Galloway v. Department of Motor Vehicles

57 S.E.2d 799 (1950)

231 N.C. 447

GALLOWAY et al. v. DEPARTMENT OF MOTOR VEHICLES, STATE HIGHWAY PATROL. DAVIS et al. v. DEPARTMENT OF MOTOR VEHICLES, STATE HIGHWAY PATROL.

No. 17.

Supreme Court of North Carolina.

March 1, 1950.

*801 E. C. Bryson, Durham, T. D. Bryson, Jr., Franklin, McKinley Edwards, Bryson City, for plaintiffs, appellees.

Harry McMullan, Attorney General, James E. Tucker, Peyton Abbott, Assistant Attorneys General, for defendant, appellant.

SEAWELL, Justice.

Although the final award of the Industrial Commission denying compensation to the above claimants, using identical language in each case, was expressly predicated on the legal conclusion that they had exceeded their authority in using an airplane in attempted reconnoiter to locate the person they intended to apprehend, and not upon their want of authority to make the arrest (and the main argument here is still pitched on that ground), counsel insists that the members of the State Highway Patrol have no power to arrest an escaped convict, and that Galloway and Davis in the attempt to do so were acting without the scope of their employment and should be denied compensation.

The evidence discloses that for a long while the Highway Patrol had been customarily exercising that power; and it is agreed between the parties that there had been no instruction or ruling whatever on the matter, either directive or inhibitive, as to the use of this convenient, not unusual, and seemingly effective instrumentality in the process of apprehension and arrest offenders against the law. Whether this was under the direction of the employing Department or simply with their acquiescence does not appear; but it is an activity which from the wide-spread distribution of the State Patrol, their knowledge of the highways and their facilities for instant intercommunication they are well fitted. But we do not find it necessary to pass upon the authority of the patrolmen to make an arrest of "escaped convicts," or to say whether the defense is available to the appellant which might, if a private employer, be somewhat bound by custom and mutual dealing between the parties. *802 Leaving this aside, the appeal hinges more immediately on the question whether the claimants, members of the State Highway Patrol, had legal authority to arrest the person described in the information given to them by or through Miss Stevens because of the conduct of the man described as an escaped convict on his visit to her home. The appellees contend that the information in its particulars amounted to an accusation of a criminal offense on the part of the supposed convict, committed on his visit to the home, which justified his arrest by a State Highway Patrolman regardless of his status as a convict or perpetrator of any previous offense. This requires a critical examination of the statute invoked by the claimantsappellees as conferring such authority.

The limited jurisdiction of the Highway Patrol, ordinarily confined to violations of highway or traffic laws and regulations, is extended to offenses not thus related by G.S. § 20-188, which reads as follows: "The state highway patrol shall have full power and authority to perform such additional duties as peace officers as may from time to time be directed by the governor, and such officers may at any time and without special authority, either upon their own motion or at the request of any sheriff or local police authority, arrest persons accused of highway robbery, bank robbery, murder, or other crimes of violence."

The power given to the Governor as the chief executive officer of the State, Constitution, Article III, Section 1, to meet from time to time emergent conditions, such as mass violations of law with which the ordinary civil constabulary is insufficient to deal, came into the law as a logical and salutary provision soon after the organization of the Highway Patrol. The part of the statute relied upon by the appellee, however, has nothing to do with the gubernatorial authority and there is no evidence that it was had. It is confined to the latter part of the statute, (underscored for separate attention), which provides that "such officers may at any time and without special authority, either upon their own motion or at the request of any sheriff or local police authority, arrest persons accused of highway robbery, bank robbery, murder, or other crimes of violence."

The contention of the appellees is that the officers who undertook to find and arrest the subject of Miss Stevens' information had authority to act in the premises "upon their own motion" because her information amounted in substance to an accusation of a "crime of violence" within the purview of the statute, to wit: Armed robbery from the person, since he was fed or food given him because his statement that he wanted something more to eat was backed by a display of firearms and a threat to kill. We think this statement, made to the patrolman, may be reasonably so construed.

In the argument here the defendant Department points out that according to the statement of Miss Stevens the "escaped convict" was from a distant state, "2,000 miles away;" but there is no evidence that that information was conveyed to the patrolmen. In the much narrowed area of discussion as to the source of authority it makes no difference as to the status of the man sought as an escaped convictwhether he wore stripes or dungarees, or hailed from Kalamazoo or Timbuktu. He was a man accused of a crime definitely analogous to those named in the cited law, or if not so, then covering a still more extensive category as a crime of violence and it makes no difference whether we apply the principle ejusdem generis to the latter phrase or accept it as an independent delegation of authority.

It is clear, we think, that the term "accused" was not used in the law in a technical sense but in the generic and popular sense. It is defined in Bouvier's Law Dictionary Rawle's Third Revision, page 112 as: "To charge or impute the commission of crime or immoral or disgraceful conduct or official delinquency. It does not necessarily import the charge of a crime by judicial procedure; State v. South, 5 Rich (S.C.) 489, 493; Com. v. O'Brien, 12 Cush. 84 [66 Mass. 84]; Robbins v. Smith, 47 Conn. 182; 1 C. & P. 479."

*803 We note the extent of the power given to the Highway Patrol under this statute,and we have carefully considered this in its bearing on the correct interpretation; but we can reach no other result as to the legislative intent. With the propriety of the legislation we have nothing to dothat is a matter of legislative discretion, political rather than juridical.

The contention that the claimants departed from the terms of their employment by using an airplane in an effort to locate or find the man they sought to arrest is without merit. There is nothing novel or unusual in the use of an airplane for any purpose for which it is suitable, either in transportation or reconnoiter. The evidence tends to show that its use in the manner intended had been attended with success in other instances. Bearing on this phase of the case see Fournier's Case, 120 Me. 236, 113 A. 270, 272, 23 A.L.R. 1156; Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834; Travelers Ins. Co. v. Burden, 5 Cir., 94 F.2d 880.

For these reasons the judgment of the Superior Court must be affirmed. It is so ordered.

Galloway v. Department of Motor Vehicles affirmed.

Davis v. Department of Motor Vehicles affirmed.