Yancey v. Fidelity & Casualty Co. of NY

Nichols, J.

The general grounds of the motion for new trial will be dealt with first.

The action was brought against the surety on the sheriff’s official bond for the alleged illegal arrest of the now deceased J. W. Yancey, it being alleged that the said J. W. Yancey died while incarcerated in the county jail after the alleged illegal arrest. The uncontradicted evidence showed that prior to 7:30 p.m. on the date of the alleged illegal arrest the sheriff procured a warrant for the arrest of the deceased which was not to be used unless the deceased should violate the law on the night of the arrest (there having been no known violation by the deceased prior to the issuance of the warrant), that later the deceased did violate the “liquor laws” by selling “moonshine” to an “undercover agent,” that no arrest was made at the time of the violation, that after this violation the sheriff and his “aides” (certain Federal and State agents), made a “roundup” of other known violators for whose arrests warrants had been obtained, and then returned to the home of the deceased where the “undercover agent” sought to obtain another violation by the deceased, but was unsuccessful because the deceased was sold out, and that the arrest was then made by the sheriff and the “undercover agent,” not under the warrant, but because the alleged violation took place in the presence of the “undercover agent” some two and one-half or three hours earlier.

The defendant relies, not on any authority to make an arrest for the alleged misdemeanor under a warrant, but on the authority to make an arrest for a misdemeanor committed in the presence of the arresting officer.

The true rule, as shown in Reed v. State, 195 Ga. 842, 849 (25 S. E. 2d 692), is: “The rule is that an officer has a right to arrest for a crime committed in his presence; but there is an exception to this rule, which provides that the rule' does not apply if the officer does not act on the occasion he sees the crime committed, but delays and seeks to make the arrest on a subsequent occasion after he has had ample time and opportunity to procure a warrant. This rule will be found in the Code, § 27-207, and decisions of this court. Graham v. State, 143 Ga. 440 (85 S. E. 328, Ann. Cas. 1917A, 595); Glaze v. State, supra, [156 Ga. 807, 120 S. E. 530]; Faulkner v. State, 166 Ga. 645 (144 S. E. 193), and cit. Cases where the exception to this rule has been applied are Porter v. State, supra, [124 Ga. 297, 52 S. E. 283, 2 L. R. A. (NS) 730]; Yates v. State, 127 Ga. 813 (56 S. E. 1017, 9 Ann. Cas. 620), yet each of these cases recognizes the rule as above stated, but applies the exception because the arrest was attempted subsequently to the time the crime was committed, and after there had been sufficient opportunity to procure a warrant. We may add further, that where a crime is committed in the presence of an officer, it is not only his right then and there to arrest without a warrant, but it is his duty to do so. Earl v. State, 124 Ga. 28 (52 S. E. 78).”

Therefore, the question presented is: Did the sheriff and the “undercover agent,” who made the arrest in the present case, after leaving the! home of the deceased after he had allegedly sold the “moonshine” in violation of the law, have ample time and opportunity to procure a legal warrant before the arrest was made?

The evidence discloses that the arresting officers were engaged in a county-wide “roundup” of “liquor law violators” during the interval from the time the alleged illegal sale was made to the time the arrest was made, and that while being so engaged there was no time left in which to obtain a warrant for the arrest of the deceased based on the violation which occurred when the deceased sold “moonshine” to the “undercover agent.”

It cannot be said that the sheriff and his aides were not zealously engaged in their duties during the time that they were arresting those persons who were allegedly violating the “liquor laws” of this State. They were helping to rid Gwinnett County of those who were allegedly selling “moonshine.” However, was this enough to authorize the sheriff to circumvent the right of the deceased to a lawful arrest under a warrant where he was not arrested at the time he allegedly committed the misdemeanor in the presence of an officer? “The law is very jealous of the liberty of the citizen. In proportion as the offense is less serious, the greater the formality prescribed for the exercise of the power to deprive the citizen of his liberty. If the offense be a felony, an arrest may be made by a private person or an officer, without a warrant, if the citizen suspected of the felony is endeavoring to escape; but if the offense be a misdemeanor, then before even an officer will be authorized to arrest, he must bring himself within the exception provided in the Penal Code, § 896, [Code of 1933, § 27-207].” Porter v. State, 124 Ga. 297, 302 (52 S. E. 283, 2 L. R. A. (NS) 730).

The defendant presented evidence to show that the sheriff and his “aides” were busy rounding up other violators during the time that intervened between the alleged violation by the deceased and his arrest, however, this is of no concern in deciding the case. These other violators were not connected with the deceased, and although, as contended by the defendant, the other violators might have taken their leave had the deceased been arrested at the time he made the alleged sale, the fact that other persons might escape arrest is of no concern to an accused who has no connection with the other persons. He is entitled to the same protection of the law as are other persons. The “undercover agent” was authorized to arrest on the spot, but neither he, nor the sheriff, was authorized to arrest the now deceased J. W. Yancey without a warrant after they had had ample time and opportunity to procure a warrant. The evidence disclosed •that the sheriff and his “aides” had turned aside from any pursuit of the deceased and for two and one-half or three hours had been engaged in duties foreign to such pursuit, that during this time they had passed near the homes of two or more magistrates from whom a warrant for the arrest of the deceased could have been obtained, but that no effort was made to obtain a warrant for his arrest. Under the evidence neither the sheriff, on whose bond the present action was brought, nor the “undercover agent”, was authorized to arrest the deceased at the time he was arrested without a warrant. Accordingly, the grant of a new trial is demanded on the general grounds.

Special grounds 1 and 2 of the amendment to the motion for new trial complain of the admission of evidence, over the plaintiff’s objection, with reference to a roundup' being made of various persons suspected of selling “moonshine” and the effect of arresting the first violator before securing evidence of violations by the other suspected violators.

It is unnecessary to determine if the evidence complained of was admissible or inadmissible because as was said in Healen v. Powell, 91 Ga. App. 787 (2) (87 S. E. 2d 332): “Error in improperly admitting evidence is not ground for reversal where the same evidence is subsequently admitted without objection.” In the present case the plaintiff objected to the admission of such evidence when I. W. Davis, the “undercover agent”, was testifying, but no objection was made when Sheriff Pittard testified to substantially the same facts. See also G. Bernd Company v. Rahn, 94 Ga. App. 713, 722 (96 S. E. 2d 185).

Special ground 3 complains that the trial court erred in refusing to permit the plaintiff to cross-examine the Sheriff of Gwinnett County, Georgia, as to what he swore to in connection with taking out the warrant for the arrest of the deceased, such warrant having been issued prior to the time the deceased violated the law for which violation he was arrested.

The court properly ruled that the warrant itself was the best evidence as to what the sheriff swore to in having the warrant issued.

Special ground 4 complains that the trial court erred in refusing to permit the plaintiff toi cross-examine the Sheriff of Gwinnett County, Georgia, as to what the magistrate knew about the issuance of the warrant.

Such evidence would have been hearsay, and although the plaintiff could have interrogated the witness as to what he told the magistrate, the evidence sought was inadmissible.

Special ground 5 complains that the trial court erred in admitting in evidence a certified copy of the warrant referred to in the two preceding divisions of this opinion. The objection was that such warrant was void. There was evidence introduced as to the contents of the warrant which evidence was introduced without objection. Under the authority cited in division 2 of this opinion it was not reversible error to admit this document in evidence.

This special ground of the motion also makes certain contentions that were not made on the trial as to why this document was inadmissible. Such contentions present no question for decision. Laney v. Barr, 61 Ga. App. 145, 146 (6 S. E. 2d 99).

Special ground 7 complains of the court’s charge with reference to the authority of the sheriff to. arrest without a warrant if there would be a failure of justice by failing to make such arrest.

As was said in dealing with the general grounds, the evidence presented on the trial demanded a verdict for the plaintiff, therefore, it necessarily follows that there was no evidence to support this charge.

The remaining special grounds complain of the court’s charge with reference to the warrant which was introduced in evidence. The evidence demanded a finding that this arrest was not made on the basis of the warrant, and the defendant did not contend otherwise, therefore under the evidence presented such charge was necessarily error.

The defendant, in his brief, abandoned the contention that the trial court was without jurisdiction to try the case.

In the cross-bill of exceptions the only remaining contention of the defendant is that the trial court erred in sustaining the plaintiff’s objection to the admission in evidence of 17 warrants issued prior to the time of the arrest of the deceased for which the present action is brought.

The contention, of the plaintiff is that to admit these warrants in evidence would be to place the character of the deceased in issue, while the contention of the defendant is that they were relevant evidence to refute the allegations made in the plaintiff’s petition that: “14. As the direct consequence of the illegal arrest, false imprisonment and illegal detention committed by the aforesaid sheriff, as aforesaid, the said J. W. Yancey died, unattended, while so illegally detained and falsely imprisoned in the Gwinnett County Jail at Lawrenceville, Georgia, on January 15, 1956.” And to refute the evidence adduced on the trial when Dr. Ezzard, a witness for the defendant, was being cross-examined by the plaintiff that tended to prove that if a person is arrested and placed in jail his blood pressure will increase from anxiety and nervousness and if he has a pre-existing heart condition of certain types such increase in blood pressure could be more than the heart could stand and cause the fatal attack.

While it is true that the character of the deceased was not in issue, and that evidence as to his character, either good or bad, would ordinarily not be proper in a case like the one sub judice, however, since it was alleged that the arrest and imprisonment led directly to the death of J. W. Yancey, and the above evidence was presented by the plaintiff, and in view of evidence elicited from the same witness on redirect examination that tended to show that if a person had been arrested many times before it wouldn’t tend to increase his blood pressure and would not tend to bring on a heart attack, the warrants showing prior arrests and convictions of the deceased should have been admitted in evidence to refute these claims made by the plaintiff that the arrest led directly to the death of J. W. Yancey.

Judgments reversed on both the main bill and the cross-bill of exceptions.

Felton, C. J., Gardner, P. J., Townsend, and Car-lisle, JJ., concur. Quillian, J., dissents.