Journey v. . Sharpe , 49 N.C. 165 ( 1856 )

A single question is presented by this case: Did his Honor err in his instructions to the jury? The defendant was sued for the acts of a constable, and there had been put into his hands, by the defendant, a paper writing signed by a magistrate, purporting to be a warrant against the plaintiff. He went to her house, and without getting off his horse, or going into the yard, told her he had a warrant against her. She replied that she expected such a thing. He then directed her when and where to attend the trial, which she promised to do, and did. His Honor instructed the jury this was no arrest. In this there is error. An arrest is simply taking the body of an individual by an officer, under legal process; but it has been decided that, to constitute an arrest, it is not necessary for the officer to touch the person. It is sufficient if, being in his presence, he tells him he has such a precept, and the person says, "I submit to your authority." So, if the officer does touch the individual, it may, or may not, amount to an arrest, according to the intention with which it is done. Where a transaction takes its character from the intention of the parties, this intent is a matter of fact to be submitted to the jury. Here there was no touching; the whole transaction was of an equivocal character, depending on the intent of the parties, and ought to have been submitted to the jury with proper instructions. Jones v. Jones, 13 Ire. Rep. 418.

It was said in the argument, that the officer's return was prima facie evidence that he had made the arrest. Be that as it may, it is not important in the view we have taken of the case before us. In Bland v.Whitfield, 1 Jones' Rep. 123, the same defense was made as to a sheriff's return upon an execution levied upon property; the Court say the return upon the execution is prima facie evidence in the proceedings of which it forms a part; whether it is also prima facie evidence in another and a different proceeding or action, may well "be questioned."

Again, it is said, "supposing the return to be prima facie evidence that a levy was made, it remains an open question whether the officer did, or did not, lay hands on the property, c." In this case, the return made by the officer is ``executed.' If the paper writing, under which the officer acted, had been a legal precept, still the return would have left the question an open one as to whether the officer had actually taken the body of the defendant mentioned in the precept, or whether the circumstances disclosed were intended by the parties as an arrest. We have seen that, in the latter case, the efficiency of the act was a question of fact for the jury. But his Honor took the whole case from the jury, and considering it a question purely of law, charged that no arrest was proved. What is an arrest, is a question of law. Whether there has been an arrest, under particular circumstances, depending on the intent, is a question of fact. See Jones v. Jones, supra — same case, 1 Jones' Rep. 491. There is error. The judgment is reversed, and a venire de novo awarded.

PER CURIAM. Judgment reversed.