Opinion
Opinion filed December 8, 1931.
1. — Evidence — Reputation of Plaintiff. Ordinarily in civil actions the character and reputation of plaintiff is not admissible, but where it is put in issue by the pleadings and the evidence, it is relevant and material.
2. — Searches and Seizures — Pleading — Reputation of Plaintiff In Issue — Evidence — Relevancy. In an action for damages for illegal search of person, while the petition did not allege in specific terms that plaintiff's reputation was injured, it did allege that he was "disgraced," which, practically amounted to the same thing, thereby putting plaintiff's reputation in issue and making evidence of his reputation relevant and material.
3. — Evidence — Illegal Search of Person — Plaintiff's Reputation Put In Issue by Defendant's Evidence — Good Faith. In an action for damages for illegal search of person, evidence by defendant that plaintiff was carrying a pistol the day before put plaintiff's character in issue permitting him to prove his good character to rebut the claim of good faith.
Appeal from the Circuit Court of Madison County. — Hon. B.H. Boyer, Judge.
REVERSED AND REMANDED.
Davis Damron for appellant.
(1) An officer may arrest, without a warrant, one whom he may have reasonable and probable grounds to suspect of having committed a felony. 35 Cyc. 878; Wehmeyer v. Mulvihill, 150 Mo. App. 197. (2) The reasonable and probable grounds which will justify the arrest without a warrant must be such as would actuate a reasonable man to act in good faith. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person's guilt, based either upon facts or circumstances within his own knowledge, or upon information imparted to him by a reliable and credible third party. 35 Cyc. 887; Sec. 55, pp. 43-44, Kelley's Criminal Law Procedure (2 Ed.). (3) The mere suspicion of an officer will not justify him in arresting an innocent person without a warrant, unless a direct charge has been made by a reliable and credible third party. Sec. 55, pp. 43-44, Kelley's Criminal Law Procedure (2 Ed.); Regan v. Harkey, 87 S.W. 1164 (Tex.). (4) "The officer is not necessarily justified because he believes an offense has been committed, but he is always justified if an offense in fact has been committed, whether he had reason to believe it or not. If a crime has not been committed, then he can only be justified by the existence of reasonable ground to believe that it has been committed." State v. Williams, 14 S.W.2d 434. (5) The officer can have no reasonable or probable cause to arrest without a warrant for a felony, if at the time he is in possession of facts which disprove the crime. Wehmeyer v. Mulvihill, 150 Mo. App. 197. (6) Where an arrest has been made without either a warrant and without reasonable and probable grounds of suspicion that an offense has been committed, the only justification which may be shown in defense is that the arrested party was actually guilty of a felony. Wehmeyer v. Mulvihill, 150 Mo. App. 197. (7) Unless the officer first makes a valid and lawful arrest, he is without authority to search for a concealed pistol and is liable in damages. Sec. 11, Art. 2, Missouri Constitution; 35 Cyc. 1275-6; Regan v. Harkey, 87 S.W. 1164; See 3 A.L.R. Ann. 1517; Re Swan, 150 U.S. 637; State v. Gartland, 263 S.W. 165. (8) The court should disregard testimony of a witness when it conflicts with his other testimony and with physical facts. Davidson v. R.R., 164 Mo. App. 701; Wray v. E.L. W.P. Co., 68 Mo. App. 380; Kibble v. Q.O. K.C.R.R., 285 Mo. 603. (9) The court should set aside verdict and grant new trial if there is no substantial evidence in the record to support verdict, and verdict cannot be based upon mere suspicion or speculation. Hamilton v. St. Louis S.F. Ry. Co., 300 S.W. 787; Clark v. Granby M. S. Co., 183 S.W. 1089. (10) A guess is not substantial evidence. O'Neil Imp. M.F.G. Co. v. Gordon, 269 S.W. 636; Hunter v. Helsley, 98 Mo. App. 616. (11) Statements made by party as a witness, which are against his own interest, must be taken as true. Feary v. Metropolitan St. Ry. Co., 162 Mo. 75. (12) Reversible error to give instructions in a case which are broader than the issues made by the pleadings and evidence. Fiorona v. Ry. Co., 260 S.W. l.c. 124; Bank v. Curtis, 260 S.W. l.c. 816; Mansur v. Botts, 80 Mo. l.c. 558; State ex rel. v. Ellison, 270 Mo. l.c. 653. (13) Reversible error to give instructions which are confusing and conflicting and which constitute a misdirection to the jury. Trailer v. White, 185 Mo. App. 325; Finley v. Continental Ins. Co., 299 S.W. 1107; Ward v. First Nat'l Bank of Dexter, 27 S.W.2d 1066. (14) Reversible error to instruct on proposition which is not supported by pleading or proof. Feddeck v. Carr Co., 125 Mo. App. 24; State ex rel. v. Dickman, 124 Mo. App. 653. (15) If instruction contains correct declaration of law, it is reversible error for the court to refuse to give it. Ward v. First Nat'l Bank of Dexter, 27 S.W.2d 1066. (16) The good character and reputation of plaintiff was admissible to disprove reasonable and probable cause for the alleged arrest and the search, and to show malice on the part of defendant: also to fix the measure of damages. 35 Cyc. 1276-1277; 16 Cyc. 1264-1265; Mark v. Merz. 53 Ill. App. 458; Williams v. Eckhoff, 185 Mo. App. 234. (17) Reversible error to exclude material evidence. (18) Appellate courts may vacate judgments as opposed to weight of evidence in those cases where the verdict of a jury is so strongly opposed to all reasonable probabilities as to be the manifest result of passion or prejudice. Alder v. Wagner, 47 Mo. App. 25; Lovell v. Davis, 52 Mo. App. 342.
John H. Keith for respondent.
(1) The court did not err in refusing to permit plaintiff to prove that on the date of the search he sustained a good reputation in the community for being an upright, law-abiding citizen, inasmuch as it had not been assailed. Dudley v. McCluer, 65 Mo. 241; Rogers v. Troost's Adm'r, 51 Mo. 470; 22 C.J. 470; Bank v. Richmond, 235 Mo. l.c. 542; Deubler v. United Rys. Co., 195 Mo. App. 658. (2) There was abundant evidence to warrant the court in submitting the case to the jury on the evidence offered by defendant. The weight of the evidence was a question for the jury, and this court will not interfere with the verdict. This rule is elementary and needs no citation of authorities in support thereof. (3) There was no error committed by the court in giving the instructions on its own behalf, or in modifying instructions offered by plaintiff. Neither did the court err in giving instructions offered by defendant, as they properly declared the law of the case and the evidence upon which they were based was amply sufficient to warrant the court in giving them. See cases cited under other paragraphs and paragraph 4. (4) If a peace officer arrest a person without a warrant he is not bound to show in his justification a felony actually committed, to render the arrest lawful: but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable grounds to believe that such person has been guilty of a felony or is committing a felony, the arrest is not unlawful. State v. Underwood, 75 Mo. l.c. 237; State v. Spaugh, 200 Mo. l.c. 596; State v. Whitely, 283 S.W. l.c. 320; State v. Hall, 312 Mo. l.c. 433; State v. Padgett, 316 Mo. l.c. 183; State v. McNeece, 295 S.W. 737, 317 Mo. 304; State v. Bailey, 8 S.W.2d 57; State v. Williams, 14 S.W.2d 434; State v. Evans, 161 Mo. 95; 5 C.J. 399, 416, 417; State v. Grant, 76 Mo. 236; State v. Roberts, 15 Mo. 28; Wehmeyer v. Mulvihill, 150 Mo. App. 197; 5 C.J. 526. (5) A peace officer may make an arrest without a warrant whenever he has reasonable belief, based upon the facts and circumstances presently existing that a felony is being committed, even though such belief may afterwards turn out to be groundless. Likewise, no warrant is necessary to authorize arrest upon reasonable suspicion a person is committing or has committed a felony. State v. McNeece, 317 Mo. 304, and cases cited under paragraph 4. (6) A reasonable ground of suspicion has been defined to be: "A deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood, so far as to produce belief." If a person is walking the streets at night, and the indications are that he has committed a felony, watchmen and beadles have authority at the common law to arrest and detain him in prison for examination, though the proof of an actual felony committed may be wanting. All the precedents are to the effect that the officer is presumed to have acted by right and not by wrong. State v. Grant, 79 Mo. l.c. 134, 135; Smith v. Edge, 52 Pa. St. l.c. 422; State v. Duncan, 116 Mo. l.c. 312; State v. Cushenberry, 157 Mo. l.c. 181.
This case originated in the Circuit Court of Madison County, Missouri. Plaintiff is a newspaper editor, and defendant is the sheriff of Madison County.
The petition alleges that on the 15th day of November, 1929, the defendant maliciously, and with intent to outrage, humiliate, and disgrace plaintiff, did by force seize, restrain, and search the person of plaintiff, without reasonable cause, and without right or authority so to do, and against the will of plaintiff; that by reason of said seizure, restraint, and search plaintiff was greatly "outraged, humiliated, and disgraced." Plaintiff asked $1000 actual and $1000 punitive damages.
The answer of defendant alleges that on the date mentioned he was the duly elected, acting, and authorized sheriff of Madison County. Missouri, and that on said date while acting as such sheriff, in the exercise of the duties of his office, and without malice, and on reasonable and probable cause, in good faith, and on facts and reliable information given him by other persons, that the plaintiff was committing a felony by carrying a concealed weapon, to-wit, a pistol, he did restrain and search the plaintiff, believing at the time, from information and facts received from other credible persons, that plaintiff was committing the offense of carrying a concealed weapon, which said offense was and is a felony.
Upon a trial of the issues, there was a verdict and judgment for defendant, and plaintiff has appealed.
In our view of this case, it is unnecessary to detail the evidence introduced at great length.
Plaintiff testified that he was standing on a street in the City of Fredericktown, talking to a friend and acquaintance, when defendant came up to him in an angry excited manner, grabbed him, and searched him, and when plaintiff asked him what he was doing and what his authority for so doing was he pulled back his coat and showed him his gun and stated that was his authority. When he asked defendant what he was going to do he said. "I am going to search you." After this took place defendant walked away, and no weapon of any kind was found upon plaintiff. This took place on a public street in the City of Fredericktown, where the plaintiff lived and had lived for many years. Plaintiff was corroborated by two witnesses who were present and saw what took place.
The defendant testified that he arrested plaintiff: that when he walked up to him he told plaintiff to consider himself under arrest, and then searched him. He did this because he had been informed by one of his deputies and a friend, as well as the prosecuting attorney, that plaintiff was acting suspicious and should be watched, and one witness told the defendant that he had seen the plaintiff with a gun or pistol in his pocket the day before.
It appears that one of defendant's deputies had had an alteration with plaintiff, and assaulted him a day or two prior to this event. All the testimony offered on the part of the defendant tended to show that he had reasonable cause to suspect that plaintiff had a pistol.
In rebuttal, plaintiff offered to show by four witnesses that he sustained a good reputation for being a law-abiding, moral, upright citizen. This evidence was rejected by the court, and its rejection is urged here as grounds for reversal of this case.
We are of the opinion that the learned trial judge was in error when he refused to permit plaintiff to show his good reputation, under the particular facts of this case. We appreciate the fact that ordinarily in civil actions the character and reputation of plaintiff is not admissible, but where it is put in issue by the pleadings and the evidence, it is relevant and very material. Of course, if plaintiff had merely alleged damages generally as a result of the wrong, then the evidence as to his character and reputation would be inadmissible; but the petition in this case alleges that he was outraged, humiliated, and disgraced. It is true that the petition does not allege in specific terms that his reputation was injured, but it does allege that he was "disgraced." which, we think practically amounts to the same thing, Plaintiff's reputation was brought in issue by the pleadings, as well as the evidence adduced on the part of the defendant. Defendant pleaded that he acted in good faith and had reasonable grounds to believe that plaintiff was committing a felony by carrying a concealed weapon. He then introduced evidence tending to show that his reasons were well founded, and that plaintiff was carrying a pistol the day before. This brought plaintiff's character in issue, and he could prove his good character to rebut the claim of good faith. [Milton v. Dairy Co., 188 Mo. App. 278, l.c. 286, 175 S.W. 105.] Plaintiff had the burden of proving that defendant acted without reasonable cause, and that the attack, or the search, which took place on a public street in the town where plaintiff lived, was made without reasonable cause, and plaintiff should be permitted to show his good reputation, and that it was known to the defendant, when the search or the arrest was made. [Stubbs v. Mulholland, 168 Mo. 47, l.c. 78, 79, 67 S.W. 650.] In this connection see also Carp v. Queen Insurance Co., 203 Mo. 295, 101 S.W. 78; Thompson v. St. Louis-San Francisco Ry. Co. (Mo. App.), 3 S.W.2d 1033.
In this view of the case it is unnecessary to refer to other alleged errors, if there be others, as they may not occur on a retrial of the case, if one is had.
For the reasons above noted, the judgment is reversed, and the cause remanded. Haid, P.J., and Becker, J., concur.