White v. State

37 L.R.A. 642, 99 Ga. 16

• Court: Supreme Court of Georgia
• Decided: March 23, 1896
• Status: Published

Opinion

Atkinson, Justice.

The defendant White was fried in the city court of Atlanta upon an accusation charging him with the offense of false imprisonment. It appears from the evidence that he was a police officer in the city of Atlanta; that upon the day on which, it was alleged that the offense was committed, he was on -duty and assigned by the chief of police to assist in the duty of clearing the streets of vehicles which might obstruct the progress of a certain military parade which was being that day held in honor of the presence in the city -of certain civic and military organizations. The prosecutor was seated in his buggy upon one of the streets being traversed by this military, parade, 'and refusing to make way, was, without a warrant having been previously issued, placed under arrest by the police officer; and for making this arrest the latter was being tried. The evidence showed, that while the parade in question was complimentary to the visiting organizations above referred to, such parades were “counted” as amongst the number of parades pre•seribed by law, other similar instances being mentioned.

1. According to the view we take of the evidence in this case, it will not be necessary to consider in detail the various questions which were made upon the trial of the case. There was no dispute that the prosecutor had been arrested. There was no evidence that a warrant had issued for his arrest, and the police officer sought to justify upon the .ground that the prosecutor had committed an offense against the laws of this State in his presence, and hence he was authorized to make the arrest. Ordinarily this is a good reply to a prosecution for false imprisonment, but it necessarily involves the inquiry as to whether an offense has in fact been committed. Section 1103(x) of the code provides, that “Every company of volunteers shall parade at least four times in every year, and every battalion at least once in every year, the times to be appointed by the rules adopted by such company or battalion, or in the absence of such rules, by its commanding officer. The Governor may order such other parades, not exceeding one in any year, of any company or battalion, as he may think proper, for inspection or review, by the adjutant-general or such officer -of volunteers as he may designate for that duty.” Section li03(y) of the code provides, that “The officer commanding any detachment, company or battalion at any parade, or during the performance of any other duty ordered by-proper authority, shall have authority to arrest and place-under confinement, during the continuance of such duty,, any person who shall in any way wilfully disturb or interrupt the peaceable and orderly proceedings of such detachment, company or battalion, and such person shall, moreover, be liable to prosecution in the superior court, of the county where the offense is committed, and on conviction, shall be fined in a sum not exceeding fifty dollars or be imprisoned not more than twenty days, or both, at the-discretion of the court.”

In times of peace the public highways in this country belong to the public, and are to be used by the public in a. proper way in the prosecution of peaceful pursuits. Without express legislative authority no man or body of men can appropriate to their own exclusive use any of the public • highways. It is competent, however, for the legislature to withdraw temporarily from the general public use any public highway, and devote it for the time being to a public use of a special character; and in the exercise of this, power the legislature adopted the provisions of the code above referred to, stating the condition's upon which public ways might be temporarily appropriated to military operations. They provide that parades shall be held four-times in each year, and that while such parades are in progress, any person who wilfully disturbs or interrupts, the military procession shall be liable to indictment. The. times at which such parades are to be held are not fixed by law, but it is expressly provided that they may be held at times which are to be'appointed by the rules adopted by the military company or battalion thus parading, or, in the: absence of such rules, by its commanding officer. The-rule adopted by the company fixing the time at which such, parades are to be held, and in the absence of a rule to that. effect, an order by tbe commanding officer fixing sucb time, becomes the law unto tbe general public, and makes a parade beld under sucb circumstances a lawful parade, tbe obstruction of wbicb is prohibited by law. In tbe present case tbe evidence was silent as to whether tbe company bad fixed tbe time and place of its annual parades by rule, and tbe authority of tbe commanding officer being dependent upon tbe non-existence of sucb rule, it does not appear that tbe parade in question was one of those authorized to be beld under the provisions of tbe code to wbicb reference is hereinabove made. It follows then that if tbe parade being held was not one of those authorized by law, no offense against tbe statute in question was committed by any person who may have interrupted it.

2. The authority conferred upon tbe commanding officer of any detachment, company or battalion at parade to arrest and place under confinement a person who wilfully disturbs or interrupts tbe peaceable progress of sucb a parade, is merely cumulative. Tbe provisions of that section of tbe code do not confine tbe power to make arrests for these offenses to military authorities alone, but it being an offense against the laws of tbe State, tbe power of tbe police officers of tbe State, or tbe city, where tbe offense is committed within tbe corporate limits of a city, to make arrest is conferred by general law in all cases where tbe offense is committed in the immediate presence of the officer.

3. In the present ease, tbe arrest not having been made in pursuance of a warrant, tbe burden of proof was on tbe defendant, in order to justify tbe arrest, to show tbe commission of an offense in bis presence by tbe pei’son arrested, and proof of this fact involved the further proof by him that the parade in question was being bad in accordance with the rules adopted by tbe military organization then on parade, or that, there being no sucb rules, sucb parade had been ordered by tbe commanding officei’. It was not insisted in the present case that this parade was held by virtue of any order made by the Governor of this State, under authority of the last portion of section 1103(x) of the code.

4. The notion that because the highways in this State are public, they are therefore liable to exclusive appropriation by any body of men, whether a civic or military organization, has no countenance in the law. As has been said before, it is perfectly competent for the State to provide for their temporary appropriation for these purposes, and when this is done by appropriate legislation, persons in whose favor those exclusive rights are granted must conform to the statutory provisions granting the right. To bold that the streets of a city were subject at all times to appropriation for these purposes, and to hold that these provisions of law authorized the military or civic organizations of this State to parade at any time they might see proper, without reference to the law regulating such parades, might seriously embarrass private citizens in the prosecution of their ordinary peaceful pursuits. An occasional military display is not unpleasing to the public eye, but where they tend to interfere with the more serious-concerns of private persons, it is well enough that they should be limited to such times and places as the legislature may see proper to authorize. In the view we have taken of this ■case, it is unnecessary to consider in detail the minor errors .alleged to have been committed on the trial.

Judgment affirmed.