Burton v. McNeill , 196 S.C. 250 ( 1941 )

January 17, 1941. The opinion of the Court was delivered by This case and a companion case entitled James Cason, by his guardian ad litem J.A. Cason, against the appellant, were commenced on December 26, 1939, damages in the sum of $5,000.00 being asked in each instance. The facts in the two cases are identical, and by agreement of the parties, they were consolidated for trial.

Plaintiff alleges that on the 21st day of June, 1939, he and a companion being "in the vicinity of that vacant house located at the corner of Perry Avenue and Willis Street in the City of Greenville, and observing the door to said vacant house open, decided to, and did go therein"; that they had been in the house only a few moments when defendant appeared on the scene, who, in an angry and violent mood, and with curses and threats on plaintiff's life, took him and his companion into custody and brought them to the Police Department in the City of Greenville where they were placed in jail; that defendant was not an officer of the law and had no legal right or authority to arrest, imprison or deprive him of his liberty; that as a direct and proximate result of such "illegal, unlawful, wilfull and wanton" acts in depriving him of his liberty and causing him to be placed in jail, he was injured and damaged in the sum of $5,000.00.

Defendant, answering, sets up three defenses, the first of which was a general denial. By his second defense he alleges that at the time stated in the complaint he received certain information that a felony had been committed, in that certain persons had broken into and entered his house, and that, acting upon said information, he immediately went to his house and found the door broken open and discovered the plaintiff and a companion inside, whereupon he demanded that they accompany him to police headquarters, where they were turned over to the authorities to be dealt with according to law; that defendant acted as any law-abiding citizen would have acted upon the information received, and for the proper enforcement of the law and the protection of his property, exercising the rights given him as a private citizen. The third defense alleges that on two prior occasions the house had been broken into and set on fire, causing defendant much expense and damages; that upon information that the plaintiff and a companion had broken and entered his house appellant reasonably assumed that they were either the guilty parties committing the former felonies, or that they intended to commit a like crime, and he demanded that they accompany him to police headquarters, where they were turned over to the proper authorities.

On trial, defendant's motion for a directed verdict was refused, and the case was submitted to the jury, who found for plaintiff $1,000.00 actual and $1,500.00 punitive damages. Defendant thereupon asked for a new trial. By his order, the trial Judge overruled such motion, but granted a new trial nisi requiring plaintiff to remit $1,000.00 for the punitive damages awarded, which condition was complied with. The case is now brought to this Court on appeal.

By the first exception appellant charges the trial Judge with error in refusing to grant the motion for a directed verdict, on the ground that "the evidence conclusively showed, and was susceptible of no other inference, that the appellant acted upon receipt of certain information that a felony had been committed, and was, therefore, justified in his acts even though in fact a felony had not been committed or the respondents were not the guilty parties."

Section 907 of the Code of 1932 reads in part that "upon certain information that a felony has been committed * * * any person may arrest the felon or thief * * *."

The certain information alleged to have been received by appellant that a felony had been committed was that Billy Mattox, a boy of eleven years of age, came to McNeill's home on a bicycle and said that he had heard a noise in the house in question which "sounded awful," appellant stating that the boy "ran up on the steps and said a bomb had gone off in your house."

In Bushardt v. United Investment Co., 121 S.C. 324,113 S.E., 637, 640, 35 A.L.R., 637, this Court said: "Even `private persons are permitted to arrest, where a felony has been committed and there are reasonable grounds to suspect the party arrested to be the felon.' `Suspicion' implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof." And inLyons v. Carroll, 107 La., 471, 31 So., 761, We find: "Those who honestly seek the enforcement of the law * * * and who are supported by circumstances sufficiently strong to warrant a cautious man in the belief that the party suspected may be guilty of the offense charged, should not be made unduly apprehensive that they will be held answerable in damages." Also in State v. Griffin, 74 S.C. 412,54 S.E., 603, 604, it is held: "The word `certain' is used in the sense of trustworthy, capable of being depended upon, credible, positive, or reliable, and has reference to the evidence or information upon which the person making the arrest is allowed to act, and not to the actual fact that a felony has been committed. When the information was certain, in the sense hereinbefore mentioned, any person has as much right to make the arrest as if acting by virtue of a warrant issued by a regularly authorized officer of the law."

We turn now to the evidence in order to ascertain whether the message delivered by Billy Mattox to appellant was such certain information as would justify him, under the above rulings of the Court, in acting as he did. Testimony for McNeill was to the effect that on two occasions previous to the time in question the house had been broken into and set on fire; that, because of these former felonies, he had been doing everything possible to catch the guilty parties and protect his property, to which end he and his son had alternated in sleeping in the house at night. There was also testimony that, upon finding the boys in the house, and before taking them to police headquarters, appellant and his son immediately made an investigation of the house and found that a fresh nuisance had been committed in one of the rooms.

We think that appellant, upon receipt of the information that an "awful noise" had been heard in the house, acted as any reasonable and prudent man would have under the circumstances, when he rushed to the house in order to investigate; and upon finding the boys in the house, with the door and window open, it was only reasonable for him to conclude that they had broken into the house with the intent to commit a crime. Under Section 1139 of the Code of 1932, the breaking and entering of a dwelling house or other house, in the daytime, constitutes a felony if done with intent to commit either a felony or other crime of a lesser grade. The testimony is undisputed that the house had been set on fire on at least two previous occasions; also that a fresh nuisance had been committed, even though the boys denied that they were responsible for such nuisance. Hence, the circumstances were sufficiently strong to warrant appellant, as a cautious man, in the belief that the boys were guilty of a felony, that is, that they had broken and entered the house with intent to commit either a felony or other crime of a lesser grade. Therefore, the only inference which could be drawn from the testimony was that appellant was justified under the statute, in making the arrest as he did and in turning the boys over to the authorities. A verdict should have been directed for the defendant. The first exception is sustained.

The above ruling renders unnecessary a consideration of the questions raised by the other exceptions.

The judgment of the Circuit Court is reversed.

MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES BAKER and FISHBURNE concur in result.

MR. ASSOCIATE JUSTICE STUKES did not participate in this opinion.