133 Va. 441 | Va. | 1922
delivered the opinion of the court.
This is. a proceeding by motion instituted by John W. Richardson against C. H. Bourne to recover damages for the alleged unlawful and malicious shooting of Richardson by Bourne. There was a verdict and judgment below for $3,000 in favor of the plaintiff, and the defendant assigns error.
The evidence was conflicting upon some material points, but as tending to support the verdict it may be fairly summarized as follows:
Bourne was a police officer in the city of Radford. Richardson was well known in that city, and bore the general reputation of being a “bootlegger.” On two separate occasions he had pleaded guilty to a charge of violating the State prohibition law, and had accordingly been convicted, once in the Circuit Court of Pulaski county and once in the Corporation Court of the city of Radford. At the time of this shooting a warrant for his arrest for another violation of the prohibition law had been issued but not executed. This warrant, which made no reference to the prior convictions and charged merely a misdemeanor, was
The shooting occurred about eight o’clock in the evening. Bourne was on the street violating no law and creating no disturbance. His testimony as to the circumstances under which the shooting occurred is very well summed up in one of his answers as follows: “I was going down the street, met Mr. Bourne, we happened to meet up together. ‘Mr. Richardson,’ he says, T will have to arrest you.’ I says, ‘You are fooling, ain’t you, Pat?’ He says, ‘No, I am not fooling.’ I says, ‘Where’s your warrant?’ He says, T don’t have to have any.’ I says, ‘What’s the charges?’ He says, ‘Don’t have to have any.’ At this time Bourne grabbed me right there, and drew the pistol with the other hand. I says, ‘You got no warrant, I am not going with you,’ and pushed off from him, and got away from him. Then he shot four or five shots at me, and the last shot he shot me; and I was in twenty feet, maybe a little more or a little less, the first shot that he shot at me.”
■.Other witnesses for the plaintiff testified substantially to the same effect, one of . them saying that Bourne took hold of the flap of Richardson’s coat at the time of announcing his intention to make the arrest. The account of the shooting, as given by the
The shot which struck Richardson took effect in his right arm, causing painful and serious, and probably, permanent injury. He sought medical treatment at a local hospital, and the physician there, after failing to locate the bullet, administered antiseptic treatment dressed the wound, and advised him to go immediately to a hospital in Roanoke where he could have an X-ray examination and expert treatment by a surgeon. Richardson did go to Roanoke on a train leaving shortly after the shooting, arriving there between eleven and twelve o’clock at night, but he was met at the station and arrested by Roanoke officers to whom Bourne had telephoned in accordance with advice which he testified was given to him by the Commonwealth’s attorney. No question was asked of the attorney for the Commonwealth upon this point when he ¡was on the stand, and he made no statement with regard thereto. The Roanoke officers would not permit Richardson to give bail and go to the hospital, but placed him in jail where he remained until the next afternoon when the sergeant of the city of Radford Came and took him back to that city. He was then allowed bail, and, after treatment by local physicians for some weeks, went back to Roanoke, where Dr. Trout made an X-ray examination and removed the bullet.
We come now to the assignments of error.’
1. The chief ground relied upon by the defendant to justify him in arresting the plaintiff without a warrant was that the latter had formerly been convicted of violating the prohibition law, and that the defendant,
In support of this position the defendant, during the cross-examination of the plaintiff, introduced in evidence an order of the Corporation Court of the city of Radford, dated November 10, 1919, showing that, upon a plea of guilty, a certain John W. Richardson had been convicted in that court on a charge of violating the prohibition law, and then asked the plaintiff whether he was the same John W. Richardson named in that order of conviction. The plaintiff admitted that he was the same man, and his counsel asked him to explain to the jury why he entered the plea of guilty. To this question counsel for defendant objected, but the court permitted the plaintiff to answer, and the substantial purport of his reply was that he was in fact not guilty and had so pleaded on his first trial when there was a hung jury, but subsequently, merely as a matter of economy, he pleaded guilty, finding that by doing so and paying a fine of $50.00 he could save an attorney’s fee of $150, which his counsel would charge him for defending the case. (The order of conviction shows that the jail sentence was suspended during good behavior.)
It is insisted that the court erred in permitting this explanation by the plaintiff, and in this view we concur. The judgment of conviction was conclusive for the purposes for which the defendant offered it in evidence. But this error, in our opinion, cannot be regarded as prejudicial, because tbe jury clearly was not influenced by it. It did not enter into the decisive issue upon which the verdict necessarily turned,'as will now appear.
Plaintiff’s Instruction No. 8: “The court instructs the jury that an officer of the law has no right to arrest anyone without a warrant, unless they are committing some offense in his presence, violating either a State or city law; or, unless the officer in good faith believes the party has committed a felony, and is arresting him for the commission of the felony; and
Defendant’s Instruction No. 2: “The court instructs the jury that a police officer has the right to arrest, and it is his duty, under the law, to arrest, without a warrant, any person who he has reasonable or probable cause to believe has committed a felony. And, if the jury shall believe from the evidence in this ease that the plaintiff, Richardson, had been convicted of violating the prohibition law, and the defendant, Bourne, knew, or had been imformed of that fact, and the jury shall further believe from the evidence that the defendant, Bourne, at and prior to the time he attempted to make the arrest complained of, believed and had reasonable or probable cause to believe that plaintiff had been guilty of a second violation of the prohibition law by unlawfully selling liquor and was guilty of a felony, and that he was arresting him for the felony among other causes, then they are told that the defendant had the right to arrest plaintiff without a warrant.”
The verdict shows that, both as to any offense
Upon these considerations, we feel constrained to hold that, while the court erred in admitting the testimony, the error must be regarded as harmless.
It may be said before leaving this point that as to the order of conviction in the Pulaski Circuit Court, the plaintiff had previously, on cross-examination, made substantially the same explanation of his plea of guilty as in the Radford order, and did this, if not at the instance, at least with the acquiescence, of the defendant. It is insisted that, having previously invited this error in connection with the order in the Pulaski case, the defendant waived or rendered it harmless in regard to the Radford case, in accordance with the holding of this court in such cases as Southern Ry. Co. v. Blanford’s Adm’x, 105 Va. 273, 387, 54 S. E. 1, and Mohler v. Commonwealth, 132 Va. 713, 111 S. E. 454. It is unnecessary, for reasons already appearing, for us to decide whether the principle of waiver here invoked applies in this connection.
2. The plaintiff testified that on his arrival at Roanoke he was arrested by officers who said they
3. During the cross-examination of the defendant, counsel for the plaintiff elicited from him the fact that some years prior to the trial he had been removed from the police force of the city of Radford by the mayor, and the line of cross-examination being pursued by counsel indicated a purpose to show that the removal had been on account of indiscretion and rashness. This testimony was objected to, but the objection was overruled. Later on during the trial the defendant by counsel moved to strike out all such evidence, and the motion was overruled. Still later, but some time before the conclusion of the evidence, the court reconsidered these rulings and struck out all of. the evidence of the character here under consideration.
It is insisted that the evidence with respect to the removal of the defendant from the police force was not only wholly irrelevant, but was of such a damaging character as that the action of the court in striking it out did not cure the error in its admission. We cannot accede to this view of the question. As was said in the ease of Wash. & O. D. R. Co. v. Ward’s Adm’r, 119 Va. 334, 339, 89 S. E. 140, 142: “There are cases in which the error of admitting improper testimony, or the effect of mere statements of counsel, cannot be adequately overcome by a subsequent direction to the jury to disregard the objectionable evidence or state
It is said in the petition for writ of error that after the court had ruled upon the question and had stricken out the former evidence on the subject, counsel for plaintiff “to further prejudice defendant’s case before the jury, thereupon stated in open court in the presence of the jury as follows: ‘I expect to prove on charges preferred by him (mayor of Radford) against Mr. Bourne as being generally incompetent as a police officer, unfit to be an officer and wanting in discretion, that he, the mayor, had him removed from office.’ ”
In the brief of counsel for the plaintiff it is denied that this avowal was made in the presence of the jury, the contention being that it was dictated to the stenographer reporting the case merely for the purpose of preserving the exception in the record to the ruling of the court. However this may be, if it be conceded
4. The next assignment to be considered involves the instructions to the jury.
(a) Instruction No. 1 given for the plaintiff was as follows: “The court instructs the jury that the burden is on the defendant to show by a preponderance of the evidence that the arrest was by authority of law.”
It is said that this instruction ought to have told the jury definitely what was meant by “authority of law.” The instruction, however, was dealing merely with the question of burden of proof, and stated the rule in regard thereto correctly. As applied to this case, instruction No. 8 for the plaintiff and instruction No. 2 for the defendant, quoted above in full, informed the jury in an intelligent and practical way what constituted authority of law for the arrest of the plaintiff by the defendant. The case of Muscoe v. Commonwealth, 86 Va. 448, 10 S. E. 534, is cited but is not in point as supporting this assignment of error. In that ease the instruction condemned told the jury that they must decide from the evidence whether the arrest was unlawful or not, and left them without any satisfactory guide. As said by Judge Lewis in that case: “The court ought therefore to have explained to the jury what constitutes a legal arrest, and then have left it to them to say whether upon the evidence before them the arrest in question was legal or not. As it was,
(b) Instruction No. 3, given for the plaintiff, was as follows: “The eourt instructs the jury that it is the legal duty of an officer in making an arrest of an alleged offender, after he peaceably submits, to acquaint the party he proposes to arrest with the nature and character of the accusation of the alleged crime for which he is going to arrest him, unless the offense be committed in the presence of the officer, and, unless the jury shall believe from the evidence that such crime was committed in the presence of the officer when he attempted to make the arrest, or that said officer apprised the plaintiff of a felony charge against him, then, in such circumstances, the said plaintiff had the right to use such reasonable force as was necessary to prevent the arrest, and the officer had no right to shoot the plaintiff to prevent his escape.”
It is urged as the first objection to this instruction that there was no evidence to show that the plaintiff peaceably submitted to arrest. We do not think this position, upon a fair view of the evidence from the plaintiff’s standpoint, can be sustained. It is true that the plaintiff was not effectually and permanently detained by the officer, and in that sense the arrest was not completed, but this would be true in any ease where an officer orders an alleged offender to submit to arrest and the latter without resistance or refusal to submit asks for and is denied information as to the charge, and then resists and makes his escape. This is just what happened in this case if the evidence for the plaintiff is credited, because that evidence shows that
If the testimony of the plaintiff is true, and the jury evidently believed it was, the plaintiff did peaceably submit to the officer’s authority, and without show of resistance or refusal to accompany him, afforded the latter an opportunity to acquaint the plaintiff with the nature of the charges. Having been pointedly refused the information to which he had thus entitled himself, he had the right to make reasonable resistance. These conclusions are not in conflict with, but indeed necessarily follow from, the authorities cited on this point by counsel for the defendant, which are as follows: Richards v. Burgin, 159 Ala. 282, 49 So. 294, 1Ann. Cas. 898; 5 C. J. 392; Idem 420, note bottom right-hand page; Commonwealth v. Cooley, 6 Gray (Mass.) 350; U. S. v. Rice, 27 Fed. Cas. 795, No. 16, 153.
The second objection urged against the instruction is that “it makes it the absolute duty of a known officer making the arrest to acquaint the accused party with the nature and character of the accusation of the alleged crime for which he is going to arrest him, whether such party requests such information or not.” Strictly speaking, the instruction should have con-djtioned the right of the plaintiff to be informed of the felony charge upon a demand by him for the nature of the accusation. This defect in the instruction, however, was not harmful to the defendant in this case for two reasons. In the first place, the respective accounts of the circumstances surrounding
A further reason why this second objection urged against instruction No. 3 is not good is that instruction No. 6, given for the defendant, not in any substantial conflict with the former, removed any such difficulty as the objection suggests. Defendant’s instruction No. 6 was as follows:
“The court instructs the jury that if they believe from the evidence that the defendant had the right to arrest the plaintiff, then it was the duty of the plaintiff to quietly submit to arrest before demanding the cause, and if the jury shall believe from the evidence that upon the defendant attempting to arrest the plaintiff, and before the plaintiff submitted to arrest, the latter demanded the cause of the arrest, and refused to consider himself under arrest, then they are told that the defendant in no wise forfeited his right to the protection of the law by failing to notify plaintiff of the cause of his arrest, if they believe from the evidence that he demanded the cause.”
(c) The plaintiff’s instruction No. 6 told the jury that “if they believe he was permanently injured, and if they further believe that the wound was unlawfully or maliciously inflicted, that they may add to their verdict such exemplary damages as they may deem reasonable by way of punishment to the defendant for the malicious and unlawful act.” Complaint is made of this instruction because it tells the jury that they may add exemplary damages if they should And that the assault was unlawful or malicious, whereas, if it were merely unlawful and not malicious, no such damages could be properly annexed. In view of the seriousness of the injury as shown by the evidence, it does not seem very probable that much, if anything, was added to the verdict as punitive damages. Still, we cannot say that this instruction did not in some degree affect the result, and if the expression “unlawful or malicious” stood alone and unexplained, the objection might be serious. We are of opinion, however, that when the entire language of the instruction is construed as a whole, the jury could hardly have been misled to the prejudice of the defendant, because that portion of the instruction which says that the jury “may add to their verdict such exemplary damages as they may deem reasonable by way of punishment to the defendant for the malicious
(d) The plaintiff’s instruction No. 7, given over the objection of the defendant, was as follows:
“The court instructs the jury that while the burden of proof is on the plaintiff to make out his ease by a preponderance of the evidence; yet when he has so made out his case, that then the burden rests upon the defendant to sustain his allegations of a justifiable shooting; and if the jury shall believe from a preponderance of the evidence that C. H. Bourne shot John Richardson without a legal excuse therefor, that you should find a verdict in favor of the plaintiff in such sum as the evidence shows the said Richardson has sustained damages, but not to exceed the sum of ten thousand dollars.”
We find no error in this instruction. Its first proposition, that “the burden of proof was on the plaintiff to make out his case by a preponderance of
If we correctly apprehend the contention of counsel for defendant, in their argument against the instruction, it is that the plaintiff could not make out a prima facie case simply by proving (as he did) that he was shot by the defendant, but that he had to go further, and show circumstances attending the shooting which would show that it was unlawful. In this connection it is suggested that the act might have been accidental or justifiable, and the clear inference from the argument is that the burden was on the defendant to negative such possibilities. We do not think this is the law. Even in a criminal case, where the burden is on the Commonwealth to prove the charge beyond a reasonable doubt, there is a prima facie presumption that the.accused intended the natural consequences of his act. The same presumption prevails in a civil case. “Where the act forming the basis of the action was essentially wrongful, it is not necessary for the plaintiff, in order to make out a prima facie case, to show by direct evidence either an intention to commit the act or that.the defendant was in fault. 'The proof of the wrongful act is sufficient proof of such matters.” 2 R. C. L., p. 575, sec. 56.
In 5 C. J., p. 664, the text says: “The assault or battery having been proved, it then devolves upon the defendant to justify or show facts in mitigation,
For the reasons stated, we are of opinion that the judgment complained of must be affirmed. It is to be regretted, of course, that any officer, claiming to have acted in the discharge of his duty, should be required to pay damages for injuries which he has inflicted upon an alleged offender. We must remember, however, that if the testimony of the plaintiff in this ease is true — and the jury could not have found the verdict unless it accepted that testimony practically in toto, and likewise rejected the defendant’s evidence— then the officer in this case acted unlawfully and wilfully, and the judgment is a righteous one. Officers of the law must be accorded the fullest protection in the discharge of their duties, but the liberty of the citizen is of equal importance, and nothing can so militate against the effective administration of justice and a proper regard for the law of the land as unlawful and reckless conduct on the part of officers who are charged with its enforcement.
Affirmed.