Alexander v. Lindsey
55 S.E.2d 470
N.C.
1949
Check Treatment
*667 DeNNY, J.

In order for us to determine the correctness of the ruling below granting the motion for judgment as of nonsuit, on the cause of action for false arrest and false imprisonment, it is necessary to consider certain preliminary questions. (1) Was the purported warrant, copy of which appears in the record, sufficient to authorize a constable or other lawful officer in Buncombe County to arrest the plaintiff? (2) Conceding such warrant to be valid, was the arrest made by defendant Carl W. Smith, a policeman of the town of Black Mountain, by direction of Sheriff Brown, illegal, when the sheriff retained the possession of the warrant in Asheville ?

Ordinarily an officer is protected in serving a warrant, for the arrest of an accused named therein even though the warrant is defective. S. v. Curtis, 2 N.C. 471; Welch v. Scott, 27 N.C. 72; S. v. Furguson, 76 N.C. 197; S. v. James, 80 N.C. 370; S. v. Jones, 88 N.C. 671; S. v. Dula, 100 N.C. 423, 6 S.E. 89; S. v. Gupton, 166 N.C. 257, 80 S.E. 989; Clark’s Criminal Procedure, Section 9, p. 41. Ruffin, J., said in Welch v. Scott, supra: “When the warrant purports to be for a matter within the jurisdiction of the justice (magistrate) the ministerial officer is obliged to execute it, and of course must he justified by it. He cannot inquire upon what evidence the judicial officer proceeded, or whether he committed an error or irregularity in his decision . . ., the constable has nothing to look to but the warrant as his guide, it follows, that he is justified by the warrant, though not purporting to have been, nor in fact issued on a sworn charge.”

In the ease of S. v. Gupton, supra, the defendant, an officer, was on trial for murder of Charles Snyder, having killed Snyder while attempting to arrest him. The State contended the warrant under which the officer was purporting to act was void, but this Court held otherwise. It was pointed out that it is contemplated in the law, that magistrates, not learned in the law, may sometimes issue papers defective in form, and even in substance, but the method of correction is provided by statute. Rev. 1467, now G.S. 7-149, Rule 12. S. v. Pool, 106 N.C. 698, 10 S.E. 1033; S. v. Smith, 103 N.C. 410, 9 S.E. 200; S. v. Smith, 98 N.C. 747; S. v. Vaughan, 91 N.C. 532. The complaint or accusation in the warrant was held to be but a defective statement, being too general, but the nature of the crime charged sufficiently appeared for the purpose of arrest and to justify the officer in making it.

On the other hand, it has been held that an officer cannot justify an arrest, by force of a warrant issued by a justice of the peace, when it appears on the face of the warrant to be for an offense of which he has no jurisdiction. S. v. McDonald; 14 N.C. 469. And an action for false arrest will lie for the arrest of a party on a charge which does not con *668 stitute a criminal offense. Rhodes v. Collins, 198 N.C. 23, 150 S.E. 492; Wharton’s Criminal Procedure, Vol. 1, See. 31, p. 64.

The warrant under consideration is defective, but not void. It was sufficient to show that the complainant intended to charge a trespass which is a misdemeanor, an offense within the jurisdiction of the magistrate who issued the precept; and when it was executed the detention thereafter was legal, and the defendants cannot be held for false imprisonment after such service or execution.

The second question is more difficult. The overwhelming weight of authority, however, seems to be to the effect that in making an arrest without a warrant for a misdemeanor not committed in the presence of the officer, unless expressly authorized to do so by statute, the officer making the arrest or someone assisting him, must have the warrant in his possession.

In 6 C.J.S. 576, et seq., we find the general rule stated as follows: “The warrant must at the time of the arrest be in the possession of and with the person purporting to act thereunder or of one with whom he is acting in conjunction. . . . Accordingly, when the warrant is at the •officer’s home some distance from the scene of the arrest (citing S. v. Beal, 170 N.C. 764, 87 S.E. 416), or in the hands of another officer who is not at the scene of the arrest, or in the central office of a city detective bureau, the arrest is unlawful.” Likewise, in 4 Am. Jur., 19, et seq., it is said : “Under the common law a conservator of the peace has authority to make an arrest without a warrant for a misdemeanor involving a breach of the peace committed in his presence, but not for one not committed in his presence. At common law the right to arrest for a misdemeanor committed in the presence of the officer is confined to those offenses which amount to a breach of the peace, but the distinction is of slight importance today. Statutes in many, if not all, states have enlarged the right of arrest without a warrant, so that arrests may be made by police officers, town marshals, etc., for any offense committed in their presence, including breaches of ordinances and offenses not amounting to a breach of the peace. In any case, if the offense, though involving a breach of the peace, is not committed in the officer's presence, he cannot arrest without a warrant.” (Italics ours.)

There is a distinct difference in the right to arrest for the commission of a felony without a warrant, and the right to arrest for the commission of a misdemeanor. In this jurisdiction any person “in whose presence a felony has been committed may arrest the person whom he knows or has reasonable grounds to believe to be guilty of such offense,” without a warrant, and it is the “duty of any sheriff, coroner, constable or officer of the police, upon information, to assist in such arrest.” G.S. 15-40. Anri Gr.S. 15-41 reads as follows: “Every sheriff, coroner, constable, offi *669 cer of police, or other officer, entrusted with the care and preservation of the public peace, who shall know or have reasonable ground to believe that any felony has been committed, or that any dangerous wound has been given, and shall have reasonable ground to believe that any particular person is guilty, and shall apprehend that such person may escape if not immediately arrested, shall arrest him without warrant, and may summon all bystanders to aid in such arrest.” It is further provided in G.S. 15-42 : “When a felony is committed in any county in this State, and upon the commission of the felony, the person or persons charged therewith flees or flee the county, the sheriff of the county in which the crime was committed, and/or his bonded deupty or deputies, either with or without process, is- hereby given authority to pursue the person or persons so charged, whether in sight or not, and apprehend and arrest him or them anywhere in the State.”

But arrests for misdemeanors without a warrant are limited strictly to certain misdemeanors committed in the presence of the party making the arrest. And unless expressly authorized by law, such arrests can only be made for a breach of the peace as defined in G.S. 15-39, which provides: “Every person present at any riot, rout, affray, or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders.”

Special laws have been enacted from time to time extending the power to arrest without a warrant. The police officers in many of our towns and cities are authorized to arrest a person violating any town ordinance in his presence, even when it does not amount to a breach of the peace. See 15 N.C. Law Rev. 101, where many of the local statutes are cited. A bank examiner is authorized to make arrests without a warrant under certain circumstances. G.S. 53-121. State forest wardens may arrest certain violators without a warrant. G.S. 113-49. Arrests may be made without a warrant when an officer has evidence that liquor is being illegally transported. G.S. 18-6. S. v. Campbell, 182 N.C. 911, 110 S.E. 86; S. v. Simmons, 183 N.C. 684, 110 S.E. 591; S. v. Godette, 188 N.C. 497, 125 S.E. 24; S. v. Jenkins, 195 N.C. 747, 143 S.E. 538. And we have a number of other statutes authorizing arrests without a warrant, under certain circumstances, but we know of no modification of the common law rule which would authorize the arrest of this plaintiff on a charge of simple trespass, without a warrant. S. v. Rogers, 166 N.C. 388, 81 S.E. 999; S. v. Campbell, 107 N.C. 948, 12 S.E. 441. See also 6 C.J.S. 593, and the numerous authorities cited therein. Furthermore, it was held in the case of Wilson v. Mooresville, 222 N.C. 283, 22 S.E. 2d 907, that where a misdemeanor is committed in the presence of a police officer, such officer is not authorized to pursue and arrest the offender beyond the territorial limits in which he is authorized by law to make arrests.

*670 Naturally the question arises as to whether or not these defendants are aided by the existence of a warrant in the hands of one of the defendants in Asheville, while the arrest took place in Black Mountain. The defendant Carl W. Smith, acted at the request of one of his codefendants who was the Sheriff of Buncombe County, and the Sheriff could not legally do by another what he could not do himself. He was not authorized to make the arrest without a warrant, and therefore could not authorize another to do so. And the existence of the warrant in the possession of the Sheriff in Asheville would not authorize a policeman in the town of Black Mountain, about fourteen miles away, to arrest the plaintiff for a misdemeanor without a warrant. McCullough v. Greenfield, 133 Mich. 463, 95 N.W. 532, 62 A.L.R. 906; Kratzer v. Matthews, 233 Mich. 452, 206 N.W. 982; Giddens v. State, 154 Ga. 54, 113 S.E. 386; Hunter v. Laurent, 158 La. 874, 104 So. 747. This Court held in Meeds v. Carver, 30 N.C. 298, that where a defendant was in jail under one process and the sheriff requested that he be detained until he could seethe jailer who was his deputy, that a detention after he was entitled to his release under the original process, was not unlawful, since the sheriff had another process, authorizing his detention, although the jailer nor the-prisoner knew of the existence of the additional process at the time of his detention.

Likewise, it has been held that when a known officer has two warrants in his hands, the one legal and the other illegal, and he declares that the arrest is made by virtue of the illegal warrant, he cannot be held for false arrest or imprisonment, for the lawfulness of the arrest depends not on what he declared, hut on the sufficiency of the authority which he actually had. S. v. Kirby, 24 N.C. 201.

But in the case of S. v. Beal, 170 N.C. 764, 87 S.E. 416, where the-warrant was at the home of the deputy sheriff about one-half mile from where the arrest was made, and the party arrested made no point of the fact that the- officer did not have the warrant, a third party, a brother of the arrested man, demanded the warrant and assaulted the officer r Held, he had no right to demand the warrant. However, Walker, J., in speaking for the Court, said: “We must not be understood as justifying this or any other officer in arresting without a warrant, except where allowed by law. An officer should obey the law as well as other persons, and, when he does so, the law will protect him while in the execution of its process.”

We think the arrest of the plaintiff was unlawful. Even so, he did not demand the production of the warrant, but merely inquired as to where it was and upon being advised that it was in the possession of the Sheriff in Asheville, he made no request for his release, other than to be given the opportunity to post bond. The good faith of these appellees cannot be *671 considered on tbe question of the lawfulness or unlawfulness of the arrest, but may be considered on the question of damages. Rhodes v. Collins, supra,; Caudle v. Benbow, 228 N.C. 282, 45 S.E. 2d 861. Therefore, plaintiff would be entitled to recover only such actual or compensatory damages as he sustained from the time of his arrest until he was placed in the custody of the Sheriff of Buncombe County, who had possession of the warrant, which did authorize his arrest.

We think his Honor committed error in allowing the motion for judgment as of nonsuit as to the defendants Brown and Smith, but not as to the defendant Lindsey, on the cause of action for false arrest and false imprisonment.

We now consider the cause of action for malicious prosecution. To establish such cause of action the plaintiff must prove: (1) That the defendants instituted or procured the institution of the criminal prosecution against him; (2) that the prosecution was without probable cause; (3) that it was with malice; and (4) that it was terminated in favor of the plaintiff herein. Mooney v. Mull, 216 N.C. 410, 5 S.E. 2d 122; Perry v. Hurdle, 229 N.C. 216, 49 S.E. 2d 400. But where the criminal action is withdrawn or terminated by compromise brought about by the defendant, an action for malicious prosecution based thereon, will not lie. Welch v. Cheek, 125 N.C. 353, 34 S.E. 531.

The plaintiff excepts and assigns as error the ruling of the trial judge in striking out the evidence as to how the criminal proceedings terminated, as against the defendants Brown and Smith. Perry v. Hurdle, supra. The exception was well taken and will be sustained.

We do not pass upon the credibility or weight the jury should give to the evidence in any case; but on a motion for judgment as of nonsuit, it is well settled that we must consider such evidence in the light most favorable to the plaintiff. Garrett v. Garrett, 229 N.C. 290, 49 S.E. 2d 643; Pascal v. Transit Co., 229 N.C. 435, 50 S.E. 2d 538; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307. And when the plaintiff’s evidence is so considered, we think it is sufficient to carry the ease to the jury as against the defendants Lawrence E. Brown and G. H. Lindsey, but not sufficient to do so as against the defendant Carl W. Smith. There is no evidence in this record that the defendant Smith had anything to do with this case except to arrest the plaintiff at the request of his codefendant, Lawrence E. Brown, and to turn him over to the Sheriff’s deputies.

Therefore, the ruling of the trial judge in granting the motions for judgment as of nonsuit as to all the defendants on the first cause of action, that is for false arrest and false imprisonment, is reversed as to the defendants Lawrence E. Brown and Carl W. Smith, and affirmed as to G. H. Lindsey. On the second cause of action for malicious prosecution, the ruling of his Honor in granting a nonsuit as to the defendants Brown *672 and Smith, is reversed as to the defendant Brown and affirmed as to the defendant Smith.

Affirmed in part.

Reversed in part.