190 N.W. 804 | S.D. | 1922
This cause was formerly here on appeal from' an order overruling a demurrer to1 the complaint, and is reported in.43 S. D. 398, 179 N. W. at'page 490.
The action was brought for the recovery • of damages for false imprisonment. Plaintiff alleges in his complaint that the defendants unlawfully, maliciously, by force and with' intent to injure plaintiff, compelled him to go with them1 to the police station in the city of Sioux Falls, and there detained him - and restrained him of his liberty^ for the period of one hour without any right or authority so to do; and that defendants willfully and maliciously, and with intent to injure plaintiff, caused the fact of plaintiff's arrest to be given wide publicity through the newspapers of the state. Defendants admit that they arrested and detained plaintiff for a period of time, and admit that such árrest was made without a warrant, but justify their acts on the ground that they were peace officers at the time, of the -arrest, and that the arrest was made for a public offense committed in their-presence. ••
At the close of plaintiff’s testimony, the court directed a verdict for-the defendants on the ground1'that the evidence was not sufficient to warrant a verdict against the defendants. Judgment was entered dismissing the action' at plaintiff’s cost; and plaintiff appeals.
“The sole and only question is whether under the Constitution and the statutes of South Dakota, the defendants had a right to arrest and take in custody and hold the plaintiff under the circumstances as appeared by the evidence in the case.”
This reduces the case to the single question: Did the circumstances, as they existed at the time in question, justify the respondents in making the arrest without a warrant? Section 4553, Revised Code 1919, provides that:
“A peace officer may, without a warrant, arrest a person; * * * for a public offense, committed or attempted in his presence.”
At the time of the arrest the defendant Burnside was mayor of the city of Siou'x-Falls, and the other three defendants were regular members of the police force of that city, and that they were peace officers within the meaning of section 4553 does not seemi to- be disputed.
Section 10299, Revised Code, provides that:
“The keeping, storing or giving away of intoxicating liquors, or any shift or device whatever to evade the provisions of this article, shall be deemed unlawful within the provisions of this article, and shall be punished as unlawful selling is punished.”
The language of this section is so plain that there can be no doubt of its meaning. In the plainest terms it makes the possession of intoxicating liquors under the circumstances shown in this case unlawful.
The judgment and order appealed from are affirmed.
Note — Reported in 190 N. W. 804. See American Key-Numbered Digest, (1) Arrest, Key-No. 63(3), 5 C. J. Secs. 28 and 31, 8 R. C. L. 447; (2) Intoxicating Liquors, Key-No. 131, 23 Cyc. 174.
For authority of officer to make an- arrest for a breach of peace committed in his presence without a warrant, see note 51 L. R. A. 205.