#### Satterly v. Thornton.

(Decided June 18, 1920.)

Appeal from Spencer Circuit Court.

1. Assault and Battery — Action for Assault — Appeal and Error.— In a suit for assault where tihe issues were properly sulbmiitted to tlie jury a verdict in favor of the defendant will not be reversed Where there is evidence to support it.

*5542. Trial — Argument of Counsel. — .Where alleged improper remarks of counsel in his opening statement to the jury were not objected to, and there was no motion to strike same from the record a reversal will not he ordered.

3. Trial — Argument of Counsel'. — Where the court sustained' an objection to improper remarks of counsel in his argument to the jury and admonished the jury not to consider same, the action of the court in sustaining the objection cured What otherwise might have been a reversible error.

4. Bail — Right to Release on Bail. — Accused was arrested on a peace warrant. On his way to the jail he notified the arresting officer that the companion who accompanied himi was ready to glo on his bond, and he asked to be taken before the police judge who issued the warrant. The arrest was- made in the morning, the police judge was i-n his room, his office was *ait*the time in the court house and hut a few feet from the jail. Held under the circumstances defendant should have allowed accused to give bail.

S. K. BAIRD for appellant.

L. W. ROBS and THAD CHEATHAM for appellee.

Opinion op the Court by

Judge Quin

Reversing.

Appellant, as plaintiff; below, instituted tbis suit to 'recover damages on two counts; one for assault and battery, tbe other for false imprisonment. There was' a directed verdict for defendant on tbe second count, and tbe jury found in bis favor on tbe first. Plaintiff appeals.

Defendant is tbe town marshal of Taylorsville. February 5, 1918, county court day, be received information there would be an attempt to release from jail one who bad been arrested for drunkenness. To prevent tbe escape of tbe prisoner be remained at the court bouse that night. Tbe prisoner bad created a disturbance following Ms arrest. About ten o’clock p. m., while plaintiff, bis son and a companion were in a nearby restaurant, bearing cries in tbe direction of tbe jail they stepped out through a rear door of tbe restaurant to tbe jail yard to see what was tbe trouble. Tbe prisoner requested them to get him a drink of water. Seeing these people near tbe jail defendant, in company with Ms deputy, hastened toward them and ordered them to move on. Some words passed between tbe parties. Their respective version of tbe affair is detailed by tbe opposing witnesses. Defendant in turn struck plaintiff, bis son and *555their companion with a billiard cne, which he had in Ms hand. The evidence of the assault is contradictory. This issue was submitted to the jury under proper instructions and the record contains nothing prejudicial to the rights of plaintiff in this regard.

Alleged improper remarks by counsel in Ms opening statement are urged as grounds for a reversal. The over statement by an attorney of his case is usually fraught with more danger to his side of the controversy than to that of his adversary. "We do not see wherein the remarks complained of could have influenced the jury or affected their verdict. However, they were not objected to, nor was any motion made to strike same from the record.

It is next urged that counsel overstepped the bounds of propriety in his closing argument. We have written oftentimes that in arguing a case to the jury counsel should confine themselves to the facts disclosed by the record, or to reasonable deductions therefrom, and when they exceed these bounds they do so at their peril. See Pullman Co. v. Pulliam, 187 Ky. 213, 218 S. W. 1005, and cases therein cited.

The remarks pointed out were improper and should not have been made, but when they were objected to the court very promptly sustained the objection and admonished the jury that they were not to consider them, thus curing what might otherwise have been a reversible error.

Complaint is further made of two questions propounded the witness Greenwell, but here again the court promptly sustained the objection to the questions — they were not answered.

The court erroneously instructed the jury to find for defendant on the false imprisonment charge. A warrant issued against plaintiff by the police judge on May 20, 1918, was placed in defendant’s hands for service. Said warrant commanded defendant to arrest plaintiff and bring him before the ¡police court to answer a charge of a breach of the peace committed in Taylorsville on the 7th day of May. The form of the warrant substantially! complied with that found in .section 27 of the Criminal Code.

Plaintiff was arrested on the morning of May 20; on the way to the jail he inquired of defendant where he could find the police judge and was told the latter *556was at the court house. When they reached the court house he repeated the question about finding the county judge, and informed defendant that the friend who accompanied them was prepared to go on his bond, whereupon defendant said to come on he did not have time to fool with him. They passed within about eight feet of the judge’s office, but notwithstanding plaintiff’s request to be taken before the police judge, and his ability to furnish satisfactory bail, defendant failed and refused to comply with his request, placed him in jail and locked the door. He did not remain long in jail; his companion immediately appeared before the judge, arranged the bond and plaintiff was. released. Under the circumstances it was defendant’s duty to have taken plaintiff before the .police judge and afford him the opportunity of furnishing bail and not subject him to the humiliation of being placed in jail. He was so directed by the warrant, and requested by the plaintiff, who advised him he had a bondsman ready. Under the provisions of section 27 of the Criminal Code it is the duty of the arresting officer to bring the prisoner before some magistrate of the county in which the' offense was committed; and in section 28, in misdemeanor cases it is provided that the person arrested may immediately give bail, either before the magistrate who issued the warrant or the judge of the county court. The defendant did not comply with either of these Code provisions'. Circumstances and conditions might arise under which it would be impossible for the officer to take his prisoner immediately before the proper official. For instance in Pepper v. Mayes, etc., 81 Ky. 673, Pepper was arrested under a warrant and brought before the justice at 11:30 p. m. Saturday, at which time he was crazed with drink and manifested his dangerous condition in the presence of the court by cursing an officer. It was then too late to try the accused before midnight, had he been in condition. We there held the justice of the peace was warranted in committing the prisoner to jail in the absence of bail. See also 5 C. J. 508; Note L. R. A. 1917F, 429; Pratt v. Hill, etc., 16 Barb. 303. The facts of the two cases are entirely different, as can readily be seen from the statement thereof. Defendant should have followed the directions of the warrant and taken plaintiff before the officer who had issued it. The evidence shows the judge was in his office at the time.

*557There was no evidence controvertingvthe statements made by plaintiff and his witnesses as to the occurrences on the morning of the arrest; this was probably due to the court’s ruling on the -subject. Upon a retrial, the evidence on this issue being the same, the court will direct the jury to find for -the plaintiff, but should defendant introduce contradictory, evidence the court will, under proper instructions, submit the case to the jury.

Wherefore the judgment is reversed for further -proceeding's consistent herewith.