Roynon v. Battin

This is an appeal from a judgment on a verdict in favor of all defendants and respondents in two consolidated actions instituted by plaintiff and appellant for false arrest and unlawful imprisonment. Two actions are involved in the present appeal, one in which the sheriff of San Bernardino County, E. L. Shay, and his deputies, Manning and Miller, are defendants, together with the Pacific Indemnity Company, as surety on the sheriff’s bond. The

The acts complained of took place in Kelso, located in the San Bernardino County desert approximately 100 miles east of Barstow. Respondent Battin was constable of Kelso Township on May 29, 1937. At about 11:30 a. m. of that day, he observed appellant and his brother-in-law, Gibbel, in a truck at Kelso, and noted that they had a rifle and that there was blood on the back of the truck. He waited until these men drove off in the truck, and then, according to his testimony, watched them, through a telescope, drive the truck to a reservoir about a mile and a half from Kelso, and then up toward the mountain. Later, Battin went up to the reservoir and sighted them again through the telescope and noted that both men were circling and driving a herd of burros and that one man shot a number of the burros. He further testified that one of the burros was wounded and ran off and fell into a wash and that one of the men went over to look at it and then came back; that he saw one man drive the truck to the dead burros, and both men loaded the butchered burro meat into the truck; that he returned to Kelso about 3 p. m.; that the men returned in the truck about 5 p. m.; that a number of residents came to him and reported that the men were back and demanded that he take some action. Battin then went to where the men were parked in the truck at a railroad crossing and told them that he was the constable, and asked them if he might inspect the contents of the truck. Gibbel told him that he had burro meat in the truck. Battin asked both men if they had hunting licenses. Gibbel replied that he did not. Boynon answered that he did have one but not with him. According to Bat-tin’s testimony, he asked Gibbel if he would “take full responsibility” and Gibbel stated that he would not. Battin then placed them under arrest and stated that he would take them to see Judge Strieker, the local justice of the peace. Gibbel then stated that he would go to Judge Strieker’s, but he wanted appellant to stay with the meat and unload it so it would cool and protect it from the dogs. After some little conversation, Battin took the keys to the truck and left with Gibbel. Appellant stayed and unloaded the burro meat. Constable Battin testified that at the judge’s home he, Bat-tin, “charged Mr. Gibbel with being without a proper driv

Appellant testified at some length that the foregoing caused him damages by way of unfavorable publicity, humiliation, and mental anguish, including the loss of his W.P.A. employment.

Appellant first charges that the trial court erred in refusing to instruct the jury to return directed verdicts for the plaintiff. After receiving all of the evidence, the trial

It is appellant’s position that the evidence was insufficient to show that the offenses alleged were committed “in the presence” of Battin, the constable, and that appellant was therefore entitled to an instructed verdict. It is argued that Battin’s testimony in reference to his observation of appellant and Gibbel was “fantastic” and was discredited by the unlikelihood of it, and that Battin would be unable to see them through a telescope, situated as he was situated, for a distance of 2% miles, and still be able to distinguish them or observe their conduct; and lastly, that the defense that the misdemeanor was committed “in the presence” was not pleaded and came as a surprise to appellant.

Section 427 of the Fish and Game Code recites that “a

The question whether the crime alleged was committed in the presence of the arresting officer Battin, which would authorize him to make the arrest, was a question of fact to be determined by the jury. It appears from the evidence that certain portions of Battin’s story were corroborated by other circumstances. He testified that he could see these men, through the telescope, hunting the burros, and that one burro was wounded and ran down a wash. The evidence discloses that on that same day Battin went to the hunting scene and took pictures of the remains of the burros and of the wounded burro, which he had observed through the telescope run down the wash. These pictures were received in evidence over the strenuous objection of appellant. The evidence, circumstantial and direct, fully justified Constable Battin in making the arrest of both appellant Roynon and Gibbel under the theory that the misdemeanor complained of, i. e., “taking” (hunting, pursuing, catching, capturing or killing) mammals “without a hunting license, was committed in his presence.” (People v. Young, 136 Cal.App. 699 [ 29 P.2d 440 ]; Bruce v. Sibeck, 25 Cal.App.2d 691 [ 78 P.2d 741 ]; Gisske v. Sanders, 9 Cal.App. 13 , 16 [ 98 P. 43 ]; § 31, Pen. Code.) It has been held that a series of acts extending over a considerable period of time, and only constituting a criminal offense because of their continuance and repetition, alone or in conjunction with other circumstances, being capable of observation and actual knowledge by a peace officer, will justify him, when the series of acts is complete, in making an arrest without a warrant, as fully as in the case of any other misdemeanor committed or attempted in his presence.

Appellant argues that as a matter of law, from the evidence, he was delayed for an unreasonable length of time after his arrest before being brought before a magistrate for examination and trial and for the purpose of fixing bail, and that by reason thereof respondents were guilty of false imprisonment and were legally liable in damages therefor; that this was the only conclusion that the jury could reasonably have reached from the evidence; and that their verdict in favor of the respondents and the judgment entered thereon are clearly contrary to the law and evidence. Under the circumstances and conditions here presented it cannot be so held as a matter of law. This question of fact was placed squarely before the jury under proper instructions on that subject. In 79 A.L.R., page 13, many cases are cited in which certain circumstances were held to justify the delay, including inaccessibility of the magistrate, the intervention of holidays, and lateness of the hour. Generally, it is a question for the jury as to whether there was unreasonable delay on the part of those making the arrest. In Peckham v. Warner Bros. Pictures, Inc., 36 Cal.App.2d 214 [ 97 P.2d 472 ], cited by appellant, the appellate court, in reversing a judgment notwithstanding the verdict, said at page 220:

“Applying the above-stated rules of law to the facts of the instant ease, since plaintiff Sorrell was incarcerated for

almost twenty-four hours before being released, and in fact never taken before a magistrate, and plaintiff Beckham was incarcerated for more than forty-eight hours before being taken before a magistrate and released, the case was properly submitted to the jury for a determination of the issue as to whether an unreasonable time had elapsed after the arrest of said plaintiffs without taking them before a magistrate.” (Italics ours.)

Next, appellant complains of claimed errors of the trial court in admitting certain evidence over his objection. One pertained to certain photographs of dead burro carcasses, which it is contended, excited the sympathy of the jury and prejudiced it against appellant. The record is replete with descriptions of the killing and slaughtering of the burros, the packing of the meat, and the blood on the clothes of the men. The photos were admissible in evidence. The argument that counsel for respondents were permitted to cross-examine appellant on irrelevant and immaterial matters is not meritorious and there appears to be no abuse of discretion. A trial court has discretionary power over cross-examination which will be disturbed on appeal only in case of an abuse thereof. (East Bay Mun. Utility District v. Kieffer, 99 Cal.App. 240 [ 278 P. 476 , 290 P. 591 ].)

While respondents did not plead justification of the arrest based primarily on the reason that the alleged offense was committed in the presence of the arresting officer, respondent did deny appellant’s allegations in his complaint that “the arrest and imprisonment of plaintiff was wrongful, unlawful, and without any reasonable or probable cause,” and did affirmatively set out the evidentiary facts above related. The affirmative defense complained of was brought out before the jury without objection on the part of appellant. The case was tried as though this issue was adequately presented by the pleadings. Appellant may not now raise the question of surprise or lack of proper pleading for the first time on appeal. It is the rule in this state that in the case of affirmative defenses where the parties on the trial treat a defense as sufficiently pleaded, it will be so treated on appeal, even though there may be ah entire absence of an essential allegation. (Busch v. Los Angeles Ry. Co., 178 Cal. 536 [ 174 P. 665 , 2 A.L.R. 1607 ]; Diefendorff v. Hopkins, 95 Cal. 343 [ 28 P. 265 , 30 P. 549 ]; National Union Fire Insurance Co. v. Nason, 21 Cal.App. 297 [ 131 P. 755 ]; 2 Cal.Jur., § 73, p. 246.)

Judgment affirmed.

Barnard, P. J., and Marks, J., concurred.