150 Mass. 243 | Mass. | 1889
The plaintiff’s objection that the defendant was not duly appointed a police officer cannot be sustained. It appeared by the records of the board of aldermen of Worcester, that on January 12, 1885, the mayor appointed and the aider-men approved the defendant as a special policeman. The charter of Worcester provides that “ the mayor and aldermen shall have full and exclusive power to appoint a constable or constables, and a city marshal and assistants, with the powers and duties of constables, and all other police officers.” St. 1866, c. 199, § 13. An ordinance of the city provides that “ the mayor and aldermen may appoint such, number of special police for day or night service as they may deem necessary.” City Ordinances, c. 34, § 11. This ordinance does not limit the general power of the mayor and aldermen to appoint police officers conferred by the charter, and the appointment of the defendant without any limitation as to time or place gave him all the power of a police officer throughout the city. Commonwealth v. Hastings, 9 Met. 259. Among these powers was the power to arrest without warrant any person found in a state of intoxication in a public place, or found in any place in a state of intoxication committing a breach of the peace or disturbing others by noise. Pub. Sts. c. 207, § 25.
In the ease at bar, the jury have found that the plaintiff when arrested was in a state of intoxication, committing a breach of the peace or disturbing others by noise. His arrest, therefore, was legal. But he contends that the failure of the officer to make a complaint against him for drunkenness on the next morning makes the officer liable in this action. Pub. Sts. c. 207, § 25. The object of the provision requiring the officer to make a complaint is the protection of those arrested without warrant by insuring that they shall be promptly brought before a court; and it has been repeatedly held that a party thus arrested may waive this provision, and that, if he requests his discharge, with the understanding that he is to release any damages to which he might otherwise be entitled by reason of
In the case before us, the evidence tended to show that, on the morning after the arrest, the defendant was about to take the plaintiff before the district court to make complaint against him, that the plaintiff asked him “ not to do so, but to let him go,” and further said that “ he had nine children, and did not want the defendant to take him before the court, but wanted to go home and take care of his family,” and that thereupon the defendant let him go. Such a request shows the intention of the plaintiff to waive his rights, and fairly implies an understanding that he shall not hold the defendant responsible for granting the request, and would warrant the jury in finding that there was a release of damages by the plaintiff on account of the failure by the officer to take him before the court and make complaint. The plaintiff has no ground to complain of the instructions of the court upon this part of the case.
The plaintiff took several exceptions to the admission of evidence, but none of them can be sustained. For the purpose of showing that the plaintiff was “ disturbing others by noise,” it was clearly competent for the defendant to show that there was a large number of inmates in the almshouse within hearing of the noise, and that they and he were disturbed by it. The fact that the plaintiff made no claim on the defendant before commencing the action, though probably of very little weight, was admissible as showing the conduct of the plaintiff in regard to his claim.
The plaintiff having testified as to his going to the city marshal’s office on the morning after the arrest, and as to what took place there, it was competent to show, as affecting bis credit as to this portion of his testimony, that he was under the influence of liquor at that time.
Exceptions overruled.