| Mass. | Mar 23, 1887
The plaintiff had been arrested by the defendant, who was a police officer, by virtue of the Pub. Sts. c. 207, § 25, which permit the arrest of an intoxicated person in certain cases without a warrant, and further require that such person shall be “ kept in custody in some suitable place until he is so far recovered from his intoxication as to render it proper to carry him before a court or trial justice. The officer may then make- a complaint against him for the crime of drunkenness.” While the St. of 1869, o. 415, § 42, uses the phrase “ shall ” arrest, and the phrase “ may ” arrest is found in the corresponding section of the Public Statutes, no different signification is to be attributed to the two phrases. It is still the duty of the officer-to make complaint after having arrested without a warrant. Phillips v. Fadden, 125 Mass. 198" court="Mass." date_filed="1878-07-18" href="https://app.midpage.ai/document/phillips-v-fadden-6419336?utm_source=webapp" opinion_id="6419336">125 Mass. 198. Commonwealth v. Cheney, 141 Mass. 102" court="Mass." date_filed="1886-02-23" href="https://app.midpage.ai/document/commonwealth-v-cheney-6421939?utm_source=webapp" opinion_id="6421939">141 Mass. 102.
There was evidence that, on the Monday after the arrest, on account of a severe flood and the absence of the trial justice from Dedham, no court was accessible to which the complaint could be made; that the plaintiff was informed of this by the defendant ; and that thereupon the plaintiff requested to be and was discharged, and no complaint was made against him.
The learned judge who presided at the trial was requested to instruct the jury that, if the plaintiff consented to his discharge without being complained of before a court, in a case where he was arrested without a warrant, and where, but for such request
This instruction was substantially that given by the Superior Court as reported in the cases of Brock v. Stimson, 108 Mass. 520" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/brock-v-stimson-6416703?utm_source=webapp" opinion_id="6416703">108 Mass. 520, and Phillips v. Fadden, ubi supra. In neither case was it necessary in this court carefully to consider the point here presented, as the defendant was in each case the excepting party, and the instruction given was sufficiently favorable to him.'
The plaintiff argues that, in the case at bar, his consent or request was obtained by the procurement of the defendant and unfairly. Undoubtedly when a party is under arrest, any agreement or arrangement that he. may make to waive any further proceedings, and to release any damages he may be entitled to, if such proceedings are not taken, is one to be carefully scrutinized. It would be a question for the jury to decide, whether it was fairly and intelligently made, or whether it was procured by false representations, or by any coercion exercised by means of the fact that the party making it was then under arrest. If so procured, the party would not be bound by it, and, if the case had been thus submitted, the defendant would have had no just ground of complaint. But the inquiry which the defendant desired to present was independent of these considerations; and the ruling of the court can only be interpreted as holding that no agreement could be made between the plaintiff and the officer which would operate to release the latter from liability to the plaintiff if he failed to make complaint. Upon this more general ground, the plaintiff urges that there are really three parties to this transaction, the State, the plaintiff, and the defendant; that, the State having for public reasons, by positive statutory law, required the officer to take the person arrested before a court, to discharge him without so doing was to commit an offence; and that the plaintiff’s consent to the commission of such an offence, or to release damages therefor, was wholly void. It may be easy to conceive a case where, even if the party arrested consented that no complaint should be made, and to release any damages on account thereof, the officer might be properly the subject of just' animadversion if he failed to make it. But the great object of the statute is to provide proper safeguards for those arrested without
We are therefore of opinion, that, if the plaintiff requested or consented to his discharge, intending thereby to release any damages on account oí a failure to make complaint, and such agreement was fairly and intelligently made, he is not entitled to damages on account of such failure; and that the jury should have been thus instructed. Exceptions sustained.