35 F. 116 | U.S. Cir. Ct. | 1888
(charging jury.) It is not the least doubtful on the-facts of this case that an enormous outrage has been committed against the plaintiff’s right of personal liberty. That which distinguishes our ■ Anglo-Saxon civilization most of all is its absolute guaranty to every citizen against arbitrary arrest. The only faith which he can have in that. guaranty comes from his reliance on the ministers of the’law to enforce it. His only remedy, short of that individual redress by combat which the-law denies him, is the verdict of a jury against the wrong-doer, and that verdict you cannot withhold, if we have the wrong-doer here: No language of mine can adequately express the just indignation which every English-speaking judge and juror must feel at the recital of such methods as the detective Anthony confesses to have taken about this arrest, even if they had been taken against McCall, the real culprit, whom he was seeking. His audacious expression upon the witness stand of his conviction that “cold iron”—as he called the manacles with which he bound the plaintiff—was the best reliance for producing that “friendliness” of disposition of his victim, of which he boasted as a result of his skill in this case, shows that he is as cruel in his instincts as he is bungling in his work. That he is incompetent and incapable of appreciating the legal rights of those whom he may be called upon to arrest in the course of his employment, and that he is thoroughly reckless of the limitations ■ imposed bylaw upon one engaged in'making arrests, is demonstrated by the facts of this case. Detective bureaus, detective agencies, and-deteefc
Now, bow was it here? A freeman was arrested, without complaint according to law, without the warrant of law, or any sort of pretense of legal procedure; was detained without authority of any magistracy; was locked up in a cell, without any commitment or other process, or any pretense of any; and was hurried away to another state, without legal arrest for that purpose, or any purpose, in irons, .to find at the end that he was not the man wanted; that there was no accusation against him, legally preferred or otherwise; and that, so far as this proof shows, the only justification for the arrest was that he had traveled on the same steam-boat upon which the real culprit was supposed to have traveled. The stupid detective had not the excuse of the slightest resemblance of the two men to each other. But, if he had taken the right man, his proceeding was none the less outrageous, and was so arbitrary and illegal that the fact of his being in pursuit- of a felon should hardly mitigate the wrong done to the rights of freemen by a willful disregard of the privilege of exemption from all arrest, except by due process of law, which means an accusation made before a proper tribunal, and a written warrant authorizing the arrest, unless it may be that, under circumstances not pretended here, there may be a temporary detention until a magistrate may be reached. In such cases it is the duty of the arresting party to carry his prisoner immediately before a magistrate of lawful competency for that purpose, to accuse him there according to the forms of law, and obtain the necessary magisterial sanction for any further detention. This temporary proceeding, without previous warrant, can only he resorted to where there is an urgent necessity for proceeding without the delay of procuring the warrant beforehand, and the detention can only last long enough to bring the prisoner before the magistrate for a proper inquiry. There was not the least excuse here for any departure from the regular method of proceeding. If the plaintiff, or the real culprit who was wanted, had been “located,” as this detective thought and reported him to be, nothing was easier than to have gone before the magistrate, made the accusation on oath, and, having procured the warrant, proceeded to the arrest. This not being done, the arrest was unlawful. So if, being otherwise arrested, ho was not immediately taken before a magistrate and accused, that was unlawful. The arresting officer cannot lock up and de
But it is argued that policemen can arrest without warrant, arid that the Chicago policeman—another “detective” he was, however—was “licensed” to do this thing. That is a mistake. . Policemen do not possess the power of arbitrary arrest more than other officials do. No man possesses it, or can possess it, under our laws. Policemen may arrest temporarily and carry before the magistrate, as others may, and, owing to tfee necessity for it, they may proceed without warrant under circumstances which would not justify others in doing so. Temporary arrest without warrant previously obtained is an extraordinary procedure, which the facts must justify in any one attempting it. Policemen justify it by the circumstances surrounding their employment, and the necessity for immediate action. But when the circumstances are such, as in this case, that no such necessity exists for immediate action, the arrest with- • out previous warrant cannot be made by a policeman any more than by others. Here was a supposed fugitive from another state pursued into Illinois. He was to be arrested for a crime long since committed in that other state. He had been “located,” according to the detective’s testimony. The state of Illinois'prescribed a special procedure for that kind of arrest, and none was lawful without it. The common “law of the land” prescribes a general and ordinary method in all cases, and that was not pursued. There was no necessity for a temporary arrest without warrant. A trap was laid to arrest a man who could have been arrested upon a warrant without difficulty. All the facts and circumstances necessary for a previously procured warrant were known, and detention for inquiry was unnecessary, once the arrest of this particular man had been determined upon,t It is true that, being arrested without a warrant, a subsequent legal procedure, by carrying him before a magistrate, would have saved this outrage by developing the fact that the wrong man was arrested, and would likewise have saved this lawsuit. But Anthony, with characteristic self-assurance and reckless self-reliance, assumed the function of determining that fact for himself. He did not, in his conceit,'doubt but that he had the right man, arid he had no need of mag
Now, gentlemen of the jury, is the defendant responsible for this trespass upon the right of a freeman to he always free, not only from wrongful arrest, but from wrongful accusation and wrongful punishment of the kind inflicted oil this plaintiff “without duo process of law?” 1 use this language in the sense that belongs to it by the traditions of our race, and that has been stamped upon it by our law. For it is my opinion that in the exaggerated attention we pay to mere political freedom—the more right to conduct the government—we are losing the sense of regard for personal immunity from interference by arbitrary power, such as has been exercised against the plaintiff, and, if not in this repulsive form, in a less degree often used against others who submit without more than a temporary protest. That the defendant is responsible to the plaintiff in the facts of this case there can be no doubt. We all know that the defendant did not, and none of us believe that its officials would, under any circumstances, authorize or sanction a proceeding like that which was taken against the plaintiff. Nevertheless, it employed Anthony as its agent, and is responsible for his incompetency and negligence in the line of that duty he was sent to perform in this case. The defendant lias proved much, very much, that should go in mitigation of damages, but not one thing by way of substantial defense. The pretense that Anthony was not its agent scarcely deserves any notice; but if he wore not, Thiol & Co. were its agents and Anthony theirs, and, being theirs, was that of the defendant likewise. Moreover, Anthony was in its direct employment in the sense that he was detailed to do its work, and sent to do this, as part of it. The order for desisting from the pursuit of McCall was given to avoid paying a reward, and was not absolute, in the end of the correspondence. But if it were, the defendant was still liable for sending an agent who negligently disobeyed its orders, and proceeded, notwithstanding the revocation of instructions, to execute them negligently. The release was absolutely void, and, under the circumstances, rather an aggravation of the damages than otherwise. The outrage of
I do not leave these questions to you, because no verdict would be rendered by you upon them for the defendant, and if a less intelligent jury should find such a verdict, on the facts of this case, it would be set aside by the court as unsupported, wholly, by any proof. Therefore, I direct a verdict for the plaintiff, on the undisputed facts of this case, and instruct you that the only question for you to decide is the amount of damages to be awarded by your verdict. But as to that the whole case is with you. Every fact and every circumstance is important to your consideration. If we had Anthony here I should say to you that it was a case for the severest application of the rule of punitive damages, and scarcely any verdict could be excessive,—not, at least, within his ability to pay, however large that might be. But he is not here., You must not allow the denunciation of his wrong, made from the bench, to influence you to the punishment of this defendant. It was not made for that purpose, but to show how uttlerly hopeless any defense made to this action must be, on the law of this case. The defendant did not authorize Anthony to proceed wrongfully, even as'against McCall, nor against this plaintiff at all. There is no proof that it even knew of Anthony ever-proceeding illegally in arrests, or that it was aware of his stupidity and incompetency in the matter of legal procedure to procure arrests, nor of his negligence in the matter of finding the right man. He was the agent of a regular bureau of detectives, and'the defendant no doubt relied on their employing competent men for the work; and so there is not the least evidence of negligence in employing him for the work. The defendant did not contrive the release or procure it, or otherwise wrong the plaintiff directly, and is only liable because one of its agents has done its lawful work in an unlawful manner, whereby the principal becomes liable, in law. It is not a case, therefore, for “smart money,” as the lawyers call it. But the plaintiff, there being no legal justification for his arrest, has a right at your hands to compensation in damages for the wrong done to him. The law has no delicate scales with which to measure it to him by exact rule as to amount. That all depends upon your sense of justice and fairness in view of'the extent of his injury. You may and should consider the direct expenses incurred by the plaintiff, his loss of time, his bodily suffering, his mental agony, his loss of reputation, the degree of indignity involved in the wrong done and the consequent public disgrace attending the injury. These and any similar elements of injury shown by the proof should be taken- by you as the basis-of the compensation, and such compensation cannot be diminished
on ’Motion roe new trial.
However it may have arisen, it is the settled practice in Tennessee, from time immemorial, so to speak, to follow the entry of a verdict with the immediate entry of the judgment of the court upon it, and in the same form as in this case was done. We cannot, therefore, however much we, might desire to put our record in a shape to allow a writ of error, resort to a practice in vogue in some of the states, perhaps, of entering only the verdict pending a motion for new trial, and thus, whore the'verdict is for exactly $5,000, as here, by an accumulation of interest carry the amount beyond the minimum prescribed as limitation to the jurisdiction of the appellate court. We need not then trouble ourselves with any inquiry whether this is the proper practice in entering judgments, and whether, if it be not, verdicts can bear interest, for, being an established local law, wo are bound to it by the practice conformity act, and cannot change it.
The objection made to the charge is that the question as to the validity of the release should have been submitted to the jury, it is best answered by a careful review of the testimony on that point. The defense against it was duress, which, whatever else may he said about it, is only an inquiry into the plaintiff’s state of mind when lie signed the release. How that a party is a competent witness, he may of course be asked as to the state of mind which is the subject of inquiry, and if be be a credible witness, whose testimony is believed, bis statement on tlio subject would be conclusive, particularly If the facts and circumstances corroborate his statement by being of that character which would, in our experience, produce that state of mind. Nevertheless, I should never have thought of directing a verdict on that issue upon the plaintiff’s own testimony, however credible I should take it to be, for the reason that his credibility would be solely for the jury to determine, as the learned counsel has argued. The fact that lie is a party in interest so discredits his testimony that at common law he would not be beard at all; and, while the statute confers the privilege of competency upon him, it does confer
Again, it is plain that this young man was never released in the open, unmistakable manner that should have been pursued, whatever other construction may be put upon the facts. When he left the office Anthony went with him, and when he came hack Anthony came with him. Meantime they had gone to examine his trunk left in St. Louis, or to find it, and finding it, there was an examination of its contents by Anthony. Next he was given a dollar or two to pay expenses of his lodging and board, hut with an “agreement” or “understanding” or “older” to return next morning, which he did promptly, as required by the arrangement, whatever it was. Then he was shown into a back room, where he remained until the release was signed, which had been in the mean time prepared by a lawyer, without any consultation or agreement with plaintiff that he would give such a release, or any request of him to sign one, or any negotiation such as usually precedes the entering into a,ny contract, verbal or written, where the parties act freely. Whatever else he did, there is no pretense that the plaintiff came bacli to that office to negotiate for, or enter into any contract with, his captors. Why should he come back at all if he wore a free man ? Why was he not given the liberty to go at will whither he wished? If money was to be, in justice, given to him to pay his way home or back to Chicago', either as compensation for the wrong done or in consideration of the release, why was it not given to him and he dismissed to regulate and control his own movements? An absolutely free man would have been thus treated, and he would have been placed upon an equality of freedom before making a contract with him for release. The law requires that this should have been done, even in those fiduciary relations already mentioned as analogies upon this subject of duress. Recognizing the necessity of this, the testimony of these witnesses proceeds on 'the theory that he was free to go at will and do as he pleased, and from beginning to end the whole proof is the suggestion of an apology for or an explanation of the facts, so as to conform to that necessary theory in order to support the release. Thus, without any formal discharge, it is assumed that he knew he was
Coming, then, to the signing of the release in the office of the “service” —as they call it—with this young man away from home, in a strange city, without friends or counsel, and his captors not taking any pains to help him to any advice except their own, not even the lawyer drawing the release for the captors being present to advise him, presented with a previously prepared paper about the terms of which ho was never consulted, about which “contract” there had never been one word of negotiation of any kind, for which there was not one cent of consideration paid, and only the miserable pretense of a nominal and technical consideration of one dollar, and signed there among his captors at their request, —under these circumstances, is it not useless, 1 say, to speak of submitting such facts to a jury on proof of the opinion of the captors that ho was not “frightened;” that he was “free,” because he knew that he was the wrong man; that it was read over to him; that ho made no objection, and such like circumstances? It seems to me so now, as when the trial was had. The detectives say the consideration for the release was the few paltry dollars doled out to him—not even five for the whole time—and his ticket to Memphis. Common humanity demanded that much, and a real generous repentance for the wrong done this man, and a desire for reparation, coupled with common humanity, would have produced a far more liberal treatment; and one of the worst features of this case is the parsimony with which ho was treated in that respect by his captors, who, with the same kind of pretense already described as to his “freedom” and “voluntary” actions, boast that he was “treated like a gentleman,” and so “acknowledged” to them. It is another circum-. stance to weigh against them on the issue of duress.
I need not cite the cases on the law of duress.. It is familiar to us all that they establish that ho who sets up a contract under such circumstances must show that it was fairly and voluntarily obtained.
As to the law of directing a verdict, I concede that it is very easy for the court to usurp the functions of the jury in exercising that power; and hero in Tennessee, whore the power is unknown to the state courts, and not permitted under any circumstances, perhaps it is difficult to reconcile counsel to any exorcise of it whatever. But the rule is well understood to be that, if, fairly looking at the testimony, there can be no reasonable dispute about the facts, the court will direct a verdict where it would not at all sustain one to the contrary if rendered by the jury. This means a dispute arising out of the proof, and a doubt about the facts, arising out of the credibility of witnesses, out of the conflicts of testimony, out of the variety of influences to he drawn from circumstances proven which are equivocal in their character, and out of a diversity of implications of fact from other facts. In all such cases, no matter what the judge thinks, the issue should go to the jury to have all such doubts resolved-by their verdict, and, no matter how slight the doubt, the court should not settle it, but leave it to that constitutional tribunal. But the mere pleading
The only remaining objection is that the court did not give effect to the recall of Anthony’s authority by the defendant’s telegram; but that cannot be a serious objection. It was not obeyed, and was, probably, never known to Anthony. Being informed, in reply to the telegram addressed to the agency at St. Louis recalling Anthony, that that functionary had located McCall, they were directed by the defendant company to go ahead, the only purpose of the recall being really to escape the suggestion of a “reward” by the railroad company for McCall. Being originally authorized by the defendant to arrest McCall, the detective agency, or Anthony, who had been detailed for the service of the defendant as a detective, and had been sent on that business, one or both, were, at the time of this arrest and in making it, acting within the scope of the defendant’s employment, although acting wrongfully in disobedience of orders. I have just considered that subject in the admiralty case of Sail v. Sims, (The General Rucker,) in reference to the decisions of the supreme court of the United States. The General Rucker, post, 152.
Having engaged in an effort to increase the judgment by an accumulation of interest so as to get into the supreme court, the defendant .is not in an attitude to include in the motion, as a ground for a new trial, the usual suggestion that the damages are excessive. The verdict is larger than I expected it would be, and larger than I would have given if upon the jury, but not so excessive as to justify a new trial. Upon that subject, and as a general support for the charge to the jury, I wish to quote the following extract from the case of Huckle v. Money, 2 Wils. 205, where there was a verdict of £800 in one case, and of £200 each in 15 other cases, against certain messengers of the king, who had arrested the plaintiffs arbitrarily: 0
“But the small injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at.the trial. They saw a magistrate over all the king’s subjects exercising arbitrary power, violating magna charta, and attempting to destroy the liberty of the kingdom by insisting upon the legality of this general warrant before them. They heard the king’s counsel, and saw the solicitor of the treasury, endeavoring to support and maintain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck the jury at the trial, and I think they have done right to give exemplary damages. To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition,—a law under which no Englishman would wish to live an hour; it was a most daring attack upon the liberty of the subject. I thought that the twenty-ninth chapter of magna charta,—nullus liber homo capiatur velimprisonetur, etc., etc., necsuper eum*129 íbimus, nec super eum mittemus, nisi per legale judicium parium suorurn ml per legem tena, etc.,—which is pointed against arbitrary power, was violated. I cannot say what damages I should have given if I had been on the jury; bnt I directed and told them that they were not bound by any certain damages, against the solicitor general’s argument. Upon the whole, 1 am of the ojhnion that the damages are not excessive, and that it is very dangerous for the judges to intermeddle in damages for tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages.”
Here the jury saw a formidable organization of detectives for the pursuit of criminals, in the pay of private parties, and in their interests alone, employed .by the defendant for that purpose, proceeding in the most arbitrary manner, without the least pretense of magisterial authority, to arrest a free man, and drag him to a distant place in another dominion, for a crime committed there, and in this case arresting the wrong man in that way, when regular procedure would have developed that fact, and prevented the outrage. This verdict and judgment do not go so much upon the negligence or blunder of arresting the wrong man as upon the illegality of the proceeding as against anybody. The fundamental error was in assuming that it was possible to arrest a fugitive from another state without a warrant, by merely having a policeman make the arrest, and then negotiating for “a consent,” which should relieve the “service” of the trouble of extradition proceedings. If the necessity which relaxes the law against arbitrary arrests in favor of policemen proceeding to temporarily detain suspected persons can be thus extended, then, indeed, is the policeman greater than the king. The mere presence and co-operation of a policeman does not make “a police arrest” valid, but the circumstances, and particularly the exigencies, of the case must be such as to justify the policeman in proceeding without a warrant. However useful detective agencies may be, they proceed at their peril, and at that of their employers, when they undertake arbitrary arrests such as this is shown to have been. Motion overruled.