Rutledge v. Rowland

49 So. 461, 161 Ala. 114, 1909 Ala. LEXIS 124

• Court: Supreme Court of Alabama
• Decided: April 15, 1909
• Status: Published

Opinion

SIMPSON, J.

This action was brought by the appellee against the appellants, to recover damages for an assault and battery.

There was no error in overruling the objection to the question to the witness Dr. Douthitt: “What was there in the calaboose?” No grounds for said objection are set out, and the witness had already testified without objection that he saw nothing in the calaboose but a bucket. Moreover, the witness had testified to an indentation on the head, which he attributed to the blow which he had seen inflicted on the plaintiff, and it was proper to show whether there was anything in the calaboose which might have made the indentation. The cases cited with regard to special damages have no application to this testimony.

There was no error in sustaining plaintiff’s objection to the question to Dr. Douthitt, viz.: “Did you see him in town when he had not only had a drink, but was drinking?” The witness had. stated that the injury to plaintiff’s eyes was caused by the fracture of his skull. He had not been asked whether drinking whiskey could have caused the same trouble, nor was there any evidence that it would. Besides, the question was general —not fixing any time, whether before or offer the injury, when he had seen him drinking.

The third assignment of error is that the court overruled defendants’ objection “to the following question, * * *' and to his answer thereto,” etc. The record does not show that any objection was made to the question, but only to the answer after it had been made. There was no error in overruling the objection.

There was no error in overruling defendants’ objection to the question to Dr. Crook: “What is the effect of a bone or foreign substance constantly pressing on the brain?” No statement was made as to the ground of the objection. Moreover, this was not an attempt to prove special damages, but was merely an inquiry as to the usual and ordinary results of such an injury. There was no error in overruling the defendants’ motion to exclude the answer to said question. While it is true that only such, damages as are the usual and ordinary result of such an injury are recoverable under this complaint, and not such as might possibly follow (4 Sutherland on Damages (3d Ed.) § 1251, pp. 3641, 3642; 13 Cyc. 31; 13 Ency. Sv. 402), yet the objection was general, and the court was not required to cast about for the specific objection, as it is not so clearly illegal but that it may have been explained if called to the attention of the witness. — Wallis v. Rhea & Sons, 10 Ala. 451, 453; Donnell v. Jones, 13 Ala. 490, 507, 48 Am. Dec. 262, 270, 271; Cunningham’s Executors v. Cochran & Estill, 18 Ala. 479, 52 Am. Dec. 230; Goldsmith, Forcheimer & Co. v. Picard, 27 Ala. 142, 152; Phillips v. Kelly, 29 Ala. 628, 632; Steele v. Tutwiler, 57 Ala. 113, 115; Dryer v. Lewis, 57 Ala. 551, 554; Bates v. Morris, 101 Ala. 282, 286, 13 South. 138; Sanders v. Knox, et al., 57 Ala. 80, 84; Williams v. Gallyon, et al., 107 Ala. 439, 443, 18 South. 162; Braham v. State, 143 Ala. 29, 42, 38 South. 919.

The objection to the question to the witness Rowland (plaintiff) : “How long were you confined,” etc., and to the answer thereto, was not made until after it had been answered. This was too late. A party cannot speculate on what the answer to a question will be, and then object to the question and move to exclude the answer, if the answer is responsive to the question. — Downey v. State, 115 Ala. 108, 111, 22 South. 479; Miller et al. v. State, 130 Ala. 1, 18, 30 South. 379; Hudson et al. v. State, 137 Ala. 60, 64, 34 South. 854; Jarvis v. State, 138 Ala. 20, 37, 34 South. 1025; L. & L. & G. Ins. Co. v. Tillis, 110 Ala. 202, 213, 17 South. 672; A. G. S. R. R. Co. v. Bailey, 112 Ala. 167, 176, 177, 20 South. 313. Moreover, the testimony as to the length of time he was held up was not introducing a special element of damages, but was merely proper for the purpose of showing the severity of the assault upon him.

There was no error in sustaining the objections to the questions to the plaintiff, as a witness, as to whether two clays before the assault he had said that he was not going to be arrested by either of the marshals, or as to his having made fun of the White Gap marshals, or as to his having had a conversation with Dr. Arbery before that about his marshals. These things could furnish no excuse for making an assault upon plaintiff, nor does the matter as to how he felt as to said marshals shed any light on the assault made on him that would be favorable to defendants. There was no error in sustaining the objection to the question to the plaintiff, as a witness, asking whether he had not knocked down Town Marshal Pink Carpenter with the handcuffs. Carpenter was not a party to this suit, and the particulars of any difficulty with him were ontidely irrelevant to this suit. The case of Wiley v. State, 99 Ala. 146, 13 South. 424, has no resemblance to lilis case. In that case the doctrine of self-defense was invoked, and there was evidence tending to show that the person who was shot made a motion toward the place where it was known the pistol was kept. In the present case there is no pretense that the plaintiff was attempting to use the handcuffs. On the contrary, they had been taken away from him before the assault was made on him. It was also entirely immaterial whether the plaintiff had on that day taken the handcuffs from his pants pocket and placed them in his coat pocket. In addition to what has been said, at the time these questions were asked, there was no evidence tending to show that the plaintiff had made any motion towards bringing about the difficulty, or even towards resisting the assault, and no statement was made by the attorney to show the relevancy of the evidence.

There was no error in sustaining the objection tO' the question to plaintiff as a witness as to whether he had a difficulty with Dr. Arbery on the 30th of July (nearh a. month after the time when plaintiff claims to have been assaulted). His physical condition at the time should be proved in some other way than by introducing evidence of the particulars of a difficulty had nearly a month after the time when plaintiff claims to have been assaulted.

There was no error in sustaining the objection to defendants’ question to the plaintiff as a witness as to his statement to Bill S'argent on the morning of the 6th that they had had some fun on the 4th of July, had had more on the 5th, and would have the real thing to-day. There was no statement to the court showing the relevancy of such matter; nor was there any evidence at this stage of the proceedings tending to show that the plaintiff had been the aggressor in bringing on the difficulty.

There was no error in sustaining the objection to the question to the defendant Arbery, as a witness: “How did you happen to be in there” — referring to Maxwell’s saloon. This was several weeks after the difficulty, and it was totally irrelevant to any issue in this case why Dr. Arbery went into the saloon. It was equally irrelevant whether the plaintiff was drinking at that time.

The conversation between the witness Francis and plaintiff was equally irrelevant. No matter for what purpose the handcuffs had been canned by the plaintiff, it offered no excuse for making an assault upon him after they had been taken from him. It was equally irrelevant to prove that the plaintiff said (some time after the difficulty) that, “if he had a chance to get into a difficulty with Dr. Arbery, he intended to bite his ear off.” In fact, it is immaterial what the feelings of the plaintiff toward Dr. Arbery were, even at the time of the assault. The plaintiff is not charged with making any assault on Dr. Arbery.

There was no error in sustaining the objection to the question to the witness H. T. Persons: “Assuming these things are true, would you call a man that would be guilty of the numerous incidents I have mentioned a peaceable, law-abiding man?” While it is permissible on cross-examination of a character witness for the purpose of shedding light on the credibility of the statements of the witness (White v. State, 111 Ala. 92, 21 South. 330), yet a party’s character cannot be established by asking the witness in regard to various offenses, of most of which he has never heard, and then making him state whether, if those things were true, he would call the person a peaceable, etc., man. A man’s character must be testified to from a general knowledge of his reputation in the neighborhood in which he lives. The witness could not have been called on to prove such special offenses, even if he had known of them, and it would be an anomaly to say that he could be forced to remodel his opinion of the man’s general character by reference to particular instances which were imaginary, so far as he knew.

The court erred in sustaining the objection to the question to the witness Whitlock: “You drink together and run together?” Any fact tending to' show the relations existing between the witness and the party for whom he testifies may be brought out on cross-examination, in order that the jury may judge whether or not there is any reason to suppose the witness would be biased. — A. G. S. R. R. Co. v. Johnston, 128 Ala. 284, 295, 29 South. 771.

The defendants except to that part of the oral charge of the court as follows, to wit: “That right to arrest without a warrant never carries with it the right to incarcerate without a hearing.” While the use of the word “never” would be improper, under certain circumstances, as it might be impossible to take the prisoner immediately before a magistrate, and he might be unable to give bail, yet, talien in connection with the rest of the charge, and as applied to the facts of this case, the arrest being made by the order of the mayor, and there being no circumstances to prevent an immediate investigation of the case, or the allowance of bail, the charge was correct. Under our system of government, which guards so scrupulously the liberty of the citizen, it is the duty of either an officer or a private citizen when arresting a person for a misdemeanor without warrant to take him immediately before a magistrate, and have a judicial ascertainment of his probable guilt, and an opportunity given him to make bail. — 3 Cyc. 895; Hayes v. Mitchell, 69 Ala. 452, 455; Pratt v. Hill, 16 Barb. (N. Y.) 303; Tracy Williams, 4 Conn. 107, 10 Am. Dec. 102; Hayes v. Mitchell, 80 Ala. 183, 184, 185 (second given charge); Edwards v. Ferris, 7 C. & P. 542. Section 12 of the charter of Jacksonville (Acts 1890191, p. 511) was not intended to deprive the citizen of this important right (if that could be done); but was providing. for the case where the officer, in the absence of the mayor, makes the arrest, and has no application to a case where the mayor himself orders the arrest, and orders the prisoner to be taken to the calaboose at once, without any judicial investigation or opportunity to give bail.

It was error to charge (in the court’s oral charge) : “If he was arrested without a warrant, it was the duty of Dr. Arbery to have had one of the officers making the arrest tell him for what offense he was being arrested.” Section 5212 of the Code of 1896 dispenses with the necessity of informing him when “he is arrested in the actual commission of a public offense,” and in this case there is no conflict in the evidence that the plaintiff was in the actual commission of the offense of carrying a pistol concealed about his person. It is no answer to this to say that he might also have been arrested for some other offense. The statute presumes, when he is arrested in the actual commission of an offense, that he is arrested for that offense.

Several exceptions raise practically the same questions as stated in the last two, and it is unnecessary to repeat them. There was no error in that part of the oral charge as follows, to wit: “I charge you, further, that if everything occurred as Dr. Arbery says it did, and that this man told him, in talking to him, that he wanted to see him, that he wanted to see him out of the corporation, and Dr. Arbery consented to go, entered willingly into that difficulty, accepted the challenge to go outside of the corporation, I charge you then that Dr. Arbery would not be free from fault, and could not invoke the protection of the doctrine of self-defense.” It cannot be said that these were two separate transactions, for the testimony shows one continuous altercation between them, and the order to have the plaintiff searched, and the consequent order to have him arrested resulted from the agreement about to be put into execution to go out of the corporation.

There was no error in giving that part of the oral charge set out in the thirtieth assignment of error. It cannot be said that in ordering the arrest Dr. Arbery was acting judicially. The gravamen of the complaint against him is that he did not act judicially, but merely gave the order without any charge being made against the plaintiff, without any judicial investigation, without giving the plaintiff an opportunity to be heard, and without according to him the constitutional right to give bail. There was no evidence tending to show that the plaintiff was not in a condition to attend the trial. Section 5214 of the Code of 1896, which is quoted by counsel, provides that, when a person is arrested by order of the magistrate, the magistrate shall “thereupon proceed as if such offender had been brought before him on a warrant of arrest”; and that is just what the mayor did not do in this case. There is nothing in the charge to indicate that the party might resist so as to imperil the lives of his captors, hut only that he might use such force as was necessary to extricate himself. This right he had if the officers were acting unlawfully. — State v. Johnson, 12 Ala. 840, 46 Am. Dec. 283; Smith v. State, 105 Ala. 136, 139, 17 South. 107. There Avas no error in that part of the oral charge: “The plaintiff was entitled to bail.” This was not charging upon the effect of the evidence, for there was no pretense that the plaintiff was guilty of any offense greater than a misdemeanor, in which case he was certainly entitled to hail.

The thirty-second assignment is covered by what has been said, and it shows no error. That part of the oral charge set out in the thirty-second assignment of error was possibly misleading, but could have been corrected by a countercharge, and the court will not be placed in error for giving it. The other exceptions to parts of the oral charge are covered by what has been said.

Charge A, requested by the defendants, was properly refused, because it was calculated to mislead the jury as to the real issue in the case. The action is not for false imprisonment, but for assault and battery, and the pleas do not set up the defense that the defendants were in the exercise of duty in arresting for an offense committed in their presence, hut they justify under the order of the mayor, which was not simply to arrest, but to take the plaintiff to the calaboose.

Charge B, requested by the defendant, is governed by the same principles as charge A.

Charges C and D were also properly refused. There is nothing in the evidence to show that the plaintiff was violent, turbulent, and beside himself with rage when the officers took hold of him. On the contrary, Dr. Arbery himself testifies that the plaintiff was walking away from him, and that he (Dr. Arbery) commenced the offensive remarks and got into an altercation with the plaintiff.; that, when he ordered the plaintiff to be searched, he submitted quietly thereto; and that he (the doctor) then ordered the marshals to “put him in the calaboose.”

The separate assignments made by the defendants raise the same questions which have been treated in reference to the joint assignment.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, O. J., and Anderson and Mayfield, JJ., concur.