113 Wash. 449 | Wash. | 1920
Lead Opinion
On Rehearing.
This case was heretofore heard and decided by a department of this court, and the majority
It is fundamental that a peace officer may lawfully arrest without a warrant a person whom he has reasonable or probable cause to believe has committed a felony, and
“The question of probable cause, or reasonable grounds for suspicion in making the arrest, is one of law, unless the evidence out of which it arises is conflicting, in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and to submit to them only the question as to the existence of such facts. ” 2 R. C. L. 451.
Murphy’s first knowledge of the subject-matter came to him through the presentation to him of a letter from Prosecutor Brown of Whatcom county, which reads:
W. P. Brown
Prosecuting Attorney Telephone 205.
PROSECUTING ATTORNEY WHATCOM COUNTY BELLINGHAM, WASHINGTON
June 9, 1917.
W. P. Murphy, Esq.,
Sheriff Yakima County,
North Yakima, Washington.
Dear Sir:
This will introduce Mr. Frank Leighton, who has been in this vicinity for some time representing Delco-Light Products.
Mr. Leighton has had some business relations with Harry J. Eberhart, and I am of the opinion that as a result of the representations and pretenses made by Mr. Eberhart that he is guilty*451 of the' crime of grand larceny. However, it is not the desire of any one concerned to cause a prosecution of Mr. Eberhart, which would result in expense to the taxpayers, if it is possible to avoid such prosecution.
I have suggested to Mr. Leighton that he go to North Yakima and see Mr. Eberhart, and endeavor to arrange with him for an immediate settlement of the matter in issue, and in the event of his inability to settle the matter satisfactorily, that he request your office to cause the arrest of Mr. Eberhart and wire me over your signature to that effect, whereupon I will at once file an information and place a warrant in the hands of the sheriff with instructions to go to Yakima. °
Will you please if Mr. Leighton desires have some one accompany him when he goes to call upon Mr. Eberhart, and remain in the neighborhood so that if it is necessary to arrest Eberhart there will be no chance of his getting away.
If the suggestions herein made are deemed impracticable after a conference with Mr. Leighton, will you please take any necessary steps to accomplish the object herein intended.
Yours truly,
WB-MB W. P. Brown.
It will be observed tbat this letter clearly indicates that the writer was the prosecuting attorney of "What-com county, and it is not denied that Murphy knew him to be such; that as such prosecutor he had made so much of an investigation of the purported facts as he deemed necessary and proper, and the statement is made clearly and without qualification that, in the opinion of the writer, Mr. Eberhart was guilty of the crime of grand larceny. Nothing thereafter contained in the letter in any way tends to weaken or cast doubt upon that statement, and even though, as contended, Murphy may have gathered from the letter that the prosecutor was more concerned with the collection of something supposed to be due Leighton than with the enforcement of the law, that was a matter which did not concern him and he could know nothing of the facts, if any there were, which might tend to justify such a course. In view of the sheriff’s duty to execute processes from any county of the state, the fact that
We conclude, therefore, that the trial court should have withdrawn the first cause of action from the jury on defendant’s motion for nonsuit.
This disposition of the first cause of action makes it unnecessary to consider the action of the trial court in denying the motion for a continuance, because the evidence sought to be procured through such continuance related only to the first cause of action.
With reference to the second cause of action, we stand upon the ruling in Riggs v. German, 81 Wash.
(a) Evidence of prior brutal treatment of a prisoner during Murphy’s term of office, and known to him;
(b) The rules of the “Kangaroo Court” as here disclosed provide in a number of instances for severe punishment without disclosing the nature of such punishment, and from such rules and other evidence in the case, the jury might draw the conclusion that the sheriff knew that “severely punished” meant the inflicting of physical punishment which might result in injuries; and -
(c) The fact that the sheriff’s approval of the rules was typewritten, save only his signature and the clause withholding his approval of fines and punishments, which were written in with a pen, together with the testimony (denied, it is true) that the words intended to withhold his approval of the fines and punishment were not in the document at the time of the infliction of the injuries complained of, all tend to rebut the presumption that the sheriff performed his full duty in the premises, and present questions of fact which were properly submitted to the jury.
The jury returned a verdict for $2,500 upon this cause of action which the trial court reduced to $1,500, and it is contended that this amount is still excessive. Respondent was roughly seized, overborne and thrown into a bath tub filled with cold water. He testifies to nothing in the way of substantial injuries or subsequent suffering except such as might, and probably
Reversed and remanded for further proceedings not inconsistent with these views.
Parker, Fullerton, Mount, Bridges, and Mackintosh, JJ., concur.
Dissenting Opinion
(dissenting) — I concur in the decision of the majority upon the first cause of action, but dissent from that on the-second cause of action. I agree, however, that if any recovery be allowed upon the second cause of action, it should be reduced, as has been done.
