Holley v. Mix, 3 Wend. 350

Holley v. Mix

3 Wend. 350 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

There is certainly an inaccuracy in the charge of the judge, as stated in the bill of exceptions. The judge is represented as lying down the broad proposition, that a felon can in no case be arrested without warrant, when there is time to obtain one. My understanding of the law is, that if a felony has in fact been committed by the person arrested, the arrest may be justified by any person without warrant, whether there is time to obtain one or not. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to rely on. These principles will be found, substantially, in I Chitty’s Crim. Law, 15.

The case of Samuel v. Payne and others, (Douglass, 359,) supports the distinction in the above proposition. In-that case a search warrant was taken out by Hall, one of the defendants, upon a charge of theft; but the warrant did not authorize the arrest. The goods were not found, but the plain*354tiff Was arrested and carried before a magistrate and dis"-»eharged. On the trial, Lord Mansfield laid down the law, that if a felony has been committed, any man upon reason-able probable ground of suspicion may justify apprehending' the suspected person and carrying him before a magistrate y but if no felony has been committed, such arrest can not be-justified by any body. The court, however, thought the rule too narrow, and said that if any person charge another with felony and desire an officer to take him in custody, such-charge will justify the officer, though no felony was committed ; but the person making such charge will be liable. And upon a new trial a verdict was found against Hall, but in favor of the officers.

' A similar decision was made in Hobbs v. Branscomb and others, (3 Camb. 420,) where the plaintiff had been improperly arrested upon a charge of felony where no felony was-committed. For the defendants, the case of Samuel v. Payne was relied on and a nisi prius decision of Mr. Justice Buller, in which he held that “ If a peace officer of his own head takes a person into custody on suspicion, he must prove that there was such a crime committed; but if he receives a person into custody on a charge preferred by another of felony or breach of the peace, then he is to be considered as a mere conduit, and if no felony or breach of the peace was committed, the person who preferred the charge alone is answerable.” Lord Ellenborough said this rule appeared to he reasonable, and that injurious consequences might follow if peace officers, under such circumstances, were personally responsible, should it -turn out that in point of law no felony had been committed.

It was not contended upon the trial that a felony had been committed; an action - would therefore lie against Stephen Mix, but not against the constable Clute, provided the arrest was made with a bona fide intention of bringing a supposed offender to justice. Thus far there is no evidence against David Mix; and had the case stopped here, a verdict for the defendants should have been directed.

The’ warrant against John Doe did not authorize the arrest of any person other than John Doe. It was altered by *355inserting the name of the present plaintiff, and then it was a justification for all subsequent regular acts of all concerned in its execution. At this stage of the proceedings a shade of suspicion is cast upon the bonajides of the whole transaction. The justice directs the constable to take the supposed culprit to Schenectady for trial, but did not attend for that purpose nor take any steps preparatory thereto, nor could in fact any trial be had within 48 hours, unless by the consent of the accused. It was the duty-of the justice to have taken the examination of the person brought before him; instead of doing so, he sent him to Schenectady. When there» the defendant, D. Mix, directed the constable to take him before justice Davis, who had issued the first warrant, and the justice gave the same direction; but the constable went to a tavern, and so did the defendant Mix, and while the constable was probably frightening the prisoner in a back room, the defendant Mix was walking the hall, waiting the result of the conference between the constable and the prisoner. He gave no further orders to go before the justice, and when the constable gave him ten dollars, he said no more about the impossibility of a settlement It was in reference to these facts that the judge charged the jury, that if the object of the two defendants was to extort money from the prisoner by working upon his fears, they were liable in this action. In this I think the judge was right Had the constable performed his duty by taking the plaintiff before a magistrate he would have been justified; but having lent himself, according to the finding of the jury, to the unholy purpose of oppression, he lost the protection which the law would give him in the discharge of his official duty and became a trespasser, and so did David Mix who acted in concert with him. There is no reason, therefore, for granting a new tKal. And as there can be but one assessment of damages, the plaintiff is permitted to enter a nolle prosequi against Clute, and perfect judgment against Mix. This practice is justified by the cases cited, (1 Saund. 207, n. 2,) and the reason there given seems to be sound; that as this action is several as well as joint, and as the plaintiff might originally have commenced his action against one only, so after *356verdict he may elect to take his damages against either of tpem. an(j where several damages are given, the plaintiff may cure the irregularity by entering a nolle prosequi against all but one, and take judgment against him alone. (6 T. R. 199.)

The motion for a new trial is denied, and. leave is given to the plaintiff to enter a nolle prosequi against Clute upon payment of his costs.