155 S.E. 127 | W. Va. | 1930
The gist of this action of trespass on the case — false imprisonment — is that plaintiff was placed under arrest and detained by W. A. Rinehart, constable, until the latter could secure a warrant. At the completion of plaintiff's evidence, the same was stricken on motion of the several defendants, including Rinehart, and a verdict directed in their favor. Plaintiff brings error.
"False imprisonment is the unlawful arrest or detention of a person, without warrant, or by an illegal warrant, or a warrant illegally executed, and either in a prison or a place used temporarily for that purpose, or by force and constraint without confinement." 8 Ency. Pl. Prac. 841.
It appears from the evidence adduced that Rinehart, acting under a search warrant (section 9, chapter 32-A, Code) searched the house of one H. B. Hackett for intoxicating liquors. The return recites: "Executed the within warrant on the 5th day of March, 1928, by searching the house of H. B. Hackett and no liquor found, and arrested Sadie Hackett and Frank Noce who I now have before the justice for adultery." The justice, on being informed of the particulars, filled out a complaint charging adultery and fornication, and the same was signed by Rinehart.
The return on the search and seizure warrant shows that the constable was not warranted in making an arrest thereunder.State v. Massie,
The evidence in this case, not being controverted, clearly entitled plaintiff under the foregoing principles of law to a verdict for nominal damages against the constable — nothing having been introduced to show that any offense had been committed in the latter's presence. No evidence having been introduced which in any way tended to implicate the justice of the peace, his sureties, or the sureties on the constable's bond, who seemingly were joined as joint tort feasors, the judgment as to them was proper.
The judgment of the circuit court is therefore reversed in so far as Rinehart, constable, is concerned and a new trial awarded as to him. As to the other defendants the judgment is affirmed.
Affirmed in part; reversed in part. *394