149 So. 676 | Ala. | 1933
The complaint as originally filed was against appellants and one Strickland for an alleged unlawful arrest and restraint of the plaintiff, and consisted of three counts, the first for false imprisonment, substantially in the form prescribed by section 9531 of the Code of 1923, form 19. The second avers that "the defendant Bank, by and through its agent and cashier M. A. Helms, and S. O. Smith, as president, on to wit: August 4th, 1929, while acting within the line and scope ofhis authority, and the said M. A. Helms, S. O. Smith and E. J. Strickland as individuals, caused plaintiff to be unlawfully restrained of his liberty at Bonifay, in the State of Florida, on a charge of robbery, by falsely accusing plaintiff, andfalsely identifying him as one of the robbers who robbed thesaid Bank of Cottonwood, at Cottonwood, Alabama, on the 3rd day of August, 1929, for the purpose of causing him to be restrained of his liberty, and thereby caused or instigated plaintiff's arrest and imprisonment," etc. (Italics supplied.)
The third count was for malicious prosecution in Code form. Code 1923, § 9531, form 20.
Before the trial was concluded, the complaint was amended by withdrawing count 3, striking Strickland as a party defendant, and adding counts (a) and (b). Count (a), like count 1, is in the form prescribed for false imprisonment. Count (b) avers that "the defendant Bank, by and through its agent and cashier, M. A. Helms, and S. O. Smith, as president, on to-wit: August 4th, 1929, while acting within the line and scope of their authority, caused plaintiff to be unlawfully restrained of his liberty from August 4th, 1929, to August 9th, 1929, by falselyaccusing plaintiff, and falsely identifying him as one of the robbers, who robbed the said Bank of Cottonwood at Cottonwood, Alabama, on the 3rd day of August, 1929." (Italics supplied.)
The defendants demurred to counts 2 and (b), and the demurrers were overruled.
The defendants interposed the plea of the general issue, and several special pleas. Demurrers by plaintiff were sustained to the special pleas, and the trial proceeded to judgment under counts 1, 2, (a), and (b) and the plea of the general issue, resulting in a verdict and judgment for the plaintiff against all the defendants, and from that judgment the defendants have appealed.
The case was submitted on the assignments of error, without an order of the court granting leave of severance in the assignments of error, and, under the well-established rule, we are restricted to a consideration of the alleged errors that affect the rights of all the appellants. Stacey et al. v. Taliaferro et al.,
The appellants' argument in support of the assignment of error predicated on the overruling of the demurrers to counts 2 and (b) is very meager, and under the well-settled rule might be treated as a waiver. However, the contention seems to be that the averments of these counts, when construed most strongly against the pleader, show no more than that the defendants Helms and Smith, acting in good faith and in aid of the officers of the law, through honest mistake, identified the plaintiff as one of the persons who participated in the robbery of the bank. We are not of opinion that these counts are subject to this construction. While we do not hold said counts were free from demurrable defects, they are not subject to the objections pointed out by the stated grounds of demurrer, and the demurrer was overruled without error. Code 1923, § 9479; Sanders v. Davis,
We take judicial notice of the historic fact that the territory constituting the state of Florida was acquired by purchase from Spain in 1819, and the common law will not be presumed to prevail in that state, in the absence of proof of its adoption. Therefore it will be presumed that the law of the forum is the law applicable to the question under consideration. Peet Co. v. Hatcher,
In Cunningham Son v. Baker, Peterson Co.,
"If a person charged with treason, felony, or other crime in another state has fled therefrom, and is found in this state, the statutes provide for his apprehension and detention to await a requisition from the executive of the state in which the crime was committed. Cr. Code, §§ 4747-4760 [Code of 1923, §§ 4165-4178]. Under these statutes, a warrant of arrest must issue from a magistrate having authority to issue such warrants. In the absence of statutes, upon common-law principles, the apprehension and detention of persons charged with crime in other states was effected through judicial officers, upon probable cause being shown by appropriate evidence. Morrell v. Quarles,
This pronouncement is supported by Gray v. Strickland,
The decision of the question, "Whether an officer having authority to make arrests may not without warrant arrest a person in this state whom he has reasonable cause to believe has committed a felony in another state, and to have fled therefrom," was pretermitted in Cunningham Son v. Baker, Peterson Co., supra, and again in Hill et al. v. Wyrosdick,
Whether we apply the rule of the common law or the statute, as clearly and forcibly announced by the court in Cunningham
Son v. Baker, Peterson Co.,
The demurrers of the plaintiff to the several special pleas interposed by defendants, designed to justify the arrest by the Florida sheriff, and negativing the defendants' responsibility therefor, were well sustained.
If the Alabama officers who pursued the robbers had facts before them sufficient to warrant a reasonable man in believing that plaintiff was one of the persons who committed the robbery, this warranted them in applying to a judicial officer in Florida for the issue of such warrant for his arrest.
Facts going to show that the defendants did not cause, incite, or instigate the arrest and imprisonment of plaintiff were admissible under the general issue. Strain v. Irwin,
The evidence offered by the plaintiff tended to show that, when plaintiff and Pennington were informed by Sheriff Driver of Holmes county, Fla., of the robbery, and that he (plaintiff) was suspected as having participated in its commission, plaintiff, at Driver's request, voluntarily accompanied the sheriff to Bonifay, with the assurance from the sheriff that, if he was not identified by the officers of the bank, he would be returned to his home by the sheriff; that, when they got to Bonifay, Helms, the cashier of the bank, positively identified plaintiff and Pennington as two of the guilty parties, and directed Driver, the sheriff, "to carry them back to the jail"; that plaintiff and Pennington were also identified by Mrs. McDaniel, a witness who was transported to Florida by Smith and Helms; that Smith was present at the time, and requested that plaintiff and Pennington be searched, "wanted us searched again, wanted our socks examined, our hats, pants, and some letters read," and the evidence was without dispute that the defendant bank paid the expenses of the trip of Helms, Smith, and Mrs. McDaniel to Florida.
There was also evidence going to show that Solicitor Mullins informed Helms that he *241 would have to carry his witness to Florida to appear before the Governor of Florida to procure the warrant for the extradition of plaintiff and Pennington.
There was also evidence showing that another party was brought before Helms for identification, and he directed the officers to let him go.
The defendants offered evidence tending to show that Helms and Mrs. McDaniel merely went to Florida at the request of the law enforcement officers from Alabama, and identified the plaintiff and Pennington, and that Smith carried them in his automobile for that purpose, and that neither Smith nor Helms requested or directed the officers to make an arrest or hold the parties.
The evidence is without dispute that plaintiff was put in jail in Florida, without a warrant for his arrest, on August 4, 1929, and held in custody until August 9th, when he was removed to Alabama, under extradition proceedings, and placed in jail, where he remained until August 14, 1929; that a robbery was committed; that the culprits were apprehended, tried, and convicted; and that plaintiff had no guilty connection therewith.
The evidence presented a jury question as to whether or not the defendants caused the plaintiff's arrest and imprisonment, and the affirmative charge was well refused, and, under the well-settled rule, we are not able to affirm that the verdict was contrary to the weight of the evidence. Standard Oil Co. v. Davis,
The affidavit of the juror was not admissible to impeach the verdict, and the objection thereto was properly sustained. Gulf States Steel Co. v. Law et al.,
With this evidence out, there was nothing to support the ground of the motion that the verdict was a quotient verdict.
The exceptions to the oral charge of the court are clearly without merit. The oral charge, when considered as a whole, is not subject to the objection of being abstract and misleading, nor is it argumentative, but, if it be conceded that it was argumentative, this is not ground for reversal. Daniel v. Bradford,
The evidence in this case clearly differentiates it from Daniel v. Goodyear Tire Rubber Co.,
We have examined the numerous assignments of error predicated on the giving and refusal of special charges, and on the admission and rejection of evidence, and find nothing that would warrant a reversal or that requires special treatment.
The court very properly limited the damages which plaintiff was entitled to recover to such as occurred prior to the issuance of the warrant by the Governor of Florida on the requisition of the Governor of this state. McPherson, Sheriff, et al. v. Gay,
We are of opinion that the damages awarded by the verdict are excessive; that 50 per cent. of the amount, or $1,325, is adequate, and, unless the appellee files a remittitur reducing the damages to said amount, within fifteen days from the date this opinion is announced, a new trial will be awarded.
Affirmed conditionally.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.