Johnson v. Mayor of Americus , 46 Ga. 80 ( 1872 )

Warner, Chief Justice.

This was an action of trespass vi et armis, brought by 'the plaintiff against the defendants, to recover damages for an alleged false imprisonment. On the trial of the case the jury found a verdict for the defendants. Exceptions were taken to the rulings and charge of the Court, as specified and set forth in the record, which are assigned as error here. It appears, from the evidence in the record, that the plaintiff was arrested in the city of Americus for disorderly conduct, in violation of the ordinances of the city. The arrest was made by Lee and Wheeler, (who were acting as policemen under the authority of the City Council,) about sundown on the 9th day of June, 1870, without any written warrant, and the plaintiff was confined in the guard-house of the city until ten o’clock next morning, when he was brought before the Mayor, and he pleaded guilty to the charge against him, and was fined $10. The main question in the case is, whether the defendants were protected in making the arrest of the plaintiff and confining him in the guard-house under the provisions of the charter of incorporation and the ordinances of the city of Americus. The twentieth aud twenty-sixth sections of the Act of Incorporation confer the power and authority on the Mayor and City Council of the city of Americus to enact the ordinances under the authority of which the plaintiff was arrested. But it is said the Act of Incorporation and the ordinances are unconstitutional because they authorize the arrest to be made without a written warrant or process. The Code authorizes an arrest to be made by an officer or a private person, without a warrant, when the offense is committed in his presence, and there is likely to be a failure of justice for want of an officer to issue a warrant: Code, sections 4626, 4627. The provisions of the Code upon this subject is nothing more than the affirmance of the principles of the common law: 4th Bl. Com., 292. In every case of an arrest without warrant, the person arresting should, without unreasonable delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant, and the imprisonment of the offender beyond a reasonable time allowed for this purpose would not be legal: Code, section 4628. The Act of Incorporation empowers the Mayor and City Council to establish and regulate a city guard, who shall have the right to take up all disorderly persons and all persons committing or attempting to commit any crime, and to commit them to the guard-house to await their trial the next day. By the twenty-eighth section of the ordinances of the city it is made the duty of the marshal, deputy marshal and policemen to preserve order in the city, to suppress all affrays and riots, to arrest all drunken, disorderly or riotous persons who are disturbing the peace and quiet of the city, and commit them to the guard-house or bring them before the Mayor to be dealt with as the evidence produced shall warrant. In the opinion of the General Assembly, in conferring the power upon the Mayor and Council of the city of Americus to pass the ordinance under which the plaintiff was arrested, his arrest and detention in the guard-house without a warrant until the next day to await his trial, was not an unreasonable delay in bringing the offender before the proper officer for a hearing. Construing the Constitution in the light of the common law in regard to arrests without a warrant, the Act of the General Assembly conferring the power upon the City Council, or the ordinances thereof now complained of, are not unconstitutional. The arrest and detention of the plaintiff without a written warrant until the next day for a hearing of his case before the Mayor, under the statement of facts disclosed in the record, was not illegal. Whilst it is the duty of the Courts to protect the liberty of the citizen, it is also the duty of the Courts to protect society against the wanton and illegal exercise of that liberty.

The plaintiff at the trial objected to those of the jurors included in the panel of twenty-four who resided within the corporate limits of the city of Americus, for cause, as being incompetent jurors to try the case. The objection was overruled and the plaintiff excepted. What number of the twenty-four resided within the city limits, or whether they were all stricken by the plaintiff in selecting the jury, the record does not inform us. According to the ruling of this Court in the case of The Mayor of Columbus vs. Goetchius, 7th Georgia Reports, 139, the jurors who resided within the corporate limits of the city were incompetent jurors, and it was error in the Court in overruling the objection to them. But, in our judgment, inasmuch as the verdict of the jury in this case was right, both under the law and the facts of the case, and a different verdict should not have been rendered by any jury, we will not reverse the judgment of the Court below on the ground of the objection to a portion of the jurymen constituting the panel of twenty-four, nor for any mere technical errors in the charge of the Court.

Let the judgment of the Court below be affirmed.