Commonwealth v. Kennedy

136 Mass. 152 | Mass. | 1883

C. Allen, J.

If the defendant in the first case was drunk and brawling in a railroad car, and persisted in continuing that offence by returning to the car after being removed therefrom, and by refusing to leave when requested to do so by the officer, the jury might well find that the arrest which followed was not for such refusal, but for continuing his offence. The statement by the officer to him, that he would be arrested unless he went out of the car, does not show that the arrest was for such refusal. As in the case of a criminal forcible entry and detainer, where the offence would cease with the abandonment of possession, the refusal to leave the car was coincident with the continuance of the offence, and by leaving the car the aggravation of the offence of drunkenness would cease. In cases of minor crimes, where the continuance of the offence can be checked by other means, it may sometimes be highly proper to omit making an arrest or a formal prosecution. The fact that the arrest in this case would have been waived if, upon request, this defendant had left the car, that is, if he had discontinued the offence of being drunk in a public place, which warranted his arrest without a warrant, cannot in any just sense be deemed to show that the arrest was not for the commission and continuance of the offence. The jury might naturally infer that the arrest was for being drunk, under the circumstances stated, and that both of the defendants knew that it was for that cause.

The answer of the officer upon his re-direct examination was proper, in explanation of his testimony on cross-examination; and, besides, it appears to have been immaterial.

Exceptions overruled.