Page images

*4. The writ may also be void for many other reasons, (*174] such as that it is tested of a Sunday or other day which is dies non for such process, or that it was issued without compliance with some statutory requisite which is a condition precedent and shows the defect on its face; or for other defects, which will be more particularly referred to hereafter. It is enough to repeat here that the writ which an officer can justify himself in serving must be a valid writ and that those concerned in issuing it must be able by the law to justify its issue.

Arrest Without Warrant. There are sometimes circumstances which in themselves are a command of arrest as imperative as could be any command by official anthority. These cases, in general, are plain, and they rest upon the inherent right of society to defend itself against sudden assaults, not by regular proceedings merely, but, in emergencies, by the spontaneous action of its members.

In all civil cases it is not supposed that public justice will suffer, or that any one can be serionsly injured or incommoded by any such delay in arresting a wrong-doer as may be requisite to obtain proper legal process. Neither, in general, can any similar delay be supposed prejudicial in the case of minor offenses against the State. But it may be reasonably expected that a felon will flee from justice if an opportunity is afforded him, and also that, if he knows he is suspected, he will do what may be in his power to obliterate the evidences of his crime. In these circumstances are found forcible reasons for prompt action in his arrest; but the reasons would be still more imperative if the criminal conduct was discovered before the crime was complete. If one were detected in maliciously setting fire to his neighbor's house, the moral obligation to make immediate arrest, and the legal right to do so would be equally plain. They might not be so imperative or so clear in the case of some other felonies, but the difference would be in degree only.

*When the propriety of an arrest without process is in [*175] question, the problem always is, how to harmonize the individual right to liberty with the public right to protection. Where process issues, the proceedings required in obtaining it constitute a sufficient precaution against causeless arrests: the magistrate decides on the facts presented to him that sufficient

reason exists. But if one without this protection were to arrest upon his own judgment, he ought to be able, when called upon, to show that his judgment was warranted. To do this he should show either

1. A felony actually committed ; and

2. Facts that have come to his knowledge which justified him in suspecting the person arrested to be the felon; or

3. A felony being committed, and an arrest to stay and prevent it."

This seems to be the least that could be required; the fact of felony, and personal knowledge of the guilt of the particular person, or reason for suspecting him; and if one errs in these particulars, it is better that he be left to take the consequences, than that they be visited upon an innocent party who is improperly arrested.' But a peace officer may properly be treated with more indulgence, because he is specially charged with a duty in the enforcement of the laws. If by him an arrest is made on reasonable grounds of belief, he will be excused, even though it appear afterwards that in fact no felony had been committed.:

* Ruloff o. People, 45 N. Y. 213; Keenan v. State, 8 Wis. 132; Neal 0. Joyner, 89 N. C. 287. A citizen may arrest on fresh pursuit one seen pocket-picking. Kennedy o. State, 107 Ind. 144. If one causes an officer to arrest, without warrant, a person for a misdemeanor not committed in the officer's presence, he cannot escape liability unless the charge is well founded. McGarrahan 0. Lavers, 3 Atl. Rep. 592 (R: I.); Taaffe v. Slevin, 11 Mo. App. 507. So if one, not an eye witness, causes an officer to arrest for such misdemeanor, he is liable. Ross o. Leggett, 28 N. W. Rep. 695 (Mich.) Where an officer arrested a woman and took her to the station on no other justification than that of vague hearsay and suspicion of a third person that she had had some. thing to do with making way with a missing person, the officer himself making no inquiry whatever into the facts, the arrest was held totally un.

warranted. Somerville 0. Richards, 37 Mich. 299. An arrest by a constable out of his jurisdiction must be regarded as an arrest without warrant, even though he may have a warraut which commanded the arrest within his jurisdiction. Krug o. Ward, 77 Ill. 603.

2 Holley o. Mix, 3 Wend. 350; Com. monwealth o. Deacon, 8 S. & R. 47; State o. Roane, 2 Dev. 58; Brockway 0. Crawford, 3 Jones N. C. 434; Eanes 0. State, 6 Humph. 53; Long o. State, 12 Geo. 293; Reuck 0. McGregor, 32 N. J. 70; State o. Holmes, 48 N. H. 377. 3 Marsh o. Loader, 14 C. B. (X. s.)

Lawrence 0. Hedger, 3 Taunt. 14; Davis o. Russell, 5 Bing. 354, 365; Wakely o. Hart, 6 Binn. 316; Burns 0. Erben, 40 N. Y. 463; Holley o. Mix, 3 Wend. 350; Robąn 0. Sawin, 5 Cush. 281; Drennan 0. People, 10 Mich. 169; State o. Underwood, 75 Mo. 230. In such cases probable


Forcible breaches of the peace, in affrays, riots, etc., are placed, as regards arrest without warrant, on the footing of felonies. The reason for this is found in their tendency [*176) to lead to serious, and perhaps fatal injuries.' Peace officers are also allowed, without warrant, to enforce the ordinary laws of police by the arrest of vagrants, and drunken and disorderly persons, detaining them for the action of the proper police magistrates.' And it is said, by an old writer on criminal law, that "it hath been adjudged that any one may apprehend a common, notorious cheat, going about the country with false dice, and being actually caught playing with them, in order to have him before a justice of the peace, for the public good requires the utmost discouragement of all such persons, and the restraining of private persons from arresting them without a warrant from a magistrate would often give them an opportunity for escaping.” These remarks will apply to professional gam

[ocr errors]

cause is a question of law depending on the reasonable belief of the party. McCarthy v. DeArmit, 99 Penn. St. 63.

* Respublica 0. Montgomery, 1 Yeates, 419; City Council o. Payne, 2 N. & McCord. 475; State o. Brown, 5 Harr. (Del.) 505; Phillips o. Trull, 11 Johns. 487; Vandeveer 0. Mattocks, 3 Ind 479. The officer may so arrest to prevent a threatened breach of the peace. Hayes o. Mitchell, 80 Ala. 183. But not for a past breach not committed in his presence. Quinn o. Heisel, 40 Mich. 576. Way's Case, 41 Mich. 299; People 0. Haley, 48 Mich. 495. So generally as to past misdemeanor; People o. McLean, 36 N. W. Rep. 231 (Mich.) But he may upon fresh pursuit for an offense less tban felony though not committed in his view. State o. Sims, 16 S. C. 486. Even if the offense is committed in his presence he may not delay five hours before attempting to arrest. Wahl e. Walton, 30 Minn. 606. A deputy sheriff cannot arrest for past misdemeanor where a warrant has been issued if he does not have it in his possession at the time. People o.

McLean, 36 N. W. Rep. 231 (Mich.) An officer is not justified in arresting, upon a letter or telegram from a peace officer of another county or state, without warrant where a misdemeanor is charged. Manning v. Mitchell, 73 Ga. 660, or an offense not a crime by the laws of his own state. Malcolmson 0. Scott, 56 Mich. 459.

2 Beville o. State, 16 Tex. App. 70; Wiltse o. Holt, 95 Ind. 469. But the fact that one at the time orderly has been recently intoxicated is no justification for arrest without warrant. Newton v. Locklin, 77 III, 103. In Massachusetts if an officer arrests for drunkenness one in fact pot drunk, he is liable civilly. Phillips o. Fadden, 125 Mass. 198., but not crimin. ally. Com. o. Cheney, 141 Mass. 102. If a peace officer arrests one without warrant on an oral complaint by another, and handcuffs and confines him, he will be held liable for false imprisonment, if it turns out that he was innocent. Griffin o. Coleman, 4 H. & N. 265. See Ross o. Leggett, 28 N. W. Rep. 675 (Mich.)

3 Hawk P. C. 2 c. 12, & 20. That

[ocr errors]


blers and cheats on the public thoroughfares; if they are found plying their unlawful vocation there, they are properly and justly classed with night walkers and other persons without reputable means of support, and who prey in one form or another on the public.

Imprisonment of Insane Persons. The imprisonment of persons alleged to be insane is likely, in some cases, to lead to injustice, and demands some special attention. In the vast majority of cases in which persons are restrained of their liberty for snpposed insanity, there has been no adjudication whatever. The father discovers that his child is disordered in mind, and he places him in an asylum. The husband does the same with his wife, or the wife with her husband. Generally this is proper and commendable, if affection or a sense of duty has prompted and governed the action ; but when there is no legal supervision, it is

always possible that the motive may be a base instead of [*177] a just *one. The difficulty of obtaining redress in such

cases is sufficiently serious to require most careful consideration for the general subject.

The rights and liabilities of parties in the cases of such confinement may be considered under two heads:

1. When there has been no adjudication.

2. When an adjudication has taken place and a judicial declaration of insanity has resultedd.

Under the right of self-defense there must undoubtedly be authority to seize and restrain any person incapable of controlling his own actions, and whose being at large endangers the safety or property of others.' Humanity requires that the restraint should be suited to the unfortunate condition, and shonld have in view the restoration to reason, if that be possible ; but regulations for that purpose must be by the arrangement of parties concerned, or they must be prescribed by law. Where an arrest is made merely for protection, it is only required of the person making it that he treat the person arrested with the utmost


one in the night time, disobeying the orders of the city board of health, in a manner dangerous to the public health, may be arrested without war. rant, see Mitchell 0. Lemon, 34 Md. 176.

Every man for his own protection may restrain the fury of a lunatic. Brookshaw v. Hopkins, Lofft. 235. This right ceases when the seizure is no longer reasonably necessary. Keleher o. Putnam, 60 N. H. 30.

kindness and consideration consistent with the safety of others, and that he do no more in imposing restraint than protection requires. But he must make sure of his facts, and be certain that they will justify him. As in arresting a supposed felon, so in this case, it is not an honest belief on his part, or purity of motive, that can afford protection: he assumes to be both accuser and judge, and the consequences of any error are very properly visited upon him.' If there is no insanity, the party arrested may rightfully resist, even to the extent of inflicting fatal injuries; and he may recover exemplary damages for the injury and disgrace which he suffers in the attempt to fix upon him the stigma and the disabilities of mental unsoundness.

But not every insane person is a dangerous person. Nothing can be more harmless to others than a person afflicted with some of the milder forms of insanity. If self-protection, and not the benefit of the supposed insane person, is made the justification for confinement without adjudication, it must wholly fail in such cases.' It is not insanity that excuses, but insanity of a type that *impels the person to acts which endanger the [*178 rights of others. If the State has made provision for the care of insane persons, it will be proper to commit them to such asylums as may have been provided, but if either private individual or officer shall take the responsibility of doing this without previous adjudication, he must take on his personal responsibility the risk of all errors.

It is sometimes provided by statute that no one shall be restrained of his liberty as an insane person except upon the certificate of a reputable physician, or, perhaps, of more than one. Such a certificate may prevent injustice in some cases, but as a physician is not a judicial officer, and has no judicial powers, it is not an adjudication and cannot be given the force of law so as to protect parties who imprison one not insane in fact. It might assist in showing that the parties had acted in good faith, and therefore ought not to be visited with exemplary damages ;


Look o. Dean, 108 Mass. 116; S. C. 11 Am. Rep. 323. The fact that a deputy constable acted under the orders of his principal is no excuse. Id.

* Anderson o. Burrows, 4 C. & P. 210; Scott o. Waban, 8 Fost. & Finl.

328: Look o. Dean, 108 Mass. 116; S. C. 11 Am. Rep. 323; Lott v. Sweet, 33 Mich. 308. See Commonwealth o, Kirkbride, 3 Brewster, 586.

3 See Underwood 0. People, 32 Mich. 1; S. C. 20 Am. Rep. 633.

« PreviousContinue »