Formwalt v. Hylton

Robertson, Associate Justice. The plaintiff himself testified that he had been indicted for theft of cattle in Rolan county. This is all the indictment against him, if admitted, could have proved. He also testified that Warren was a witness against him, and that he had been killed. That his son-in-law was indicted for the murder of Warren cast no just suspicion upon the plaintiff. The plaintiff recovered no damages for injuries done to his character, and if these indictments could have been used on that score, no harm was done by their exclusion. The other indictment against the sons and neighbors of the plaintiff [291] for fence cutting was offered as a circumstance justifying suspicion against plaintiff, and an apprehension that he would use his liberty to prevent the arrest of parties for whom defendants had process, and also to prove that plaintiff had been mistaken for one of his sons. There is no pretence in the evidence that plaintiff was arrested on any suspicion against him, or apprehension that he would warn others, and give them an opportunity to escape. The indictment itself would make no such proof, and there was no other proof to be aided by it. It cannot be possible that this indictment would tend in any degree to show that plaintiff was mistaken for one of his sons. It had not been presented when plaintiff was arrested, and it was proved that the defendants had warrants for plaintiff’s sons at the time of plaintiff’s .arrest. The only pretence of excuse for the arrest of plaintiff is found in the conversation between one of the witnesses and Colonel Baylor, from which it seems that Colonel Baylor supposed that plaintiff was either Riley or Dow Hylton. Colonel Baylor did not testify to any such mistake, but it is only a matter of inference from the hearsay testimony .admitted upon the trial. If such a mistake would justify the arrest., it could hardly be held that there was before the court any evidence requiring that law to be given in charge to the jury. The court informed the jury that such mistake could be considered in mitigation of damages, and on the question of malice, but that it would not justify the imprisonment, unless the mistake was caused or contributed to by the plaintiff’swords or acts. This is a correct statement of the law as laid down by this court in the case of Hays v. Creary, 60 Tex., 445. Appellant’s counsel challenge the doctrine announced in that case, but the cases cited do not support their views. In Holley v. Mix, 3 Wend., 350, there was no mistake of one person for another, and the party arrested, it was claimed, was suspected to be guilty of a crime known to have been committed. In the case before this court no person engaged in the arrest of the plaintiff is shown to have entertained any suspicion whatsoever against him. In Rohan v. Sawin, 5 Cush., 281, there was no mistake; the person imprisoned was supposed by the officer, upon reasonable grounds, to be guilty of a crime. Mitchell v. Wall, 111 Mass., 493, was a suit against the instigator of the prosecution in which the plaintiff was imprisoned; malice and want of probable cause had to be averred; the defendant admitted that he had prosecuted the wrong person, but claimed that he honestly mistook the plaintiff for the guilty party, there being between them a strong resemblance. The suit was in effect for malicious prosecu"tion, and of course the plaintiff had to allege and prove malice and want [292] of probable cause. In this case, the plaintiff was not prosecuted at all ; he was not suspected of any offense; he was arrested without warrant, without a suspicion, against him. In Leddy v. Crossman, 108 Mass., 237, the plaintiff was arrested in the actual commission of an offense; he was assaulting the officer whom he sued for damages. The citation in 1 Hilliard on Torts., p. 217, sec. 22, note a, has reference to the class of cases of which Mitchell v. Wall, supra, is an example. The distinction between those cases and the one now before the court is pointed out by that author on pages 414 and 415 of the same volume. In the one case there is a trespass, no matter how innocently the parties acted in arresting the wrong person; in the other the arrest is not a trespass, no matter how malicious and groundless the prosecution in its beginning. If an execution against A. is levied upon the goods of B., the officer is a trespasser. If a warrant against A. is executed by the arrest of B., the officer is a trespasser. If a crime has been committed, and there is ground for suspecting A., these suspicions cannot justify the imprisonment of B. The doctrine of Hays v. Creary is supported by Wait, cited in the opinion, who cites Addison on Torts, 579, and also by Waterman on Trespass, secs. 339, 352, and by sound legal principles. There is no assignment questioning the sufficiency of the evidence to sustain the verdict. The case was fairly presented in the charge, and the record discloses no error. The judgment is affirmed. Affirmed. [Opinion delivered May 21, 1886.]