from whom a warrant for the arrest of the deceased could have been obtained, but that no effort was made to obtain a warrant for his arrest. Under the evidence neither the sheriff, on whose bond the present action was brought, nor the 'undercover agent', was authorized to arrest the deceased at the time he was arrested without a warrant. Accordingly, the grant of a new trial is demanded on the usual general grounds.

2. Special grounds 1 and 2 of the amendment to the motion for new trial complain of the admission of evidence, over the plaintiff's objection, with reference to a round up being made of various persons suspected of selling 'moonshine' and the effect of arresting the first violator before securing evidence of violations by the other suspected violators.

It is unnecessary to determine if the evidence complained of was admissible or inadmissible because as was said in Healen v. Powell, 91 Ga.App. 787(2), 87 S.E.2d 332, 333; 'Error in improperly admitting evidence is not ground for reversal where the same evidence is subsequently admitted without objection.' In the present case the plaintiff objected to the admission of such evidence when I. W. Davis, the 'undercover agent', was testifying, but no objection was made when Sheriff Pittard testified to substantially the same facts. See also G. Bernd Company v. Rahn, 94 Ga.App. 713, 722,...