108 Mass. 426 | Mass. | 1871
1. The evidence that the person assaulted was, at the time of the assault, and with the defendant’s knowledge, acting as a police officer, and wearing the uniform and badge of such an officer, was competent and sufficient evidence of his official capacity to be submitted to the jury. The want of similar proof as to any other time might affect the weight, but not the competency, of this evidence. Commonwealth v. Kane, ante, 423. Sawyer v. Steele, 3 Wash. C. C. 464. Plumer v. Brisco, 11 Q. B. 46. Regina v. Vickery, 12 Q. B. 478. Regina v. Murphy, 8 C. & P. 297, 310.
2. A constable has the right, by virtue of his office, and without any warrant, to enter any house, the door of which is unfastened, and in which there is a noise amounting to a breach of the peace, and to arrest any person engaged in an affray or in committing an assault in his presence, and hold him by suitable means for a reasonable time to prevent any further assault; and an assault by such a person upon the officer so arresting and holding him is an assault upon an officer in the discharge of his duty. Commonwealth v. Hastings, 9 Met. 259. Any affray or assault is a disturbance of the peace, and might properly be so called by the officer in answering the defendant’s inquiry as to the cause of his arrest. The final instruction given to the jury was therefore correct and sufficient.
3. The subsequent failure of the officer to make a complaint before a magistrate against his prisoner for the offence for which he had arrested him — whatever effect it might have to render the officer hable to an action of trespass by the latter—cannot affect the question whether his assault upon the officer was a breach of the criminal law. This question depended upon the facts and circumstances existing at the time when the assault was made. One ground of the doctrine of trespass ah initia, which, for reasons of public policy and the protection of the citizen against oppression, will not allow one, who abuses an authority given him by the law, to shelter himself under such authority when sued by the person injured by the abuse, is, that the citizen is bound to submit without resistance to its lawful exercise. Esty v. Wilmot, 15 Gray, 168,169. The doctrine of trespass ab
It would seem, from the bill of exceptions, that the only cause for the arrest of the defendant, upon which the Commonwealth relied at the trial, or was allowed by the court to sustain the indictment, was a disturbance or breach of the peace. But if the defendant, at the time of assaulting the officer, was under arrest because he had been found in a state of intoxication committing a breach of the peace, the result must have been the same. By the St. of 1869, o. 415, § 42, if any person “is found in any place in a state of intoxication committing a breach of the peace, or disturbing others by noise,” any constable or police officer ‘ shall without a warrant take him into custody, and detain him in some proper place until, in the opinion of such officer, he is so far recovered from his intoxication as to render it proper to carry
Exceptions overruled.