Dent Dent and W.J. Hatten, for appellant.
If the arrest of Mrs. Kelley had been legal, under Section 2473, Code 1942, it became and was the duty of Yearwood to carry her before the proper officer without unnecessary delay for examination. In 5 C.J., page 430, it is said: "It is the duty of an officer after making an arrest, either with or without warrant, to take the prisoner, within a reasonable time, before a justice of the peace, magistrate, or other proper judicial officer having
jurisdiction, in order that he may be examined and held, or dealt with as the case requires. It is sometimes said that this must be done immediately, or forthwith, or without delay. These requirements mean no more than that it must be done promptly and with a reasonable time under all the circumstances." And see Notes 38 and 52 thereunder.
It appears to be mandatory that the arresting officer "shall take the offender before the proper officer without unnecessary delay for examination of his case," because Section 1249, Code of 1930, being Section 2492, Code of 1942, sets out what the proper officer must do.
In 25 C.J., page 491, it is said: "Duty to take before magistrate. One making an arrest may be liable in an action for false imprisonment where he fails to take the person arrested before the officer designated in the warrant, or, if the arrest is made without warrant, to the nearest committing magistrate, or other officer designated by law. Failure to perform this duty may impose liability on the arresting party as a trespasser ab initio, even if the arrest is made in entire good faith." This doctrine is re-announced in 35 C.J.S., section 30, page 545, and see 35 C.J.S., under section 31, page 546.
The courts have held that the nearest committing magistrate or other officer designated by law to be the proper officer as required by section 2473, Code of 1942, before whom to take the offender when arrested without a warrant. 25 C.J., Page 491. It appears that the most accessible magistrate, having jurisdiction, and not the nearest magistrate is the one to whom the offender should be taken for examination as contemplated by our statute. And the New York Court of Appeals in 76 N.Y.S. 425, where a statute in that regard is similar to the Mississippi statute gives the reason for the rule, as follows: "`If the rule were otherwise it might result in compounding offenses of this kind, and if the person is arraigned and discharged, that establishes his innocence, and if held, it makes effective the justification of the
conduct of the person making the arrest without a warrant, and shows probable cause unmistakably.'" And see Anderson v. Beck et al., 8 So. 167, 64 Miss. 113 ; Sheffield v. Reese, Sheriff, 28 So.2d 745 .
It will be remembered that section 8082, Code of 1942, prohibited Yearwood, as patrolman, from taking a cash appearance bond, or any other bond, but such bonds "shall be approved by constitutional peace officers in accordance with law." As Yearwood was not a constitutional peace officer, it makes his duty more imperative to carry an offender, without unnecessary delay, before the proper officer for examination, which could be either for trial, an opportunity to make bond, or plead guilty, and for the peace officer to determine the grade of the offense and fix a bond.
The only authority for the removal of prisoners from one county to another is set out in sections 2499-2503, inclusive, Code of 1942. These sections are substantially the same as when the case of Ex Parte Buck, 104 Miss. 661 , 61 So. 651, was decided in 1913. In this case it was held that the sheriff had no power to remove a county prisoner to the jail of another county, even for laudable motives.
While we have no direct Mississippi authority on this question except this Buck case, we do find in footnote 64 (b), 25 C.J., page 491, where it is said: "Carrying outside of county of arrest may impose liability. Francisco v. State, 24 N.J.L. 30 ; Green v. Rumsey, 2 Wend. (N.Y.) 611."
If the patrolman could arrest appellant for a breach of the peace, or any other crime committed in his presence in Lamar County, and had legal authority to carry her to the county jailer at Hattiesburg, in Forrest County, and have her placed in jail, he could have carried her to Jackson, Gulfport, or any other county, which, in our opinion, would be contrary to the purpose of section 2473, Code of 1942, and the state constitution with to bail and a speedy and public trial. Certainly no officer out of the
county would have a legal right to fix bond or do anything else agreeable to our criminal procedure, venue and jurisdiction.
This appears to be the doctrine announced by the Supreme Court of the United States, decided June 1, 1942, in the case of Ward v. State of Texas, 316 U.S. 547 , 62 S.Ct. 1139. The Texas statute, on this question, being similar to the Mississippi statutes; Justice Byrnes being the organ of the court. The syllabus of the court is: "Where accused was arrested without a warrant, failure of officers to take accused to the nearest magistrate as provided by Texas statute was improper.
"Action of officers having custody of accused, in removing accused from Titus county, Texas, allegedly because of fear of mob violence, without making application to a magistrate for committal of accused to a jail in another county as provided by state law was improper." See 35 C.J.S., paragraph 30, page 545, and the authorities there cited. We have been unable to find any authority contrary to our position on the undisputed facts as shown by the record in the case at bar.
In 35 C.J.S., paragraph 35, page 549, it is said: "If an arrest without process is made on one ground, on which it subsequently develops it cannot be sustained, the arrest cannot later be justified on the theory that another ground existed at the time of the arrest, even though such offense is intimately connected in time and place."
In the case of Moran v. City of Beckley, for use of Bowen (two cases), 67 F.2d 161 , Circuit Court of Appeals, Fourth Circuit, is where the police arrested these two plaintiffs without a warrant for unlawfully speeding through the City of Beckley and placed them in jail for driving two Plymouth cars through the City of Beckley with only Virginia dealer's plates thereon. The court held that while the arrest for speeding was lawful, they were not put in jail for speeding, and the arrest for lack of proper license tags was unlawful and the lawful arrest of speeding could not save the police from liability for
false imprisonment for failure to have proper car tags. And the court among other things, said: "An arrest for one offense cannot be justified by proof of another, even though intimately connected in time and place."
The respectable authority of McLean v. State of Mississippi ex rel. Roy, 96 F.2d 741 , Fifth Circuit Court of Appeals, where the sheriff went out of his county, in speaking of section 1234, Code of 1930, being the same as this section 2477, Code of 1942, among other things the court said: "We find no duty or authority given outside his county except the pursuit of an escaping offender as above set forth." In the case of Shirley v. State, 100 Miss. 799 , 57 So. 221, the deputy sheriff was out of his county with a warrant for arrest, and the court held he was rightly indicted and convicted for carrying a concealed weapon, as he was not in pursuit of an escaping offender located in another county where he had no authority.
To permit the patrolman to carry a party out of the county and jailed in another as was done in this case, in our opinion, would be violative of the most sacred sections of the Constitution of the State of Mississippi, viz.: 27, 28, 29 and probably section 138.
The court would necessarily have to hold that the patrolman had the lawful custody of appellant, on his route, passing through Forrest County, and placed her in jail for safekeeping, to make that part of the statute quoted by appellees, applicable and justify his acts in carrying her out of Lamar County and placing her in jail in Forrest County. The real reason given by the patrolman was not that he was "on his route," but that the type of jail in Sumrall was not sufficient, and Hattiesburg had the most convenient available, and the nearest place "where there were sufficient facilities to protect a female person in a drunken condition." Easily and sentimentally said, admittedly not placed in jail for safekeeping.
Ben Stevens, R.L. Calhoun and Heidelberg Roberts, for appellees.
We thoroughly recognize the fact that Patrolman Yearwood could not approve appearance bond. He is prohibited therefrom through section 8082 of the Mississippi Code of 1942. The bail bond must be approved by constitutional peace officers and Yearwood was not such an officer. He placed Mrs. Kelley in jail as he must do, and when she was sober and the bail bond was submitted, she was released thereon. She was properly arrested because she committed the offense in the presence of the officer. She was placed in the most convenient and the nearest suitable jail for womankind in the area, and she was released on bond after she was sober and when bail bond was presented to the "constitutional" peace officer for approval.
Jail of Forrest County, Mississippi, was appropriate for use by Highway Patrolman.
Defensively, we contend that our opposition is in error in arguing that Mrs. Kelley could not be placed in jail out of Lamar County after arrest. Sections 2499 and 2503 of the Mississippi Code of 1942 provide for removal of prisoners to jail of another county, but these sections do not contemplate a situation where an arrest is made and no suitable jail is available for detaining the prisoner. The case of Ex parte Buck, 104 Miss. 661 , 61 So. 651, held that the sheriff had no power to remove a county prisoner to the jail of another county. In the Buck case a prisoner had been tried and convicted and sentenced to serve time in the county jail, and the sheriff removed the prisoner to an adjoining county to keep him from illegally directing the sale of intoxicating liquors from the local jail. The case now before the court is not one where a prisoner was removed from his place of confinement into the custody of another officer of another county. The contentions made that the prisoner might have been carried to Jackson or Gulfport, Mississippi,
just as well as to Hattiesburg, Mississippi, are not applicable. It was nearer to the Hattiesburg, Mississippi jail than it was to the Collins, Mississippi, jail or to the Purvis, Mississippi, jail. To get to Purvis, Mississippi, the officer would have passed up the Hattiesburg jail. Every instruction requested for and granted to the defendants, and practically all of the instructions requested for the plaintiff, left to the jury for determination the reasonableness and the propriety of that done by the arresting officer. The instruction appearing on page 47 leaves to the jury the question of whether or not Mrs. Kelley was unnecessarily detained or detained for an unnecessary time. Throughout the instructions, throughout the testimony, and in fact, throughout the entire record, it is made clear that the highway patrolman did the only thing left open for him to do. He carried the woman to the nearest suitable jail for the care and protection of Mrs. Kelley.
Our distinguished opposition refers to the case of Ward v. State of Texas, 116 U.S. 547 , 86 Law Ed. 1663. That case arose in the State of Texas. Ward was arrested without a warrant by a sheriff from another county from the one in which the arrest was made. The defendant was not taken before a magistrate, but he was moved more than one hundred miles away, and for three days he was driven about from county to county, and during this time he was questioned continuously by various officers who told him of threats of mob violence, when there was little probability of mob violence as claimed by the officers to justify the removal of the defendant outside the county. Under that state of facts, the Supreme Court of the United States, speaking through Mr. Justice Byrnes, concluded that this conduct was improper, and for that reason the cause was reversed for further proceedings.
Appellants claim that one arrested for public drunkenness should not be charged with drunken driving.
The above is not the exact heading used by appellant, but the heading raises this subject. The first text law
furnished by the opposition on this point is from 35 C.J.S., paragraph 35, page 549, and the quotation justifies in a limited measure the heading that "Ordinarily a person making an arrest on one ground cannot justify the arrest on another ground." This does not mean, however, that an arrest made on one ground will not justify the charge of a greater crime. State differently, one may be arrested for assault and battery with intent to kill. After the arrest the person assaulted may die, and the charge then may be murder. More good could come to the public by making charge of drunken driving than of simple public drunkenness. The highway patrolman had the right to arrest, and he had the right, on information and belief, to charge the person to be charged with a greater crime than that which caused or made necessary the arrest.
The only other authority of the opposition on this proposition is the Federal case of Moran et al. v. City of Beckley for Use of Bowen, 67 F.2d 161 . That case is not authority for the contentions of the opposition. The discussion by the court grew out of an instruction which was given, and which involved the laws of the State of West Virginia. The court only held that the instruction was proper, and that "An arrest for one offense cannot be justified by proof of another, even though intimately connected in time and place." The court further stated that even if the instruction were wrong, still it would not have been prejudicial because the jury decided the question adverse thereto. We are confident that our opposition will not seriously contend further that this case constitutes authority for theory sought to be presented that recovery should be permitted simply because Mrs. Kelley was arrested while she was drunk but was never tried therefor. In fact, the case of Thompson et al. v. State, 153 Miss. 593 , 121 So. 175, is authority against the contention made. Thompson was arrested for being drunk in a public place. He was charged with unlawful possession of intoxicating liquors, and tried
and convicted and sentenced, and on appeal the court upheld the judgment, and took the position that if there was a lawful arrest the findings of the officer thereafter were not illegal, and the principle of illegal search and seizure could not be applied.
Right of Yearwood to make arrest. The arrest of Mrs. Kelley was made on Mississippi Highway Number 44, east of Sumrall, Mississippi. Highway Number 44 is paved from Sumrall in an easterly direction to United States Highway Number 49, and the two roads intersect just south of the Bouie River crossing of said United States Highway, and approximately nine miles north of Hattiesburg, Mississippi. All of the witnesses for the defendants, as hereinbefore pointed out, testified that Mrs. Kelley was at the time drunk.
Some nice distinctions have been made between duties and obligations of highway patrolmen as compared with other law enforcement officers, and in one section of brief of appellant it is apparently argued that a highway patrolman could not make the arrest in this case because public drunkenness did not constitute breach of the peace. Nearly all of the authorities refer to the term "breach of the peace" as a generic term to include various developments which might be offensive to others present. Most authorities hold that any violation of public order is a breach of the peace, and that public drunkenness is such a violation. A splendid general statement on this subject is furnished by the Supreme Court of Michigan, as follows: "By `peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members. This is the natural right of all persons in political societies, and any violation of that right is a breach of the peace. Actual personal violence is not an essential element of the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger from the wicked language and conduct of a guilty party, not only destructive of the peace
of citizens, but of public morals, without the commission of the offense." Davis v. Burgess, 54 Mich. 514 , 20 N.W. 540, 52 Am. Rep. 828.
Right of Yearwood to carry arrested party to Forrest County, Mississippi, jail. Appellant seems to contend that she should have been carried to the Lamar County, Mississippi, jail. The only paved road available from where the accident occurred to Purvis, where the Lamar County Jail is located, is on Mississippi Highway Number 44 to United States Highway Number 49, a distance of approximately eight miles, and then south to Hattiesburg, Mississippi, on United States Highway Number 49, a distance of approximately nine miles, and then in a southwesterly direction on United States Highway Number 11 approximately fifteen miles, for a total distance of travel of thirty-two miles. The highway patrolman could have traveled west to Sumrall, and then gone south on a graveled road to Oloh, and then west on paved Highway Number 24 between Hattiesburg and Columbia, Mississippi, for about ten miles, and then south on a graveled road to Purvis, Mississippi. The highway patrolman did what any reasonable person would have done, in keeping on the paved road and coming to Hattiesburg, Mississippi. The highway patrolman recognized that when he made the arrest it was his duty to take care of the party to the best of his ability. He recognized that in bringing Mrs. Kelley to the Hattiesburg, Mississippi, jail he was bringing her to the most convenient and cleanest jail. He testified that the arrest was made on a Sunday afternoon. He also testified that he did not make affidavit against Mrs. Kelley for being drunk until Monday, following the arrest on Sunday. He also recognized that the justice of the peace, named King, of Sumrall, Mississippi, was in his office only on Saturday, and arrangements were made with the Forrest County, Mississippi, jailer to make the bond returnable before Justice of the Peace King on the Saturday following.
These facts disclose the plan outlined for handling these prisoners by the highway patrolman.