Newburn v. Durham

32 S.W. 112, 10 Tex. Civ. App. 655, 1895 Tex. App. LEXIS 150

• Court: Court of Appeals of Texas
• Decided: June 20, 1895
• Docket: No. 781.
• Status: Published

Opinions

PLEASANTS, Associate Justice.

Appellant brought suit against appellees for the recovery of damages for the alleged false imprisonment of appellant by appellee Durham. Durham was the marshal of the town of Palestine, Texas, and the other appellees were the sureties upon his official bond. The trial resulted in a verdict and judgment for the defendants, and the plaintiff appeals to this court, The record discloses the following facts: Early in the month of July, 1893, a robbery was committed on a passenger train of the International & Great Northern Bailway Company in the county of Anderson, between the two towns of Palestine and Nechesville, and near to the latter town; and on the 23rd day of August, 1893, the appellee Durham made complaint against “Arch” Newburn and Jim and Sam Shields, charging them jointly with train robbery; and upon said complaint, J. E. Watts, a justice of the peace for the county of Anderson, issued a warrant for the arrest of the accused. This warrant was issued on the same day the complaint was made, and was directed to the sheriff of Anderson County, or any constable thereof, or to B. A. Durham, marshal of the' city of Palestine; and on the same day Durham arrested the appellant and one of the other parties named in the warrant, while they were at work in a brick yard in the town of Nechesville, and carried them through the town to the depot of the International & Great Northern Railway, and upon the arrival of the train for Palestine they were taken by rail to the depot in Palestine, and were taken thence through the streets of the town to the county jail, and there turned over to the sheriff of the county, and by him kept not in jail, but in his dwelling house, until the next morning, when they were brought before justice Watts, and the examination was postponed to a future day, and the appellant gave bond for his appearance, without objection to the postponement of the examination, or without making exception to the warrant of arrest, so far as appears from the record. The arrest was made in the afternoon, and it was after nightfall when the officer and his prisoners reached Palestine.

Jim and Sam Shields were sons of J. A. Shields, who was the justice of the peace for the precinct which includes the town of Nechesville, and he was the owner of the brick yard where the arrest was made, and the appellant was in his employment and boarded in his family at the time he was arrested; but appellant did not board with him, nor was he in his employment, at the time of the robbery. The train was robbed on the night of the 6th of July, a mile and a half from Nechesville; and on the morning after, at or near the scene of the crime, pieces of money and torn money packages, lottery tickets, and an envelope with Jim Shields’ name on it, were found; and at a distance of three-quarters of a mile from the robbery foot tracks were discovered, which were followed near to the corner of J. A. Shields’ field, and but a short distance from his house, and at this point other lottery tickets were found; and upon these facts a search warrant was issued, and Shields’ premises were searched on the 7th of July, but without discovering anything to implicate the Shields brothers in the crime with which they were charged by Durham.

Shortly after the robbery, a mulatto, who seems to have been a stranger in the county, was found under the depot at the town of Nechesville, and he was arrested upon suspicion merely, it would seem, and imprisoned in the county jail for some two weeks, when he was dis charged; and at the time of the trial of this cause he had disappeared, and his whereabouts was unknown. This man, who in the record is called “Kid Henry,” informed the appellee Durham that he was on the train at the time of the robbery; that he was “stealing a ride,” and that he would recognize the robbers if he could see them; that the men were masked when they committed the robbery. He also told Durham that three men got on the train at Nechesville, and that they came from towards a gin house, where they had been under a tree. On the morning of the 7th, the day after the robbery, foot tracks were found leading from a tree near the gin referred to by Henry, towards the track of the railway. The day before the arrest of the appellant, Kid Henry was taken by appellee Durham to Kechesville, and before reaching the town Durham instructed Henry to separate from him, and to go into the town and see if he could discover any of the robbers, and Durham himself went to Shields’ brick yard, where, among others at work, were appellant and Sam Shields. While there, Durham observed Henry to come up through the woods to the yard, and to engage in conversation with appellant and Sam Shields; and afterwards Henry told Durham that appellant and Sam Shields were two of the robbers; that he recognized both of them as two of the men who committed the robbery on the 6th of July. On the 23rd of August, some time before he made the arrest of appellant, Durham learned from a resident merchant of Hechesville that appellant’s name was not “Arch” but “Geary” Uewburn, and upon receiving this information, Durham erased the name of “Arch” from the warrant of arrest, and in lieu thereof inserted the Christian name of appellant.

The defendant Durham answered the petition, admitting that he made the arrest, but denied that he did so unlawfully or wrongfully. He averred, that at the time of the arrest he was marshal of the town; and in addition to the facts which we herein stated, he alleged, that at the time he made complaint to the justice he was not certain as to the Christian name of the plaintiff, but from inquiries he had made he believed it to be “Arch;” that he stated the facts to the county attorney and the justice of the peace, and the complaint was drawn by the county attorney, and defendant was instructed by that officer and the justice to arrest the Hewburn who had been pointed out by Henry; that said warrant was directed to the sheriff of Anderson County, or to any constable thereof, or to B. A. Durham, city marshal of Palestine; that before defendant made the arrest, he ascertained that the true name of plaintiff was Geary, and that defendant, believing he had the right to do so, erased the name “Arch” from the warrant and inserted in lieu thereof plaintiff’s true name, and that he made the arrest on this warrant; and that he had good reason to believe, and did believe, that the plaintiff was guilty of the robbery, and that he was about to escape; and that defendant did not have time to procure a warrant with the plaintiff’s name inserted by the justice who issued the warrant; that the arrest was made at Hechesville, distant about twelve miles from Palestine; that the justice of the peace for the Hechesville precinct was J. A. Shields, the father of the parties jointly charged with plaintiff in the warrant, and that no other magistrate than this justice was nearer to Uechesville than justice Watts; that defendant was accompanied by the sheriff of the county from Palestine, and that that officer was present when the arrest was made, and that plaintiff voluntarily surrendered to him.

The other defendants excepted to the plaintiff’s petition, for the reason that it showed no cause of action against them, and that the facts alleged did not make them liable for the alleged trespass of the defendant Durham; and if their demurrer should be overruled, for answer they denied all and singular the averments of the petition.

The plaintiff filed general and special exceptions to the answer of the defendant Durham. These demurrers by plaintiff, as well as' the demurrer of the defendants, the sureties of the defendant Durham, were overruled by the court; and both plaintiff and said defendants excepted to the action of the court in overruling their respective demurrers, and have each assigned same as error.

We are of the opinion that the answer of the defendant Durham avers nothing in justification of the arrest of plaintiff, and presents no bar to plaintiff’s action; and unless the facts averred in the answer are admissible in mitigation of defendant’s conduct, the general and the first special exception to the answer should have been sustained.

Any unlawful detention of a citizen, by either an officer of the law ór a private person constitutes false imprisonment, no matter what may have been the motive or purpose of the party so detaining the other, and for such imprisonment the party injured should have his damages; and ordinarily, where only actual damages are sought to be recovered, evidence in mitigation is not admissible. . But in this case the plaintiff, while not praying for exemplary damages, makes a case, by the averments of his petition, which would authorize a recovery for such damages. The mental suffering consequent upon an unlawful arrest must in a great degree depend upon the manner in which the arrest is made and the attendant circumstances. If there be no excuse whatever for the arrest, and if it be effected with violence and rudeness of language or manner, the injury to the feelings must be much greater than when the arrest is made without any such circumstances of aggravation.

The petition does not simply charge that the plaintiff was unlawfully arrested and deprived of his liberty by the defendant; but it avers that the defendant, “with force and arms, and without any authority of law, and without any reasonable or probable cause whatsoever, and without any legal warrant of arrest, did unlawfully, oppressively, willfully, wickedly, and without plaintiff’s consent, assault plaintiff.” In rebuttal of these charges of aggravation, we think the defendant should be permitted, under proper explanation by the court to the jury as to the purpose of the evidence, to prove facts set up in his answer; and that the court did not err in overruling plaintiff’s general and first special exceptions to the answer. From the conclusions we have reached as to the law of the case, it is not necessary to determine the question presented by the plaintiff’s second special exception. The appellant’s exception to the charge of the court must be sustained. The court, in substance, tells the jury in one part of its charge, that if the facts and circumstances which had come to the knowledge of the defendant Durham were such as would have given a reasonably prudent man and officer just grounds for suspecting and believing that plaintiff was guilty of the crime of rob bery, and that he would probably make his escape if not immediately apprehended, the defendant was authorized to arrest the plaintiff without a warrant, and if he did so in good faith, the jury should find for the defendant. This is not the law of this State. The citizens of this country hold their liberty and the freedom of their persons from unlawful seizure by no such precarious tenure. The exemption of the citizen from illegal arrest can not be destroyed upon the suspicion of any peace officer, whatever may be his rank, or however laudable may be his motive. Personal liberty is an absolute right inherent in every man; and the primary and chief object of the law is to protect and preserve that right, and he who invades it can only do so with impunity by express authority from the law. Article 229 of the Code of Criminal Procedure provides as follows: “Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the person accused.” Under this article the defendant sought to justify his arrest of the plaintiff; and the jury were told by the charge of the court, that if the evidence showed a felony had been committed, and it was represented to defendant Durham by a credible person that plaintiff was guilty of the offense, and was about to escape, so that there was no time to procure a warrant, the defendant was authorized to arrest the plaintiff without warrant. This charge should not have been given. There was not evidence before the court to justify him in submitting such an issue to the jury. The defendant was informed by no one, credible or incredible, that the plaintiff was about to escape. The robbery was committed nearly fifty days before the arrest, and the day before the arrest, plaintiff was pointed out to defendant by Henry as one of the robbers; and he, mistaking the name of the plaintiff, sought and procured a warrant for his arrest, under the name of another, and when he discovers his mistake, instead of procuring a warrant for the plaintiff properly describing him by his Christian name, he attempted to cure the defect in the warrant which had been delivered to him by Justice Watts. Under such circumstances, the defendant can not be heard to say he had not time to procure a warrant. Article 229 has no application to the facts of this case, and the warrant being void as to plaintiff, plaintiff is unquestionably entitled to recover of the defendant his damages; and the measure of the damages, is the value of the time lost, injury to his business, and the suffering, bodily and mental, which the arrest may have occasioned to plaintiff.

The cross-assignments by the sureties of the defendant Durham raise the question as to the power and authority of defendant Durham to assume and exercise the functions of a peace officer beyond the corporate limits of the town of Palestine. The petition alleges that the arrest was made some ten or twelve miles from Palestine, and was made by defendant in his official capacity; and it is strenuously insisted by counsel for appellee, that several articles of. the Civil Statutes and of the Code of Criminal Procedure authorize the marshal of a town to exercise the functions of his office beyond the territorial limits of his town; and articles 363 and 418 of the Revised Statutes are specially relied on as clothing such officer with extra-territorial powers; but after careful consideration of the articles cited, we are constrained to dissent from the learned counsel, and to hold that - a marshal can not exercise the functions of his office beyond the corporate limits of his town, except when specifically and expressly directed so to do by the statute. He may go beyond the town to execute the judgments and orders of the municipal courts, and in the execution of criminal process issued by the mayor or other authorized officer of the town for the arrest of offenders against the law, when the offense is committed within the town. These are the only instances that we know of in which this officer can exercise the powers of his office outside the limits of his town. The law provides for the election of a marshal of every incorporated town and every city in the State, and defines his powers; and these powers, within the town, are similar to the powers conferred upon the sheriff of the county; and both of these officers are declared by the law to be peace officers. But the marshal is no more authorized to exercise the powers of a peace officer beyond his town than is the sheriff of one county authorized to exercise such powers in another county.

It follows from these views of the law, that the sureties upon the official bond of the defendant Durham are not liable to the plaintiff for the injury sustained by him through the illegal and unauthorized act of defendant Durham, committed ten miles beyond the limits of the city of Palestine; and the majority of this court holds that no recovery can be had by plaintiff against the sureties upon the official bond of the defendant Durham; but in this conclusion, the writer does not concur. In his opinion, when the appellant was taken from the train, after it reached Palestine, by the marshal, and compelled to go through the city against his will to the county jail, the marshal, by such act, was guilty of false imprisonment, and his sureties may be held liable in damages to the plaintiff for the injuries resulting to him from this abuse by the marshal of the powers of his office. The court is further of the opinion that the plaintiff’s petition is defective in not properly averring a breach of the marshal’s bond; and the special exception to it on this ground should have been sustained, as well as the other exception made by the sureties, which we have already considered. Upon another trial the plaintiff will have the privilege of the testimony of the sheriff, and it is not necessary to consider the assignment touching the refusal of the court to grant a new trial because of the absence of this officer from the county at the trial, and the conse quent denial to plaintiff of the benefit of his testimony. • We will not notice other assignments.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered February 21, 1895.