Opinion
Rehearing Denied May 10, 1940
Hearing Granted May 25, 1940.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
R.W. Agnew was convicted of causing the false imprisonment of another, and he appeals.
Affirmed. COUNSEL
R.W. Agnew, in pro. per.
Earl Warren, Atty. Gen., and R.S. McLaughlin, Deputy Atty. Gen., for respondent.
OPINION
MOORE, Presiding Justice.
Defendant was accused by information in three counts, namely: (1) assault with a deadly weapon with intent to commit murder; (2) with violation of section 236 of the Penal Code, in causing the false imprisonment of H.J. Henderson; and (3) with violation of said section 236 for causing the false imprisonment of Willis O. Prouty. He was acquitted on counts 1 and 2, was found guilty on count 3 and was sentenced to six months’ imprisonment in the county jail.
He presents his appeal in propria persona. It is difficult to determine what he intends by most of what he has said, but we have gathered that the points upon which he relies are as follows: (1) insufficiency of the evidence to support the verdict; (2) errors of law committed by the court in giving and refusing to give certain instructions; (3) misconduct of the district attorney in the course of the trial; and (4) the verdict was the result of passion and prejudice.
In the month of August, 1938, said Willis O. Prouty was president of the Metlox Manufacturing Company at Manhattan Beach. On the 18th day of said month defendant called at said plant and purchased from said Prouty a number of second-hand transformers and a number of signs, all located in a definite portion of the yard. On a later date defendant called and paid the sum of $15 for the goods purchased and later received a receipt signed by a young lady employee for the $15 "for miscellaneous Neon signs and transformers". About September 13 said Prouty refused defendant permission to enter the grounds because of information he had theretofore received from his foreman that defendant had already removed from the premises a large number of articles that had not been purchased by defendant, it having been reported to him that the defendant had made about eighteen visits to said plant and had removed various signs, transformers, a metal cabinet and two wooden horses. Thereafter defendant brought an action against Prouty for detaining some of the property which he claimed to have purchased. In the trial subsequently had he testified that the reasonable market value of said property was $1,515. On a cross-complaint in the same action Prouty recovered judgment against Agnew in the sum of $566 as the value of the signs and transformers already taken, in addition to those he had paid for and removed.
On July 7, 1939, defendant entered the police station in the city of Manhattan Beach about 10:15 a.m. and inquired for Prouty. Upon advice from the desk sergeant, Patmore, that Prouty was not present, defendant stated that he had telephoned to have Prouty held at said station; that he was going to arrest him for perjury. Having no knowledge of the matters inquired of, Patmore so advised defendant, whereupon defendant stated that he was going over to the Metlox plant to arrest Prouty and asked for an officer to go along to keep the peace. After defendant had departed from the police station, Patmore by broadcast instructed the patrol car under the direction of Officer Smith to meet the "plain-clothes officer" (referring to defendant) who was arresting Prouty and to stand by. Chief of Police Sights arrived at 10:30 as did also Prouty, immediately followed by defendant. Advancing toward Prouty, defendant stated that he was making a citizen’s arrest under section 837 of the Penal Code and that the charge was perjury and that he wanted Prouty delivered to the municipal court in Los Angeles immediately. To this Prouty replied: "Mr. Agnew, I arrest you on the same charge." Thereupon Chief Sights, observing that both men were arrested, instructed his officers to book and fingerprint them. During the booking proceedings defendant stated to the chief of police that he was to deliver Prouty to the district attorney’s office on Wednesday, July 7th, when "they wanted to put him in custody"; that he had definite proof in his brief-case that he could show where Prouty was to be delivered to the district attorney’s office. After Prouty had been discharged following a preliminary hearing he swore out a complaint before the district attorney accusing this defendant with false imprisonment, as subsequently set forth in said count 3 of the information. From his conviction on said count defendant prosecutes this appeal.
I. Defendant contends that there is not sufficient evidence to justify a conviction for false imprisonment of Prouty; that no menace, violence, force or deceit was exercised by him at the time of said arrest; that he did not restrain Prouty or instruct anyone else to do so. But he admits that he "intended to take Prouty to court", although he had no proof of his guilt of perjury. Inasmuch as the law specifically authorized a citizen to make an arrest of one who has committed a felony, it would be a cause of needless disturbance and conflict if every person arrested in the name of the law were to resist because the arrestor did not carry a warrant or other badge of authority. Where a person has the intention and the power to arrest and makes such purpose known to his subject, who submits, the arrest is complete. 5 Cor.Jur. 386. To constitute false imprisonment it is not necessary that there be actual use of force; it is sufficient if words are said or acts are done calculated to induce a reasonable apprehension that force will be used if the person does not submit. 25 Cor.Jur. 454. "Words are sufficient to constitute an imprisonment, if they impose a restraint upon the person, and the party is accordingly restrained; for he is not obliged to incur the risk of personal violence and insult by resisting until actual violence be used." Martin v. Houck, 141 N.C. 317, 54 S.E. 291, 293; 7 L.R.A.,N.S., 576. If a person submit to apparent legal authority he has been imprisoned. Limbeck v. Gerry, 15 Misc. 663, 39 N.Y.S. 95; Harness v. Steele, 159 Ind. 286, 64 N.E. 875. An arrest is effected when the arrestor indicates an intention to take the arrestee into custody and to subject him to the actual control or will of the arrestor. State v. District Court, 70 Mont. 378, 225 P. 1000. An "arrest" may be effected without the application of actual force; it is sufficient if the arrestee is within the power of the arrestor and submits to verbal commands. Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261.
From the foregoing authorities and many others said Prouty was placed under arrest by defendant and was thereby imprisoned. It then became his duty by appropriate judicial proceedings to establish that Prouty had committed a felony. The burden was upon him to show that a felony had been committed by Prouty. Maxwell v. Maxwell, 189 Iowa 7, 177 N.W. 541, 10 A.L.R. 482. "It is not every idle and unreasonable charge which will justify an arrest. An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances, or credible information calculated to produce such suspicion or belief ***, and the authority of a private person to arrest without a warrant is more limited than that of an officer." State v. District Court, supra [ 70 Mont. 378, 225 P. 1002].
Defendant’s contention now that he never intended to take Prouty to court is gratuitous and is no argument upon the facts as presented to the trial court. Under the testimony of said officers and of Prouty the jury was warranted in finding that at the time of defendant’s arrest of Prouty he had no other intention than at once to deliver him to the municipal court or to the district attorney in Los Angeles. Also they were warranted in believing that unless Prouty submitted then to defendant’s arrest serious consequences might have followed.
II. Defendant is aggrieved by reason of certain instructions given and other instructions refused by the court. But he has neglected to set out in his brief any one of the instructions complained of, as required by rule VIII of this court. He contends that the court erred in instructing the jury in effect that where a person, not an officer, assumes to make an arrest without a warrant, the law presumes the arrest to be unlawful and places the burden upon the party making the arrest to show its lawful character. In a prosecution for false imprisonment by a private person the state is required to prove only the fact of the arrest. After proof of such arrest the burden shifts to the defendant to prove that the imprisonment was lawful; that is, "to prove that he was justified in what he did". People v. McGrew, 77 Cal. 570, 20 P. 92, 93; 2 R.C.L. 449; Peters v. Bigelow, 137 Cal.App. 135, 137, 30 P.2d 450.
Defendant contends that he was denied his constitutional right of "equal protection and enforcement of the public laws" by the refusal of his proposed instruction to the effect that if the jury find "that other persons or classes of persons have in fact violated the identical law in question and have not been prosecuted therefor, that would be a good defense if you also find that the law enforcement officers deliberately discriminated against the defendant in this case". The instruction as proposed is a fair statement of the law, but defendant points to no evidence showing any deliberate discriminatory intent on the part of the law enforcement officers to allow others to escape prosecution after violating the law against false imprisonment. And for the same reason the court was warranted in refusing to read defendant’s proposed instruction "that the defendant is entitled to the equal protection and equal enforcement of the public laws, and if you find from the evidence here adduced that the law here concerned has been unequally enforced by the authorities and that the defendant by reason of such unequal enforcement was not equally protected under the said law as other persons standing in the same relationship under the said law as the defendant, then your verdict must be for an acquittal".
Defendant offered an instruction to the effect that he was clothed with the presumption of innocence of the offense charged against him and that he is entitled to the full benefit of that presumption until after hearing all of the evidence the jury is convinced beyond a reasonable doubt that he is guilty. But this instruction was refused under the authorities above cited holding that an arrest by a private person without a warrant is presumptively unlawful. In addition to the foregoing, defendant refers to four other instructions, offered by him and refused by the court, as constituting error. But he neither makes an argument nor cites authority to show why the court’s action was not correct. Furthermore, it is not made certain that said instructions are not covered by those that were given.
III. There is no evidence in the record of misconduct on the part of the district attorney. Defendant states in his brief that the prosecutor, while sitting within four feet of the jury, held a police photograph of defendant in his hand and turned it so that the jury might see. But no objection was made at the time. Neither was there any assignment of error by reason of the act of the district attorney. The only basis for defendant’s contention is an affidavit which he filed four days after judgment had been pronounced against him. This affidavit appears to defendant to be an important document. But legally it is no part of the record The function of this court is merely to determine whether the trial judge has committed error in the conduct of the trial. We do not try cases. The transcript of the reporter’s notes and the transcript prepared by the clerk are the sources available to us from which we may ascertain errors of the trial judge. Where the defendant feels that he is prejudiced by anything said or done in the course of the trial, it is his duty to bring it promptly to the attention of the court in order that it might be rectified and recorded while the court still has jurisdiction of the matter. If he desires to enlarge the record with matters omitted by the reporter, he must proceed to do so by framing a memorandum of the event, known to the law as an "exception" or a "bill of exceptions", and by asking the judge to settle and engross it. If the trial judge refuse the bill, the defendant may petition this court to certify the exception. Code Civ.Proc., sec. 652. These devices are instruments employed by courts and they cannot be dispensed with because a defendant prefers to act as his own advocate.
It is likewise true that if the defendant had objections to questions asked by the district attorney in the course of the trial, which he deemed to be prejudicial, it was his duty then and there to assign the conduct as error and ask the court to instruct the jury to disregard it. People v. Hanks, Cal.App., 95 P.2d 478; People v. King, 13 Cal.2d 521, 90 P.2d 291; People v. Mundt, 31 Cal.App.2d 685, 88 P.2d 767. No rule is better established than that if misconduct occur in the course of a trial, no notice of it can be taken on appeal unless at the time of the occurrence the defendant assign it as prejudicial error and request the court to instruct the jury to disregard it. People v. Dozier, Cal.App., 94 P.2d 598; People v. Payton, __ Cal.App. __, 96 P.2d 991.
IV. Defendant contends that the verdict was the result of passion and prejudice. We find no support for this claim. It is true that men err judicially as well as in extrajudicial behavior. But on appeal the misconduct of the jury or the error of the court cannot be reviewed unless the act, of which complaint is made, was committed over the objection or protest of the appellant or unless the trial court has refused to attempt to correct the alleged error at the time. A jury is presumed to have disregarded evidence which the court has stricken, and it is presumed to have obeyed the direction of the court not to be controlled by prejudice or sympathy or other impulses governed by the emotions. Unless specific and novel behavior on the part of the jury is pointed out to show that it was not guided by orderly processes, it must be assumed that their verdict was the result of reason and not of impulse. This defendant, without a warrant, arrested and thereby imprisoned a citizen on the claim that the latter had committed a heinous felony. A court of competent jurisdiction exonerated that citizen. No act is designated as having been prompted by passion or prejudice on the part of the jury who convicted defendant.
The judgment is affirmed.
We concur: WOOD, J.; McCOMB, J.