Vice v. Holley , 88 Miss. 572 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

It was error in the circuit judge to give a peremptory instruction to find for defendant. At the time the arrest is said to have been made, Holley had no warrant for the arrest of Vice, and his incarceration was in another state from that in which the offense was charged to have been committed. Kelly was the man charged with crime at Pass Christian, Miss., and not Vice. Vice was locked up in jail in New Orleans one day, and again in Pass Christian for about twenty-four hours, protesting, as he says, all the while that he was not the man wanted, and giving the officer the names of various parties from whom he might ascertain his mistake; but no attention seems to have been paid to it by Holley. Any officer, in making an arrest, acts at his own peril, and if he makes a mistake, and arrests the wrong person, however innocently he may have acted, he is liable, unless the party complaining has brought the injury upon himself by misstatements and misrepresentations which led to the arrest. If Vice voluntarily went to the police station and submitted to have himself locked up until the next morning to await the return of Holley to Pass Christian, and then voluntarily went with the officer to Pass Christian and again submitted voluntarily to being locked up for twenty-four hours, without any compulsion being used, either actual or constructive, knowing at the time his right to refuse, then Holley is not liable; but it was for the jury to pass on the facts, and to say whether or not this was the case.

This is not a suit for malicious prosecution. This is a suit for false arrest of a party without warrant, beyond the jurisdiction of the state, by an officer of the state — a person not charged with crime nor suspected of any offense. In a suit for false imprisonment, mistake as to identity of the party arrested may be considered in mitigation of damages and on the question of malice; but it can never defeat the action. Hays v. Creary, 60 Texas, 445; Formwalt v. Hylton, 66 Texas, 288 (1 S. W. Rep., 376) ; Landrum v. Wells (Texas Civ. App.), 26 S. W. Rep., 1001; 12 Ency. of Law (2d ed.), 768; 19 Cyc., 342; 3 Wait’s Action and Defenses, 316.

Reversed and remanded.