HENDERSON v. THE STATE.
36631
Court of Appeals of Georgia
Decided May 28, 1957.
95 Ga. App. 830
In special ground 17 (numbered 21), counsel for the defendants contends that the following principle of law should have been applied to both the plaintiff and the defendants, but was not: “If you find that the defendant violated any one or more of the statutes, or the ordinances of the City of Savannah, he [she?] would have been guilty of negligence per se or negligence as a matter of law.” At various points in its instructions to the jury, the court stated that the degree of diligence owed was the same for both the plaintiff and the defendants and also stated that if the jury should find that the ambulance was not an authorized emergency vehicle it should have been treated as any other vehicle. There is no merit in this ground.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
Frank M. Gleason, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
CARLISLE, J. The defendant, Joe Henderson, was tried and convicted under an indictment charging that he “did unlawfully arrest, confine and detain Henry Brown, without process, warrant, or legal authority to justify it, in the county jail at Ringgold, Georgia. . .”
Undеr the view which this court takes of the case, the controlling issue is contained in special ground 7 of the amended motion for new trial which is quoted here:
“The court erred in failing, without a written request being made, to give the jury appropriate instructions on every substantial issue in the casе presented by the evidence. The controlling issue in this case was whether or not the defendant, under the physical facts and circumstances of Brown‘s car being partly on and partly off the highway, in a position dangerous to other users of the highway, on a sharp curve which was wet, sliсk and dangerous, with the motor running, and Brown, himself, under the wheel, spinning his wheels in soft dirt, with his eyes red and swollen, apparently unable to talk, or else being sullen and refusing to talk when spoken to, coupled with his staggering around when he got out of his car, all of which occurred in the presence of the defendant, a member of the State Highway Patrol, afforded probable cause for defendant to arrest Brown without a warrant.
“The court did not charge on this vital and controlling issue.
“Certainly the defendant, charged by law (
Section 92A-329, Code ) [sic,Code Ann. Supp. 92A-239 ?] was required to investigate incidents of this nature and to safeguard the lives and property of the public on highways. From what he saw, he concluded in good faith that Brown was driving under the influence of intoxicants or drugs. One is guilty of driving under the influence when he is so affected by the intoxicant, as to make him less safe to drive the vehicle. Under the law, it became his duty to arrest Brown without a warrant. Had the jury beеn instructed on this vital and controlling issue, it would have understood what issue it was trying. Instead, the jury was told that if Brown was unlawfully arrested, the defendant would be guilty of the offense charged.”
Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will not only be required to pass
“It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the lives and property of the public.”
“They [the Uniform Division of the Department of Public Safety] shall not exercise any power of arrest except for offenses arising for violation of the traffic laws or laws regulating the use, ownership and control of motor vehicles, or for offenses committed upon the highways of the State. . .”
Under the terms of
“False imprisonment is a violation of the рersonal liberty of a person and consists in confinement or detention of such person without sufficient legal authority.”
“Any person who shall arrest, confine, or detain a person without process, warrant, or legal authority to justify it, shall be guilty of a misdemeanor.”
“An arrest for a crime may be made by an officer . . . without a warrant if the offense is committed in his presence . . .”
“The motives, good faith, and purpose of the defendants are
It is evident in this casе that the jury was authorized to find that the defendant had probable cause to believe that the prosecutor was intoxicated and operating a motor vehicle on the public highway and that he was justified in making the arrest without a warrant for this offense committed in his presence and this being the defendant‘s sole defense, he was deprived of a fair trial when the judge did not instruct the jury upon such defense.
Since the jury was authorized to find that the prosecutor was legally arrested, the evidence did not demand the finding that the prosecutor was illegally detained or confined. The evidence as to his drunkness varied from complete sobriety to total drunkenness, and the prosecutor himself testified: “Mr. Brown, actually this allegation of yours, here in this indictment, you allege that you were detained without process, warrant, or legal authority, it is not correct is it, (?) the only reason you were detained was
As the case must be remanded for a new trial, and the other assignments of error are such as are not likely to recur upon another trial, such assignments of error аre not considered here.
There having been a dissent to the original opinion reversing this case, the case was, pursuant to the Act of the General Assembly, approved March 8, 1954 (
Judgment reversed. Felton, C. J., and Gardner, P. J., concur. Quillian, J., concurs specially. Townsend and Nichols, JJ., dissent.
QUILLIAN, J., concurring specially. I concur in the result of the majority opinion. From the holding in Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6) (72 S. E. 51), a case of the nature we now consider, the arrest and detention are parts of a single legal transaction, elements of one offense. If the defendant arrested the person of anоther illegally, he could not then legally detain or imprison him. If he arrested such person legally, illegally detaining him would have the effect of converting the legal arrest into an illegal arrest.
The defendant‘s animus or good faith in both making the arrest and detaining the prosecuting witness in this casе was vital. The court should have so instructed the jury. One of the best settled rules of criminal law is that there can be no crime unless there was in the defendant‘s conduct a union or joint operation of act and intent to violate the law or a culpable negligence on his part.
The court likewise erred in failing to instruct the jury as to the elements of the offense. In Habersham v. State, 56 Ga. 62 (2), the Supreme Court through Justice Bleckley said: “On the trial of a prosecution for aiding to escape from custody, the fact of custody, is for the jury, and so also is the legality of that particular custody. The court should acquaint the jury with the needful rules of law to enable them to distinguish legal from illegal custody, and let them make the application thereof to the facts in evidence.”
Certainly the holding is equally applicable to a cause of illegal arrest and detention.
The fourth headnote of Habersham v. State, 56 Ga. 62, supra, reads: “Custody by a private person after a legаl arrest without warrant, becomes illegal if protracted for an unreasonable time, and whether the time was reasonable or unreasonable is a question for the jury, under proper instructions from the court as to the promptness which the law exacts in conveying the party arrested before a magistrate.”
It does not appear from the record that the press of official business, or other exigencies of the case did not justify the defendant in leaving the prosecution witness in jail temporarily and for a reasonable time, and it was certainly а question for the jury as to whether less than an hour was a reasonable time in which to hold him in custody before carrying him before a magistrate.
In Harris v. City of Atlanta, 62 Ga. 290 (3) four days, and in Ocean Steamship Company v. Williams, 69 Ga. 251 (9) twenty-six hours elapsed subsequent to the arrest before the person detained was presented to a magistrate. In both cases it was held to bе a question for the jury whether the period of detention was reasonable.
TOWNSEND, J., dissenting. The defendant, a State Trooper, was indicted under
The case, by the majority opinion, is being reversed because of failure on the part of the court to charge good faith in making the arrest by the defendant as a defense аgainst the crime of false imprisonment of which he was convicted. On the question of whether or not good faith in making such an arrest constitutes a defense to this crime see Holliday v. Coleman, 12 Ga. App. 779 (78 S. E. 482), and Goodwin v. Allen, 83 Ga. App. 615 (3) (64 S. E. 2d 212). However, assuming without admitting, that such good faith in making the arrest constitutes a defense to an unlawful arrest, the statemеnt of the defendant, the testimony of his associate officer, and the testimony of two State‘s witnesses is without conflict and demands the conclusion that this arresting officer, who made the arrest without a warrant, did not convey the alleged offender before the most convenient officer authorized to receive an affidavit and to issue a warrant. To comply with this law, arresting officers cannot legally at 3 o‘clock on the after-
I am authorized to state that Nichols, J., concurs in this dissent.