delivered the opinion of the court:
This was a suit brought by appellee, Estella A. Gibson, against appellant, in the superior court of Cook county. The declaration consisted of two counts. The first count alleged false imprisonment, and the second, malicious prosecution. The cause was tried before a jury, and a verdict rendered for $5000, $2500 of which was remitted ánd judgment entered for the sum of $2500, from which an appeal was prosecuted to the Appellate Court, where the judgment of the superior court was affirmed, and a further аppeal is now prosecuted to this court.
Appellant conducted an employment office in the city of Chicago. Appellee was his clerk and in charge of what is termed by the evidence “the female department.” For that deрartment she kept a certain book, which contained merely the list of persons wanting female help, their locations and street numbers, the class of work and the wages proposed to be paid. Appellee had been thus employеd about six weeks. On Saturday evening, May 25, 1901, she took the book in question home with her, claiming that it was for the purpose of sewing the covers on the index to it and completing the index to the entries of orders. The appellant suspected that she had taken this book for the purpose of copying and furnishing to his competitors the entries therein contained. He missed the book the same evening that appellee took it and sent a clerk to recall appellee to the officе, who claims that when he saw appellee she directed him to return to appellant and say to appellant that he did not see her. On Sunday afternoon she returned to the office with the book. Appellant was there and requested her to take a seat. She offered to show him the book and to tell him what she had been doing with it. Appellant immediately called an officer, directed him to arrest appellee and accompanied the officer and appellee to the police station, where appellee was confined over night. Appellee claims that the door of the room in which she was detained until the officer arrived was locked, while the evidence on the part of appellant tends to show the contrary. On Monday morning, after appellee had been taken to the police station and confined over night, appellant made a complaint charging appellee with larceny of the book in question. The cause was heard the following day and appellee was discharged, and the suit at bar followed.
Appellant was not an officer, and it is not contended that there is no evidence in the record fairly tending to support the first count, being the сount for false imprisonment.
The errors relied upon relate wholly to the instructions. The complaint is, that instructions 16, 17, 18, 19 and 20 offered by appellant were not given as offered, but were modified by the court and given as modified. Instructions 16, 17 and 18 relate to the elements of probable cause and good faith on the part of Enright. The sixteenth, as offered, defined probable cause, and advised the jury that unless they believed that the appellant acted without probable cause and with malice they should find him not guilty. The seventeenth, as offered, advised the jury that the burden of proof was upon appellee to show that the defendant did not have probable cause, and that if she failed to do so the jury should find the defendant not guilty. The eighteenth, as offered, was, in effect, that if Enright acted in good faith, upon evidence, whether true or false, which was sufficient to create in the mind of a reasonably cautious man a reasonable belief of guilt of the plaintiff, then they should find the defendant not guilty. The nineteenth, as offered, was that the plaintiff must show that the defendant acted without probable cause and with malice, and that if the jury believed, from the evidence, there was probable cause and no malice was shown, they should find the defendant nоt guilty. The twentieth, as offered, advised the jury that it was not necessary for appellant to prove the actual guilt of appellee of the crime of larceny as bailee, but that if he acted upon facts and circumstances known to him, аnd they were such as would lead a reasonable and prudent man to believe her guilty, and that he did believe her guilty, then the jury should find the defendant not guilty. All these instructions, as offered, were general, and unless modified would be applicable alike to each count of the declaration. The court refused them as offered, and modified each of them by restricting its application to the second count of the declaration. As modified and given they stated correct principles of law аpplicable to the charge of malicious prosecution.
Counsel for appellant, however, take the position that the instructions are also applicable to the charge of false imprisonment contained in the first cоunt, and in support of that contention cite Harpham v. Whitney,
jJFrom the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence; so, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he hаs reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. The policy of the law in this State seems to be that a citizen must not be permitted to take the law into his own hands and to make arrests upon suspicion or upon probable cause of guilt. If the citizen knows a crime has been committed it is his duty to appear before a magistrate and make a complaint, in which lie states that the crime has been committed, and in which he may state, upon reasonable information and belief, that the party named is the guilty party, whereupon the magistrate will issue his warrant directed to all sheriffs, coroners and constables in the State, or,, in case of emergency or in the absence of such officer, may direct the same to a private individual. When this course is pursued ample protection is given' to the citizen who makes the complaint or who may make the arrest under the warrant, and to the accused рerson named in the warrant. If the private citizen, without observing these formalities of law, may constitute himself an officer and jailer upon mere suspicion or probable cause of guilt of the accused person, it would place in the hands оf the vicious or ill-disposed a power the exercise of which might result in a greater evil than might arise from the occasional escape of guilty.parfies before the officers can be called or the forms of law observed. Such has been the view of this court from an early date, and is clearly expressed in Dodds v. Board,
The instructions, as offered, fall far short of meeting the requirements of the rule as above announced. They contain no reference to the actual commission of a felony or оther crime by any person, nor are they predicated in any degree upon the guilt of the appellee of such crime, and therefore, as a justification for the false imprisonment, were wholly insufficient and inapplicable to that cоunt and charge.
Appellant argues that these instructions should have been given because appellee, in the first count of the declaration, alleges that the arrest and false imprisonment were without any reasonable or probable cause. That allegation was not necessary, and doubtless was, as it should have been, treated by the trial court as surplusage. Johnson v. VonKettler, supra.
We think there was no error in the modification of the instructions, and that the judgment of the Appellate Court should be affirmed, which is accordingly done.
Judgment affirmed.