198 Ky. 646 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
While driving his automobile from Elkton by way of Trenton and Pembroke to Hopkinsville, in April, 1920, appellant L. O. Crawford was halted and fired on in Pembroke by appellee Harry Bollinger, policeman of Pembroke, and a posse whom he had summoned to help make an arrest and who were directed to and did attempt to arrest, to them at the time an unknown man, or information that he had run down and seriously injured or killed a doctor in Elkton. Several bullets passed through the car driven by appellant, and one bullet passed through his clothing; powder from a discharged pistol burned his face and his car was wrecked and practically destroyed by a collision with an obstruction placed by the officer and his posse in the street of Pembroke, for the purpose of stopping appellant and his car. This suit was instituted in the name of the Commonwealth of Kentupky for the use and benefit of Crawford against Bollinger as policeman and his surety, United States Fidelity and Guaranty Company, of Baltimore, and against James Denny and Clarence Buckner and Arthur Hampton, whom it is alleged were members of the officer’s posse and who took part in the placing of the obstruction in the street and in the firing of the weapons which injured and destroyed the car, and frightened and humiliated appellant Crawford, to recover damages in the sum of $50,000.00 for the injury to Crawford, and $1,000.00 for injury to his automobile.
By answer appellees Bollinger and Denny admitted that they had attempted to accomplish the arrest of appellant Crawford in the town of Pembroke on the oc
On a trial before a jury a verdict was returned in favor of the appellees Bollinger and Denny. Judgment being entered upon this verdict in accordance with its terms, Crawford, through the Commonwealth, prosecutes this appeal. He makes the following contentions:
1. The verdict was against the law.
2. The verdict was not supported by the evidence.
3. The verdict was contrary to the law and evidence.
4. The court erred in admitting incompetent evidence offered by defendants, duly objected and excepted to.
5. The court erred in rejecting competent evidence offered by plaintiff,
6. The court erred in giving instructions Nos. 2, 3, and A, which instructions were objected to and excepted to by plaintiffs at the time.
7. The court erred in refusing instructions B and O offered by plaintiffs and which ruling of the court was objected and excepted to by plaintiffs at the time.
\Of all these contentions he argues the sixth one alone at length. However, he does insist that the court erred in allowing the evidence showing what happened to appellant Crawford in Elkton and Trenton on his way to Pembroke. Of this evidence he is in no position to complain for on cross-examination he brought out practically all of it.
. -Coming now to the consideration of the sixth ground upon which he relies, reading: “The court erred in
giving instructions Nos. 2, 3 and A, which instructions were objected to and excepted to by plaintiff at the time,” we may say that instruction No. 2 relates to the measure •of damages only, and of course had nothing whatever to do with the jury finding a verdict for the defendants.
The third instruction involves a construction of section 36 of the Criminal Code, reading:
“A peace officer may make an arrest . . . without a warrant when a public offense is committed in his*650 presence, or when he has reasonable grounds for believing that the person arrested has committed a felony.”
The question involved in this case is: Did the policeman Bollinger and his posse, acting under him at the time they placed the obstruction in the street and signalled appellant to stop and demanded his arrest, have reasonable grounds for believing that Crawford had committed a felony? As stated above the evidence shows in substance that some persons at Trenton, after appellant had passed through that town on his way to Pembroke, called up the depot agent in Pembroke and instructed him to inform Bollinger, the marshal, that appellant was traveling in that direction in a car and that he had run over and killed a person at Elkton, and to arrest him, and that the officers of Trenton were on their way to get him. Soon after that and after the marshal had made arrangements to arrest appellant as he came through the town and before his arrival a bunch of men in an automobile, including the marshal of Trenton, arrived in town and saw appellee Bollinger and told him in substance that appellant was only a short distance behind them coming in the direction of Pembroke and that it was their information that appellant had run over and killed a man at Elkton, and desired that appellee Bollinger arrest the appellant; that appellee relied upon and believed the statements and information he received from the marshal of Trenton and from the telephonic communication, and believed in good faith that appellant had committed a felony by running over and killing a person in Elkton, and acted upon that belief in attempting to arrest him. If that information amounted to reasonable grounds for believing that appellant Crawford had committed a felony, then the marshal was within his rights when he attempted to arrest appellant and he did nothing more than was his duty when he put the obstruction across the street of Pembroke and then stationed himself under an electric light in the middle of the street and signalled appellant Crawford to stop as he approached. What are reasonable grounds for believing one has committed a felony is often a question of fact. When the facts are mixed it is the duty of the court to submit the question to the jury. Instruction No. 3. directed the jury that if it believed from the evidence that Bollinger, as marshal of the town of Pembroke, received information that a person who turned out to be Crawford had committed a felony by running his automobile against another person
Instruction “A” simply directed the jury to find and return a verdict for Arthur Hampton and the United States Fidelity & Guaranty Company of Baltimore. As there was no evidence tending to show that either Buckner or Hampton did any of the things of which appellant complains in his petition, they were entitled to a peremptory instruction. While the guaranty company was surety on the bond of appellant it did not undertake to indemnify persons against the wrongful acts of the policeman except such as amounted to theft or embezzlement.
There appearing no error to the substantial rights of appellant, the judgment is affirmed.
Judgment affirmed.