HEATH v. BOYD, 141 Tex. 569 (Tex.

1943)

Supreme Court of Texas. November, 1943.

HEATH v. BOYD
141 Tex. 569 (Tex. 1943)

BERTH HEATH v. J.A. BOYD. There being nothing in the statutes to authorize such
action a trespasser is not subject to arrest without a
No. 8133. warrant.

Supreme Court of Texas. November, 1943. 4. — False Imprisonment.

Decided November 17, 1943.
Where an officer arrests without warrant he is re-
quired under Article 227 C.C.P., 1925, to immediately
1. — Arrest Without Warrant — Common Law.
take the person arrested before a magistrate, and his
The arrest of a citizen without a warrant is an unrea- failure to do so constitutes a case of false imprison-
sonable seizure of his person, unless such arrest is ex- ment.
pressly authorized by statute. Such authority cannot
Error to the Court of Civil Appeals for the Third Dis-
be conferred by either common law or the court deci-
trict, in an appeal from Irion County.
sions of other states.
This is a suit by Berth Heath against J.A. Boyd, sheriff
2. — Arrest — Warrant. of Irion county, for damages because of the false im-
prisonment of the said plaintiff by the defendant. The
No person may lawfully be arrested without warrant facts are stated in the opinion. In the trial court a judg-
unless such person has committed a felony or a breach ment was rendered for the defendant *570 and that
of the peace within the presence or view of another judgment was affirmed by the Court of Civil Appeals,
person, an officer or a magistrate who verbally orders 171 S.W.2d 396, and plaintiff has brought error to the
his arrest; when his arrest may prevent the conse- Supreme Court.
quences of theft; when a peace officer is informed by
a reliable party that a felony offender is about to es- The case was submitted to the Court sitting with the
cape; when the accused threatens to take another's life, Commission of Appeals, and an opinion written by
in the presence of a magistrate; when he is an escaped Mr. Judge Brewster was adopted as the opinion of the
prisoner; when he is found in a suspicious place un- Court.
der suspicious circumstances, and for any statutory of-
fense under which an arrest without warrant is autho- The judgments of both courts are reversed and the
rized. cause is remanded to the district court for a new trial.

T.R. Johnson, of Big Lake, for petitioner.

3. — Trespassers — Arrest.
It was error for the Court of Civil Appeals to hold that
the evidence did not conclusively show that the arrest
of petitioner by respondent without a warrant was il-

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 HEATH v. BOYD, 141 Tex. 569 (Tex. 1943)

legal and unlawful, entitling petitioner to damages as complaint, Boyd went to Heath and asked him to stop
a matter of law. Allen v. State, 66 S.W. 671; Conti- until the matter could be settled. Boyd testified that
nental Casualty Co. v. Miller, 135 S.W.2d 501; Pratt v. Heath's reply was, "`The only way to stop me is to ar-
Brown, 80 Tex. 608, 16 S.W. 443. rest me.' I told him I didn't want to do that and he
said, `that is the only way I will stop.' I said `If that is
Collins, Jackson, Snodgrass and Blanks, of San Angelo, the way you feel about it I will have to arrest you'."
for respondent. Heath then entered Boyd's car and was driven to the
road camp, where he got into his own car and drove to
the county seat, followed by Boyd. There he was tak-
MR. JUDGE BREWSTER, of the
en to the sheriff's office, where he remained for a peri-
Commission of Appeals, delivered the
od variously estimated to have been from one to three
opinion for the Court.
hours. During that interval Boyd called Johnson and
Petitioner, Berth Heath, sued respondent, J.A. Boyd, asked him to come in and file a complaint, but John-
sheriff of Irion County, for damages for false impris- son replied that he had decided not to file it. Heath was
onment. A jury verdict on special issues resulted in a then released, whereupon he went back to work and
judgment for Boyd, which was affirmed by the Court finished the road in about a week without being mo-
of Civil Appeals. 171 S.W.2d 396. lested any further by anybody. No complaint was ever
filed and no warrant of arrest was ever issued.
The point at issue is the authority of a peace officer to
arrest without warrant. Boyd's pleading was that he arrested Heath "to prevent
a threatened breach of the peace between Johnson and
The commissioners' court of Irion County undertook Heath and in an attempt and in order to protect the
to construct a lateral road from a main highway to property lawfully in the possession of Johnson"; that
and across several ranches, one of which was in the everything he did "was done for the sole and only rea-
possession of one R.D. Johnson, as lessee. After the sons as are set out above." When asked what law he
work began, a difference arose between Johnson and thought Heath was violating, Boyd testified, "I figured
the court as to what route the road should take on he was trespassing." Although that testimony would
his ranch. Heath, as employee of the commissioner seem to limit the question to his authority to arrest
of that precinct, was operating a maintainer on John- Heath for trespassing, we shall consider it also from
son's ranch to take off whatever had to be removed the standpoint of his authority to make the arrest to
to construct the road. Johnson went to Heath and the protect Johnson's property and to prevent a threat-
other employees and asked them to suspend work, ened breach of the peace.
telling them the county judge had said that work
would cease until Johnson and the court could settle 1 Art. 1, sec. 9, of the Constitution of Texas, guaran-
the controversy. The other employees quit, but Heath tees that the people shall be secure in their persons
persisted with the maintainer. *571 from all unreasonable seizures. Therefore, despite
obiter dicta expressions to the contrary in a few cases,
Before he thus attempted to stop the work, Johnson our courts, both civil and criminal, have consistently
had called Boyd. And the latter was waiting at the said that the arrest of a citizen without warrant is
home of Johnson's brother, some three or four miles an unreasonable seizure of his person, unless it is ex-
away, while Johnson was conferring with the road pressly authorized by statute. An early criminal case
crew. After Heath refused to quit, Johnson returned is Lacy v. State, 7 Texas App., 403; a late one is Ro-
to Boyd to report. After Johnson promised to file a driguez v. State, 172 S.W.2d 502. A recent civil case

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 HEATH v. BOYD, 141 Tex. 569 (Tex. 1943)

is Continental Casualty Co. v. Miller (Civ. App.), 135 the presence or view of the officer or other person,
S.W.2d 501. There are many others. See McBeath v. Art. 212, C.C.P., 1925, or (b) in the presence or view
Campbell (Com. App.), 12 S.W.2d 118; Karner et al of a magistrate who verbally orders his arrest, Art.
v. Stump (Civ. App.), 34 S.W. 656; Regan v. Harkey 213, ibid.; (2) when his arrest may prevent the conse-
*572 (Civ. App.), 40 Texas Civ. App. 16[ 40 Tex. Civ. quences of theft, Art. 325, ibid; (3) when a peace offi-
App. 16], 87 S.W. 1164 (er. ref.); Jones v. State (Civ. cer is informed by a credible person that a felony of-
App.), 109 S.W.2d 244; Clement et al v. Emmons (Civ. fender is about to escape and there is no time to se-
App.), 170 S.W.2d 610 (er. ref. want of merit); Mun- cure a warrant, Art. 215, ibid.. (4) when the accused
dine v. State, 38 S.W. 619; Staples v. State, 14 Texas threatens to take the life of another, within the hear-
App., 136; Allen v. State, 66 S.W. 671; Harless v. State, ing of a magistrate, the magistrate may arrest him, if
109 S.W. 934; Buchanan v. State, 74 S.W.2d 1022. the case is one of emergency, Art. 73, ibid.; (5) when
he is an escaped prisoner, Art. 244, ibid., which is re-
And, since the subject is thus exclusively regulated by ally retaking and not an arrest, Ex parte Sherwood,
the Constitution and statutes of this state, it follows supra; (6) when the ordinances of a city or town may
that the authority to arrest without warrant cannot be authorize such action as to persons found in suspi-
conferred by the common law or by the court deci- cious places or under circumstances *573 reasonably
sions of other states. Lacy v. State, supra; 6 C.J.S., sec. showing that they have been guilty of some felony or
5 a, p. 579. This rule has two objects, namely (1) to breach of the peace or threaten or are about to com-
protect the right of the citizen to his liberty, under the mit some offense, Art. 214, ibid.; and (7) generally,
presumption of his innocence of all crime; and (2) to for any offense when the statute defining the same ex-
inform peace officers as to the limits of the authori- pressly confers the authority, e.g., highway violations,
ty with which they are invested. Ex parte Sherwood, under Art. 803, P.C., 1925; liquor violations, under
15 S.W. 812. In Pratt v. Brown, 80 Tex. 608, 16 S.W. Art. 666-30, Vernon's Anno. P.C.; unlawfully carry-
443, relied on by Boyd, the precise question was the ing arms, under Art. 487, ibid.; rioting, under Art. 98,
authority of a policeman to arrest, without warrant, C.C.P., 1925; unlawful assembly, under Art. 101, ibid.;
a person found drunk in a railway station, and it was disloyalty, under Art. 156, P.C., 1925.
correctly held that the arrest was legal because Art.
363, of the revised statutes of that day, authorized the If the situation claimed to authorize an arrest without
city marshal and his deputies to "arrest without war- warrant does not come squarely within some one of
rant all who are guilty of any disorderly conduct or the foregoing classifications, the authority does not
disturbance whatever," and the opinion expressly rec- exist, because the statutes are strictly construed. Au-
ognizes that the court did not have to resort to the thorities, supra. The only statute that carries even a
common law to decide the question. Hence, any state- semblance of authority for the arrest of Heath is Art.
ments therein that the common law authorizes arrest 212, C.C.P., 1925. It empowers a peace officer or other
without warrant in some instances, or that peace offi- persons to arrest an offender, without warrant, when
cers are invested with that broad power as conserva- the offense is committed in his presence or view, pro-
tors of the peace, are purely gratuitous, and they are vided it is a felony or is classed as an offense against
not even of persuasive force, in the face of many cases the public peace. Boyd pleaded that he arrested Heath
to the contrary. to prevent a threatened breach of the peace between
the latter and Johnson. The statute says an offender
2 The only circumstances under which one may law-
may be arrested for an offense committed. That language
fully be arrested without warrant are: (1) when he clearly implies that all the elements necessary to be
commits a felony or a breach of the peace (a) within proved to sustain a conviction of the accused must

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 HEATH v. BOYD, 141 Tex. 569 (Tex. 1943)

exist to give a peace officer the authority to arrest But it is argued that, independent of the articles of the
him without warrant. Manifestly, since Johnson was statutes specifically dealing with the subject, Boyd had
three or four miles from the scene of the arrest, there the right to arrest Heath under the provisions of Arts.
was, at most, only a possibility of later trouble be- 77 and 78, C.C.P., 1925. Under Art. 77, when one per-
tween him and Heath if Heath did not abandon the son is about to commit an offense against the property
road work, and even that seemed remote in view of of another within the presence or view of a peace of-
the fact that there was no disturbance between them ficer, it is the officer's duty to prevent it, but he must
at their interview earlier in the morning. And nobody use no greater force than is necessary. Art. 78 provides
would contend that Heath's conduct in the presence of that the conduct of the officer, in preventing the of-
Boyd would sustain his conviction for any breach of fense, is to be regulated by the same rules as are pre-
the peace. On neither occasion did Heath exhibit any scribed to the action of the person about to be inju-
weapon. At no time did he yell, shriek, curse, abuse or red; that he may use all force necessary to repel the
threaten anybody, or commit any other act denounced aggression. Two facts about these statutes are signifi-
as a breach of the peace by Arts. 439 to 489b, P.C., cant, namely, (1) they make no reference whatever to
1925. He only wanted to operate the maintainer and any right of the peace officer to arrest a person about
insisted on doing so. That a breach of the peace might to commit an offense against the property of anoth-
be precipitated by that attitude did not justify his ar- er; and (2) in whatever the peace officer attempts un-
rest without warrant, under Art. 212, supra. The mere der them, he is strictly limited to what the owner of
possibility or danger that one may occur is not enough the property can do. So, if Johnson could have tak-
to legalize such an arrest. Otherwise, the liberty of the en Heath into custody and could have taken him into
citizen would be hazarded on the guess of a peace offi- Mertzon, several miles distant, and could there have
cer as to what may happen rather than on his knowl- held him from one to three hours, without a warrant
edge of what has happened. Rucker v. Barker, 108 and without ever filing any complaint, Boyd could do
Tex. 280, 192 S.W. 528; Brown v. Wallis, 101 S.W. so. Otherwise, he could not, because Art. 78 plainly
1068; 100 Tex. 546, 101 S.W. 1070; and Mundine says his conduct was regulated by the same rules as
v. State, supra, are illustrative cases. *574 3 Nor does circumscribed Johnson's action. If it may be assumed
Boyd's testimony that he "figured" Heath was trespass- that Johnson's view of the situation was correct all he
ing furnish any justification for the arrest. Trespass- could legally do was to use such force and means as,
ing is not a felony or a breach of the peace. It is not viewed from his standpoint, were reasonably neces-
one of those offenses for which the statute defining it sary to stop Heath from operating the maintainer and
gives the peace officer the right to arrest the offend- to expel him from the premises. He could do no more,
er without warrant. It was held in Freeman v. Cost- therefore Boyd could do no more. It has been so held
ley (Civ. App.), 124 S.W. 458, that one attempting to many times. The cases hold unequivocally that these
ride a passenger train without paying his fare, could statutes contemplate only that the officer shall prevent
not be arrested without warrant as a violator of Art. the wrong then being committed or attempted and
1673 P.C., 1925; and in Gilbert v. State, 181 S.W. 200, that they were never meant to confer upon him any
that the fact that the accused was caught running an- authority of *575 arrest without warrant. They rec-
other's goats did not justify his arrest without war- ognize that his authority in making a lawful arrest is
rant. Yet clearly both offenders were trespassers. So much broader than it is in preventing injury to prop-
we hold that Boyd had no authority to arrest Heath as erty. See Freeman v. Costley; Mundine v. State; Allen
a trespasser, for the sufficient reason that there is no v. State, and Gilbert v. State, supra.
statute authorizing any such arrest. Authorities cited
in the fifth paragraph, above.

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 HEATH v. BOYD, 141 Tex. 569 (Tex. 1943)

4 Moreover, if Heath's arrest had been authorized by son's consent, that Boyd believed it reasonably neces-
the statutes, his subsequent detention as pleaded and sary to arrest Heath to stop the maintainer without a
proved would make a case of false imprisonment disturbance of the peace, and that it was reasonably
against Boyd. The undisputed facts are that after his necessary for Boyd to arrest Heath to prevent *576
arrest Heath rode with the sheriff to the former's car, injury to Johnson's property, since those issues were
which he then entered and drove several miles to the immaterial on the legality of the arrest. The issue for
courthouse, followed by Boyd. There he was detained the jury, in connection with Heath's claim for actual
in Boyd's office from one to three hours, while Boyd damages, is the amount to be awarded. Karner et al v.
was seeking advice by telephone as to what to do, in Stump, supra.
the face of a plain statutory command as to what must
Except as the same may be affected by what we have
be done in all cases of arrest without warrant. Art.
said, there is no question before us in relation to
217, C.C.P., 1925, provides, "In each case enumerat-
Heath's prayer for exemplary damages.
ed in this chapter, the person making the arrest shall
immediately take the person arrested * * before the
The judgments below are reversed and the cause is re-
nearest magistrate where the arrest was made without
manded to the district court for a new trial.
an order." Substantially the same requirement appears
in Art. 325, C.C.P., 1925, and Art. 487, P.C., 1925. Opinion adopted by the Supreme Court November
Presumably, there was a magistrate in Mertzon, the 17, 1943.
county seat. Yet Boyd offers no reason why he did not
take Heath before that official. Neither in his plead-
ings nor in his testimony does he suggest that a mag-
istrate was not reasonably available, although the ar-
rest and detention all occurred between 8 o'clock in
the morning and noon. If he had taken Heath to that
official, he could have gotten the information and as-
sistance he was seeking by telephone. He was under
no obligation to seek advice or aid from Johnson. He
was under a positive duty immediately to seek a mag-
istrate. That such failure, unexcused, makes a case of
false imprisonment, as a matter of law, is held by all
the authorities. Newby v. Gunn et al, 74 Tex. 455,
12 S.W. 67; McBeath v. Campbell, 12 S.W.2d 118;
Alamo Downs, Inc., et al v. Briggs (Civ. App.), 106
S.W.2d 733 (er. dism.); Box v. Fluitt (Civ. App.), 47
S.W.2d 1107; Maddox v. Hudgeons (Civ. App.), 72
S.W. 414 (er. ref.); Karner et al v. Stump (Civ. App.),
34 S.W. 656; Petty v. Morgan et al (Civ. App.), 116
S.W. 141; Bishop v. Lucy et al (Civ. App.) 50 S.W.
1029; 35 C.J.S., p. 546, sec. 31

It follows that the trial court erred in rendering judg-

ment for Boyd on the jury's answers to special issues 1,
2 and 3 that Heath was blading the road without John-

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