Finney v. Zingale | Cases | Westlaw

In the first of the two counts of the declaration, a count for malicious prosecution, the plaintiff averred, among other things, necessary to show the cause of action, that the defendant appeared before W. E. Stuart, mayor of the city of Keystone, authorized by law to issue warrants in criminal cases, and falsely and maliciously and without any reasonable and probable cause whatsoever charged plaintiff “with some such offense as aiding and abetting one Nannie Spinello and Joe Zingale in lewd, lascivious and unlawful cohabitation, or some other charge of a similar nature, the purport of which is to plaintiff unknown,” and upon such charge falsely and maliciously and without any reasonable or probable cause procured the said Stuart as such mayor to make and grant a certain warrant in due form of law for the apprehension of plaintiff, and for bringing her before the said mayor to answer the said charge, and to be further dealt with according to law; and by virtue of such warrant defendant caused her wrongfully and unjustly and without any reasonable or probable cause to be arrested, detained, and kept in the custody of the law, and carried before the said mayor, who, having considered all the defendant could say, allege, or prove against her concerning the said offense, adjudged her not to be guilty thereof, and acquitted her.

In the second count, a count for false arrest, the averments differ from those of the first only in the following respects: That the charges were not in writing, and no warrant was issued, yet at the instance of the defendant and without any reasonable or probable cause he induced the mayor to have the plaintiff arrested and brought before him, and to be held by the officer making the arrest until her guilt or innocence upon such charge could be determined by a trial, and that said trial was had, and she was acquitted and discharged from custody.

The evidence adduced by the plaintiff in support of the causes so averred being excluded *1047 from consideration by the jury upon the motion of the defendant, they found for him, and the court entered the judgment to which she prosecutes this writ.

Though it appears from the testimony of Stuart, the mayor, who was called as a witness for plaintiff, that one or two complaints were made by Police Officer Downs, and a warrant was issued on each complaint, the nature and character of the offense charged is not revealed either by a complaint or warrant produced or filed, or otherwise than by the testimony of the plaintiff that she was informed by Downs that her house was “pulled,” and by memoranda on the mayor's docket, placed thereon probably by Downs. So far as the memoranda concern the plaintiff they are:

While not formally offered or admitted in evidence, the entries, however, were withdrawn from the jury over the objection of the defendant, and thereby was eliminated the only record evidence or documentary proof of what actually occurred as regards the arrest and discharge of the accused, and so far as material to defendant's liability, left only the oral testimony of his participation in procuring plaintiff's apprehension and arraignment, the sufficiency of which constitutes the only ground upon which he is chargeable.

Warrants were issued by Stuart, who as mayor was clothed with ample authority to issue them, upon complaints made by Officer Downs, and were executed by the arrest of the plaintiff by a proper officer in a lawful manner. This cannot be gainsaid, and is not controverted; indeed, plaintiff admits Downs informed her when she was taken into custody that he had a warrant for her arrest and exhibited in her presence a paper which she supposed was such a process. She then certainly was apprehended lawfully, and her detention was not illegal, even if it be true, as testified to by the witness Wright, that the defendant said he had caused plaintiff to be taken into custody for the protection of his brother Joe. These characteristics readily differentiate the case from Ruffner v. Williams, 3 W. Va. 243, and Cole v. Radcliff, 4 W. Va. 332, where the acts complained of were done without the semblance of lawful authority by roving bands of raiders acting in aid of the Confederate cause during the Civil War, and where there were all the elements of false or unlawful imprisonment. Had plaintiff been taken and detained in custody without the authority of a legal process, or as in Williamson v. Glen Alum Coal Co., 72 W. Va. 288, 78 S. E. 94, and Comisky v. Railroad Co., 79 W. Va. 148, 90 S. E. 385, where the warrant did not charge a legally cognizable offense, indeed no offense at all, or as in Howell v. Wysor, 74 W. Va. 589, 82 S. E. 503, Ann. Cas. 1916C, 519, where the warrant was wholly void, or as in Turk v. Railroad Co., 75 W. Va. 623, 84 S. E. 569, L. R. A. 1915E, 145, where arrests were made without warrants, and had defendant instigated the arrest without pursuing the formality of a complaint and warrant and given aid, comfort, counsel, direction, and encouragement to the officers engaged in effecting the apprehension, he would be chargeable with the wrong and injury done, as held in Ruffner v. Williams and Cole v. Radcliff, supra. Nor must this case be confused with cases where an arrest is made without a warrant for a misdemeanor not committed in the presence of an officer.

*1048 Having failed to show malice and want of probable cause, plaintiff properly was refused relief upon the first count of the declaration, and there being a variance between the averments of the second and the proof offered to support them, it results that the judgment under review must be affirmed.