104 So. 747 | La. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *876 Plaintiff was a resident of the parish of St. John the Baptist, and pastor of a colored church congregation therein, and defendant was a deputy sheriff in the same parish.
The defendant died after the filing of this suit, but before citation was served upon him, and his widow and heirs have been made parties defendant in his stead.
Of course none of this has any but the very remotest bearing on the issue of this case, which is an action for damages for malicious prosecution and alleged false arrest. The purpose of it was to show that plaintiff had, or had not, a good reputation previous to the occurrences hereinafter mentioned. But the result of all that line of testimony is to show that plaintiff is neither the turbulent and persistent lawbreaker that defendants seek to make him out, nor yet the very meek and altogether submissive peace lover that plaintiff would have us believe him. On the whole, plaintiff seems to have been simply an average good citizen with the average good reputation of such, and what is more to the purpose, his good reputation does not appear to have suffered any by reason of the said occurrences.
On the other hand, the main facts are practically undisputed, being for the most part shown by documentary evidence.
In March, 1914, and for some time prior thereto, defendant held a $250 mortgage on plaintiff's wife's property, and had been pressing for payment thereof. Plaintiff claims that defendant interfered with the sale thereof to some third person for more than defendant would give when he took it over in March, 1914, for $375, less the amount of his mortgage. And out of this arose, according to plaintiff, some feeling between them, to which feeling plaintiff attributes an alleged enmity against him on the part of defendant, which he assigns as the motive for the occurrences complained of. Defendant's lips being sealed by death, we are, of course, without his version of the matter.
On June 19th, defendant came to the barroom conducted by the partnership, and heard of plaintiff's attempt to collect the claim; and then, as nearly as we can collect from the testimony of plaintiff himself and of his first witness, who alone testified as to the occurrence, this is about what took place:
Defendant was standing on the barroom gallery, and plaintiff was walking in his garden, which was separated from the barroom premises by a fence some four or five feet high. Defendant called to plaintiff twice, but plaintiff did not answer. Defendant then said, "G__ d___ you; why don't you answer?" Plaintiff then said, "Don't you curse me," and then jumped over the fence and walked toward defendant. Whereupon the dialogue proceeded about as follows:
"Defendant: You have cheek to ask these people for rent.
"Plaintiff: You attend to your business and let mine alone.
"Defendant: That is my business.
"Plaintiff: No it ain't your business.
"Defendant: What is my business?
"Plaintiff: Your business as sheriff is to keep peace in the parish and not to break it.
"Defendant: Yes? (Then, jumping off the gallery and mounting his horse:) I'm going to get a warrant, and want to find you when I come back.
"Plaintiff: All right; I'll be here."
This all occurred about 6 o'clock in the evening.
According to plaintiff, each time defendant spoke he ended with "G__ d___ you"; but his witness testifies to the use of that curse only once.
Be that as it may, defendant thereupon went at once before the justice of the peace and swore to a charge against plaintiff of"unlawfully and feloniously interfering with me (defendant) on mypremises and acting saucy" (sic). *880
A warrant issued that same evening, but apparently was not placed at once in the hands of the constable. Defendant, however, sent for the constable, and upon his arrival asked to have plaintiff arrested. When the constable said he had no warrant, defendant said to him that it made no difference, and to arrest plaintiff anyhow. Defendant and the constable then went together to plaintiff's house to arrest him, but being told by plaintiff's wife that plaintiff was not at home, they gave it over for the time being.
In point of fact plaintiff was at home, but very naturally did not care to spend the night in jail. But, knowing of the charge, plaintiff did not wait to be arrested, and voluntarily surrendered next morning to the sheriff himself (not to plaintiff, his deputy). He then accompanied the sheriff towards the courthouse, and, the warrant having been placed in the hands of the sheriff whilst they were on the way, plaintiff was placed in jail upon arrival, and remained there some 8 or 10 hours, until released on a small bond.
But to keep our jurisprudence straight, and not have this occurrence referred to as one example of a false arrest, we say that here there was no false arrest. True, when the circumstances are such as to render an arrest illegal without a warrant, neither a private person nor an officer has a right to make an arrest unless he has the warrant with him at the time, even though *881
a warrant has actually been issued, and the person arrested knows that it has been issued. 5 Corp. Jur. 391, § 14. But to constitute a false arrest there must first be an arrest, and here there was no arrest, for to constitute an arrest there must be an actual taking into custody, and the going in search of a person for the purpose of arresting him is not an arrest, if in fact such person is not taken into custody, nor yet is a voluntary surrender to an officer who holds no warrant an arrest. See Berry v. Bass,
"Although not always observed, the distinction between malicious prosecution and false imprisonment [or false arrest] is fundamental. But briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one in which false imprisonment will lie, is that in the former the detention is malicious but under the due forms of law, whereas in the latter the detention is without color of legal authority." 25 Corp. Jur. 444, 445, § 3.
And this fundamental difference leads to very different results in these two distinct species of torts, but we need pursue the subject no further in view of what we said at the opening of this paragraph.
Evidence of all this was admitted over the purely frivolous objection of defendant's that this was "hearsay." But no objection was made to said testimony, at that or any other time, that same did not show an actual *882 termination of the prosecution favorable to plaintiff.
However, when the case was closed, and the evidence failed to show that the district attorney had gone through the idle formality of filing an information and following it by a nolle prosequi (there being in fact nothing to nol. pros.), and on the very day the case was finally submitted in the court below, defendants filed an exception that "the petition and evidence taken shows no right or cause of action."
The exception is wholly without merit. Pretermitting the question whether the district attorney's refusal to act did not of it self constitute a termination of the prosecution, nevertheless, the offense (if that term be at all appropriate) had long been prescribed under Rev. Stat. § 986 (amended by Act 73 of 1898, p. 96), when this testimony was given (December 20, 1921). Hence, the evidence shows that the prosecution had then terminated. For —
"Any mode of termination is sufficient, which constitutes a bona fide and final disposition on the merits of the particular case by the proper judicial officer or body, or which amounts to such a cessation of proceedings as to render them incapable of being revived." 26 Cyc. 57.
And at the very best the action was only premature, and exception thereto on that ground came too late after issue joined.
In fine, "Interest reipublicæ ut sit finis litium;" and the only result of maintaining the exception at this time would be to require the suit to be filed anew. See Roehl's Digest, vol. 2, p. 1348, No. 12, citing Jones v. Texas Pacific R. Co.,
Upon this charge plaintiff was duly arrested and detained in jail some 8 days, when he was released on bond. And of course the grand jury returned "Not a true bill" when asked by the districtattorney to indict plaintiff for "breaking and entering in the nighttime with burglarious intent."
But aside from the fact that, as deputy sheriff, he (properly) refused to release plaintiff until he had furnished a sufficient surety on the bail bond fixed by the justice, defendant had no other connection with this matter than to advise Tregre that he should make some charge, not this particular charge, against plaintiff. And defendant was not far wrong, if wrong at all, in believing that plaintiff had by his said conduct been guilty of a misdemeanor. See *884 Rev. Stat. 1870, § 822 (amended by Act 197 of 1898, p. 448), and Rev. Stat. § 827.
Our conclusion is that defendant is not responsible in connection with this charge.
He has prayed for "interest from judicial demand," but this we cannot allow. These occurrences took place in 1914, and the suit was filed in 1915, but before 1916 interest on damages arising ex delicto could be allowed only from the date of the judgment liquidating said damages. Robertson v. Green, 18 La. Ann. 28. And Act 206 of 1916, p. 459, providing that "legal interest shall, hereafter, attach from date of judicial demand, on all judgments, sounding in damages, `ex delicto,'" has been held not to be retroactive. Tortorice v. Yazoo M.V.R. Co.,
The judgment below was for defendant, and hence must be reversed and rendered in accordance with R.C.C. arts. 2086, 2087.
It is further ordered that plaintiff have judgment against all said defendants in solido for all costs of both courts. *885