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interference with the liberty of innocent persons. The law, therefore, makes it a positive condition that before any one, whether he be a citizen or officer, may arrest another for a felony not committed in his presence, the felony must in fact have been committed. . . . In one respect only does the law recognize any difference between the private citizen and the public officer paid to keep the peace, if a felony has in fact been committed, the officer may arrest any one who he has reasonable ground to believe is the guilty party, while a citizen may arrest only the person who is actually guilty. Thus the citizen must guarantee not only the commission of the crime but the identity of the criminal, while the officer, so long as the law has actually been violated, may take a chance as to the identity of the perpetrator of the offence. Now, the police invariably interpret the law to mean that they may arrest anybody who they have reasonable cause for believing has committed a felony,· but of course the statute gives them no such power. The felony must have been committed; the "reasonable cause" refers only to the identity of the criminal.

This, however, does not worry the average policeman at all. He sees the burglar coming out of the area with his bag, promptly pounces upon him and hales him off to the precinct house, in spite of the burglar's protests and expletives. If a burglar prove refractory he is clubbed into submission, or if he attempts to run he may be shot in the leg. Now suppose that on reaching the police station the burglar turns out not to be a burglar at all but the family doctor? Or a late caller upon the cook? Or a gentleman who has mistaken some one's else area for his own? Of course no felony has been committed. The policeman had no right to make the arrest.. Assuming that the house had been burglarized, the officer beyond a doubt had reasonable cause for a hastily formed opinion that the man in the area was the guilty party and had a right to make the arrest; but in law he makes this assumption at his peril. If he is wrong, the victim has a good cause of action against the policeman for false arrest. But the execution following his civil judgment against the latter will probably be returned nulla bona by the sheriff, and he will have to pay for his own medical treatment and legal advice.

An attempt has apparently been made by the Legislature of New York State to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." The statute (Penal Code) reads as follows: "Section 179. May arrest at night, on reasonable suspicion of felony. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterwards appear that a felony had been committed but that the person arrested did not commit it." This statute clearly stultifies itself. The writer is not aware of any judicial interpretation of its meaning up to the present time.

1082. COMMONWEALTH v. CAREY

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

12 Cush. 246

1853

THIS was an indictment for murder, tried at Cambridge, June 2, 1851, before the chief justice, and FLETCHER and BIGELOW, JJ., charg

ing the prisoner with the murder of George Heywood, at Lincoln, in the county of Middlesex, the 27th day of December, 1850. The evidence for the government established substantially the following facts: Mr. Heywood, the deceased, was a constable of the town of Lincoln, and keeper of the station-house of the Fitchburg Railroad, in said Lincoln. On the day of the homicide, the prisoner arrived at said station by the up-train, he being the only person who stopped at that place from that train. The station-house is in a part of the town somewhat distant from any dwelling-house, or other building. The conductor of the same train of cars brought a letter to Mr. Heywood from a keeper of another station on the same road, at Waltham, some ten miles distant, between Lincoln and Boston. The following is a copy of the letter:

"Waltham Depot, December 27th, 11 o'clock. Mr. Heywood - Dear Sir: The man that broke into Stony Brook depot last week, I think, has just bought a ticket for Lincoln. . . . Do not let him slip. I know it is the one. Yours in great haste. W. A. Blaisdell."

Mr. Heywood. . . met and took along with him a young man of the neighborhood. Upon their arrival at the station, they found the prisoner inside the ticket-office, no other person being in or about the building. The testimony of the young man upon this point was as follows: "When we got there, looked in at the front windows and saw a man in the ticket-office. . . . Mr. Heywood asked him how he came to be in the ticket-office: he said that he found the door open, and, taking a chisel out of his pocket, said that he found it upon the floor.... Mr. Heywood then told him that he was his prisoner. . . . Carey then demanded of Mr. Heywood to show his authority for arresting him; Mr. Heywood replied that he was a constable, and had a right to keep him; . . . Carey then jumped out of the window, head foremost, carrying the sash with him." . . . After leaping through the window, Carey ran about two hundred yards in the road and swamps, closely pursued by Heywood and several schoolboys, Carey all the time carrying in his hand a pistol, which he once or twice pointed at his pursuers, but said nothing. He finally made a stand in a meadow near the borders of the woods, and, turning round, told Heywood, who was within twenty feet of him, to stop and go back, or he would shoot him. Heywood stopped, but refused to go back. Carey took aim and fired. Heywood received the bullet on the left side of the abdomen, of which wound he died after lingering about eighteen hours. There was no evidence that anything was stolen from the ticket-office on the day of the arrest, or that Heywood at any time thought there was. . . . After the evidence was all in on behalf of the government,

B. F. Butler & B. Dean, for the defendant, submitted to the court the following propositions, with the authorities, and prayed that they might be passed upon, before opening the defence: 1. The arrest and

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detention of Carey by Heywood was not warranted by law, because the offence with which he was charged was a misdemeanor only, it being a breaking and entering, which was only a trespass at common law, and is not made felony by statute. . . . 2. If the offence with which Heywood charged Carey be a misdemeanor only, Heywood could not legally arrest and detain him therefor; because, even if he were a constable, he had no power to arrest him for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offence. . . . 3. Where the arrest is not warranted by law, and the person arrested kill the aggressor, it is manslaughter only.

J. H. Clifford (Attorney-General), and A. W. Farr (DistrictAttorney), contended: 1. That, although perhaps not technically a felony according to the common-law definition, still, that the breaking and entering in the present case, with the manifest intent to steal, was such an offence as would justify a constable in making an arrest. 2. That a constable has a right, and it is his duty, to arrest without a warrant, upon reasonable suspicion of felony. 3. That the letter from Blaisdell contained what, to a common mind, unacquainted with legal technicalities, furnished reasonable ground of suspicion that a felony had been committed by the prisoner, and justified the arrest. The following authorities were cited by the Attorney-General: . . . Beckwith v. Philby, 6 Barn. & Cres. 635; Samuel v. Payne [supra, No. 1076]; Davis v. Russell, 5 Bing. 354; Rohan v. Sawin [supra, No. 1080]; and the St. of 1804, c. 143, declaring breaking and entering with intent, &c., to be a felony;

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SHAW, C. J. then stated that the Court were of opinion, and proposed to instruct the jury, that if a prisoner is unlawfully arrested, and if in resisting the arrest, or attempting to escape, he takes the life of the person so arresting him, . . . it will, in contemplation of law, be manslaughter..

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Upon the question of the legality of the arrest, the opinion of the Court was, that any person, whether a police-officer or a private person, may lawfully arrest any one guilty of a felony, with a view to bring him before a magistrate, that proceedings may be further taken to bring him to punishment. There is this difference, however, that a private person, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested. But if a constable or other peace-officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful. Nor is it necessary, when a third person makes a complaint to a peace-officer against a person, and gives him in charge to the officer,

that the accusation should in terms technically import a felony; but when the language in its popular sense would import such charge, it is sufficient; as, where one says to a peace-officer, I wish you to take such a person in charge for having in his possession counterfeit bills, the natural import is, that he intends to charge the party accused with having in his possession counterfeit bills, knowing them to be counterfeit, and with an intent to pass the same; without which incidents such possession would be innocent, and import no criminal charge at all.

But the Court were further of opinion, that a constable or other peace-officer could not arrest one without a warrant, for a crime proved or suspected, if such crime were not an offence amounting in law to felony. This is the old established rule of the common law, adopted and acted upon in this Commonwealth, by which Courts of justice are bound to be governed, until altered by the Legislature; that anciently there was a broad and marked distinction between felony and misdemeanor, the former being attended at common law with forfeiture of all the offender's goods; that though, by the statutes of this Commonwealth, and especially by the Revised Statutes, the line of distinction between felonies and misdemeanors was in a great measure obliterated, and in many instances the law regarded as misdemeanors offences of a greater moral turpitude than many felonies, yet it had not changed the rule in question; though perhaps it might be more wise in the Legislature to make the rule in question applicable to offences measured by a different standard of aggravation, as by being punishable in the state prison, or otherwise.

The Court further held, under this rule, and as applicable to this case, that if Mr. Heywood suspected, or had reasonable cause to suspect, and acted on the suspicion, that the person had stolen money, or any other property, from the ticket-office, inasmuch as such stealing would have been larceny, and of course felony, the arrest was lawful, and the homicide committed by the person in attempting to escape would be murder, and not manslaughter; and that this would be a question of fact for the jury. But, further; that the breaking open of the ticket office though with an intent to steal, but without in fact stealing, was a misdemeanor, and not a felony, and the arrest of the prisoner for that offence, or on a suspicion and belief, by a peaceofficer, that he had committed that offence, would not be a lawful arrest. It was the breaking of an office in the daytime, and came under the provisions of Rev. Sts. c. 126, § 13. . . . If the deceased, therefore, in the present case, although legally qualified as a peace-officer, understood, suspected, and believed only that the prisoner had broken open the ticket-office, though with an intent to steal, and, acting upon that knowledge, suspicion, or belief, arrested the person without a warrant, it was an unlawful arrest.

In regard to the letter sent by Blaisdell to the deceased, the Court

were of opinion that it did not charge a felony, so as to make the arrest lawful without a warrant; it did not state or imply that the prisoner had stolen anything from the Stony Brook depot. Breaking open the depot would, of itself, be an offence for which the perpetrator would be liable to a severe punishment, but in character it was a misdemeanor, and not a felony; and, therefore, charging the prisoner with having broken open that depot did not directly, or by implication, charge a felonious offence, for which he could lawfully be arrested without a warrant. It is distinguishable from the case before mentioned, of giving one in charge for having counterfeit notes in his possession, because that charge necessarily implies a guilty knowledge and a guilty purpose, which, if they make the act criminal at all, make it a felonious one. Such were held to be the rules of law under which the Court determined that the case must go to the jury. . . .

The Chief Justice then charged the jury in conformity with the foregoing rulings, and they returned a verdict of guilty of manslaughter.

1083. SNEAD v. BONNOIL

COURT OF APPEALS OF NEW YORK. 1901

166 N. Y. 325, 59 N. E. 899

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1900, affirming a judgment of $500 in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.

This was an action for false imprisonment. . . . It appeared that two police officers, of whom the defendant was one, without a warrant, arrested the plaintiff upon the suspicion that he was engaged in the commission of a felony. According to the plaintiff's evidence, it occurred in this wise. On the 8th of November, 1893, he took, in a satchel, some articles of silver and jewelry, which were rightfully in his possession, to a pawn shop and asked for a loan of money. Not obtaining upon them as much as he had asked, he left the shop and with his articles was returning to his home, when the police officers came up behind him and touched him on the shoulder: saying, "What have you got in that bag?" The plaintiff turned, saw two men, who were strangers to him, and replied, "None of your business: take your hand off from my shoulder." The defendant then said, "We are officers and you are under arrest." The plaintiff asked, "What for?" It was replied, "Well, we want to know what you have got in that bag." The plaintiff asked them to show their authority for arresting him and offered to take them to his house and to prove to them that the property in the bag belonged to him. The men refused, with abusive language and treatment, handcuffed him and took him to police headquarters. He was locked up for the night and, on the morning of November 9th, was arraigned by