E. I. Du Pont De Nemours Powder Co. v. Hyde

77 So. 733, 201 Ala. 207, 1917 Ala. LEXIS 109

• Court: Supreme Court of Alabama
• Decided: November 15, 1917
• Docket: 6 Div. 543.
• Status: Published

Opinion

SOMERVILLE, J.

The issue actually tried upon the charge of assault was whether defendant’s agent presented the pistol at plaintiff with menace. And the issues actually tried upon the charge of false imprisonment were: (1) Whether plaintiff had knowledge of the posted warnings around the premises forbidding trespassing thereon; (2) whether plaintiff failed to leave the premises immediately upon the request of defendant’s servant; and (3) whether plaintiff .was under any duress under said servant after they left defendant’s premises. The evidence being in conflict, all of these questions were properly submitted to the jury.

[1] There was no eviderice tending to support the inference that plaintiff’s companion, Robinson, told him that the land was posted and trespassing thereon forbidden. For this reason charge 17 was properly refused to defendant.

[2] Unquestionably, if plaintiff was willfully trespassing on these premises, his severing and removing of the blackberries — of less than $5 in value — with larcenous intent was a public offense (Acts 1911, p. 625), and, being committed in defendant’s servant’s presence, plaintiff’s arrest without warrant was authorized. Code, § 6273. Had defendant requested an instruction to this effect, it would seem that its refusal .would have been reversible error.

[3] But this theory of the case seems to have been completely ignored by both court and counsel, and it is safe to assume that it was unknown to the jury, and did not enter at all into their determination of the result. All of the written instructions given for defendant, and all of the testimony elicited, are centered upon the theory that the public offense charged as a basis for the alleged arrest was a trespass after warning.

Charge A given for plaintiff was obviously intended as a counter merely to those instructions, and in that sense it asserts no more than the correct proposition of law that plaintiff’s mere wrongful presence on the premises, and mere wrongful picking of the berries, did not justify his arrest, unless followed by his failure to leave after warning. The instruction was free from error.

[4] Conceding, without deciding, that defendant was entitled to show that his arresting servant, Morrow, was himself thereafter arrested on the complaint of plaintiff, yet defendants’ offer was to show not only that fact, but also that Morrow was tried and acquitted. The latter fact was irrelevant to this case, and rendered the whole offer bad. Matthews v. Farrell, 140 Ala. 298, 37 South. 325. Moreover, defendants’ bias against Morrow was otherwise so unmistakably apparent that this ruling could scarcely have been of prejudice to defendant in any event.

[5] It was 'not competent for Morrow to state his reason for carrying his pistol in his walks about the premises, nor the independent fact that two previous watchmen had been shot on those premises. It was in evidence that he was the watchman and was carrying the pistol according to habit, and not with any reference to plaintiff’s presence there, and this was sufficient for the issues of this case.

[6] The fact that plaintiff was tried before a justice for trespassing was not relevant to any issue of this case, and was properly excluded. There was no suggestion in the evidence of an unreasonable delay in carrying plaintiff before a justice. In fact, he was released from Morrow’s custody before he was afterwards tried. Hence the question, “You were tried before Mr. Self for trespassing? ” has no bearing on the question of Morrow’s diligence in taking plaintiff before a justice.

The damages awarded to plaintiff are higher than the circumstances of the case warrant. We think that $250 is a fair maximum, and the judgment will be reduced to that amount, under the power given this court under the statute, subject to acceptance by the plaintiff. If plaintiff’s acceptance thereof is not expressed within the time and in the mode provided by law, the judgment will be reversed and the cause remanded for another trial. Otherwise, the judgment will be affirmed as corrected.

Corrected and affirmed.

ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.