City of Hattiesburg ex rel. Coston v. Beverly

Ethridge, J., delivered the opinion of the court. The appellant, A'. B. Caston, filed suit against T. W. Beverly,, a policeman of Hattiesburg, and the surety on his official bond, on two counts — one count being for the unlawful seizure and search of a suit case belonging to and in the possession of Caston, without having obtained a search warrant so to do; and, second, for an unlawful arrest without warrant. There was a plea of the general issue as to each of said counts, and notice of special matter under the general issue. Under the notice of special matter under the general issue, the defendant gave notice that at the time of the alleged acts Beverly was a policeman of the city of Hattiesburg, and was advised by certain military police of iCamp Shelby, who were on duty in the city of Hattiesburg, that the said Caston had in his — 767 — suit case in said city an unlawful quantity of intoxicating liquor, in violation of law; that the said Beverly, on being so informed, approached Caston and advised him to the effect that he (Beverly) understood that Caston had whisky in his suit case, in violation of the laws of the state of Mississippi, and requested him (Caston) to permit Beverly to look in the suit case for whisky; that at said time Caston Avas under the influence of intoxicating liquor, and Avhen so approached by Beverly began to curse and swear profanely in a public place in the presence of two or more persons, setting forth the language used, and that then and there Beverly arrested Caston for profanity, and Caston was carried to the city hall for said offense, and on arrival at the city hall the plaintiff voluntarily opened his suit case and requested the chief of police to look in the suit case, if "he thought Caston had intoxicating liquors therein; that the charge of profanity was docketed against Caston, and he Avas immediately discharged, upon making bond. On the trial of the case the plaintiff’s testimony, if believed by the jury, made a case for the plaintiff; but the testimony for the defendant showed that there .was no •seizure or search of the suit case, and that Caston was arrested for profanity in a public place, arid that this is the only charge «that was docketed against him. It was also testified that the plaintiff voluntarily opened his suit case, stating to the chief of police, in the presence of Beverly, that he could look in the suit case if he thought he had liquor. It was further testified for the defendant that the plaintiff was under the influence of intoxicating liquors, and that he refused to leave the city hall, and demanded a trial that night, which was refused, because the city held no court at night. It further appears from the evidence that the charge preferred against iCaston in the city court resulted in a conviction by the police justice, and an appeal to the circuit court was taken, where the case was dismissed by the city, whereupon the present action was brought. — 768 — It is argued by tbe appellant that, inasmuch as Caston was under arrest at the time he was carried to the city hall, the opening of the snit case was not voluntary, but was under duress by reason of the fact that he was under arrest, and that there was nothing to. go to the jury to show legally that the plaintiff permitted voluntarily the search of his suit case. It is also contended that, because the affidavit was made charging violation of a municipal ordinance, the.arrest ivas unlawful; it being conceded that there was no warrant obtained. The appellee contends that, if the .policeman had a right to make' the arrest under the state law, it is wholly immaterial whether he preferred a charge at all, and, if he did, whether it was preferred for violation of a municipal law, or whether for violation of a state law; that policemen are state officers, charged with the duty of conserving the peace and arresting for violation of state law amounting, to indictable offenses committed in their presence, without obtaining a warrant. The city of Hattiesburg has a general ordinance mailing all misdemeanors under the state law offenses against the city. of Hattiesburg, but did" not have a section authorizing policemen to make arrests for violation of city ordinances without Avarrant. As stated above, the evidence for the plaintiff - and for the defendant is directly and hopelessly in conflict. Of course, conflicts in the evidence are for the jury. It is contended for the appellant that this case is governed by Letow v. U. S. F. & G. Co., 120 Miss. 763, 83 So. 81, in Avhich we held that the general state statute did not authorize a police officer to arrest a person without a warrant for a violation of a municipal ordinance, even though committed in his presence; the city not having a special ordinance authorizing arrest without a warrant for violating a municipal ordinance. In that case the ordinance was not an offense under the state law, amounting to a misdemeanor. In the present case the charge of profane swearing in the presence of three or more pérsons in — 769 — a public place is a misdemeanor under the state law, and was also a violation of the municipal ordinance. This court decided in the case of Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 715, that a policeman was a public officer of the state within the meaning of section 20 of the Constitution. It is also undisputed that the policeman is a conservator of the peace, and if the arrest was made for swearing profanely in the presence of three or more persons in a public place, as testified by the defendant, we think the arrest was lawful. It is contended that a policeman cannot by his conduct provoke a person into violating the law, and then arrest without warrant, and escape liability for such act. The appellee says on this point: “This is a novel defense. By this argument the plaintiff undertakes to justify his profanity by showing that he was provoked into making the profane declaration. Insulting words may justify assault and battery, and an assault with a deadly weapon may authorize the person assaulted to defend himself to the extent of taking human life if necessary; but neither' the statute nor the moral law excuses profanity in a public place in the presence of two or more persons. The plaintiff did not have to curse, if the defendant did provoke him. Profanity did not do him any good. lie could not protect or assert his rights by it. The English language furnishes a great variety of excellent words by which he could have expressed his feelings, if he was provoked by the defendant. Be did not have to violate the statute and one of the Ten Commandments, because he was annoyed or provoked by the officer. A man cannot curse in self-defense.” The proposition that a man cannot curse in self-defense is rather a broad assertion. We have an illustrious example in Holy Writ, for when Jesus was under arrest preceding the crucifixion some of the crowd accused Peter of being also an offender, which he denied. He was accused a second time, and denied it a second time, and when he was accused a third time he began to curse and swear. — 770 — Whether the cursing constituted a defense at law on that occasion is not recorded, but the crowd did not' arrest Peter and arraign him before the court. The writer, however, prefers not to commit himself fully upon this proposition, being an officer of the church as well as of the state. But the court below granted the appellant this principle, giving the following instruction: “The court charges the jury that an officer cannot provoke another with the violation of law, and then justify an arrest of the person without warrant therefor. Therefore, if you believe from the evidence. that the defendant willfully and unlawfully attempted to require Caston to submit his suit case to an unlawful search, and such willfully unlawful conduct of Beverly caused Caston to curse, then Beverly cannot justify his act in arresting Caston without warrant by the fact that he did curse.” So it is not up to us to determine judicially this question now. It is earnestly contended that it was error for the court to give the following instruction: “The court instructs the jury, for the defendants, if you believe from the evidence Caston cursed in a public place in the presence of two or more persons, one of whom was Beverly, a policeman, and that Beverly arrested him for such cursing, then under the law Beverly had the right, and it was his duty, as an officer of the law, to arrest Caston without a warrant, and it is the sworn duty of the jury to find a verdict for the defendants, and it is immaterial whether Caston was tried or not for such cursing, and whether he was acquitted or convicted.” It is contended that this instruction directed the jury to find a verdict for the defendant, if he cursed in a public place, regardless of the fact whether the suit case was searched, and whether such search was legal or not. The instruction, if taken alone, would be subject to this criticism; but when we take the instructions as a whole, and consider them as parts of a general charge, one part as supplementing or modifying another., we think it does not — 771 — constitute reversible error. In tbe preceding instruction for the defendant the court dealt with the unlawful seizure and search proposition, and put it to the jury fairly as to whether the suit case was opened voluntarily or not; and especially when it is considered in connection with the plaintiff’s charges, it is hard to believe that the jury were misled to the plaintiff’s prejudice. It is true, no doubt, that a person under arrest charged Avith an offense might be induced or coerced through his fear to do something which he would not do under other circumstances. But it is also true that a person under arrest may voluntarily do an act which the law would, not compel him to do, and the fact simply that he was under arrest Avould not make all of his acts while under arrest involuntary. Whether an act was voluntary or not must be determined by the trier of fact, taking into consideration all the surroundings. Taking the evidence in the present case, we are not able to say that the jury was not Avarranted in finding from the evidence that the plaintiff voluntarily opened his suit case. The appellant relies upon Banfil v. Byrd, 84 So. 227, as being conclusive on the proposition that the appellant did not act voluntarily in opening his suit case for the satisfaction of the police officials. In the Banfil Case the officer had a void Avarrant, which he exhibited, and Ave held that he could not defend on the ground that the defendant consented to the search, unless it appeared that the consent was freely given, or that the party had full knowledge of her rights, and that such consent was not given because of the warrant or the official character of the officer; that the citizen is not required to resist an officer to maintain a suit in such cases. It is quite probable that if the plaintiff, when “requested” by the policemen to let him look into the suit case, had done so because of the official character of the officer and in ignorance of his rights, the court would not hold that it was a voluntary act. However, the plaintiff seems to have been advised of his rights, and refused to permit his — 772 — suit case to be opened, and when he was carried to the city-hall, if the defendant’s theory be true, he voluntarily opened his suit case, when no charge had been preferred against him for having liquors in his possession. The evidence was in such conflict that the court rightly submitted it to the jury. We see no reversible error in the record, and the judgment is affirmed. Affirmed.