Keefe v. Hart
213 Mass. 476
Mass.
1913
Check Treatment
Sheldon, J.

The defendants as policemen had the right to arrest the plaintiff without a warrant if they had reasonable grounds to suspect that he was guilty of a felony (Commonwealth v. Phelps, 209 Mass. 396, 404); and we now must take it that this issue has been settled in their favor by the verdict of the jury. But, having so arrested him, it was their duty to take him before a magistrate, who could determine whether or not there was ground to hold him. It was not for the arresting officers to settle that question. Stetson v. Packer, 7 Cush. 562. Brock v. Stimson, 108 Mass. 520. Phillips v. Fadden, 125 Mass. 198. Clark v. Tilton, 74 N. H. 330. Douglass v. Barber, 18 R. I. 459. Pratt v. Hill, 16 Barb. 303. *482Green v. Kennedy, 46 Barb. 16. State v. Parker, 75 N. C. 249. Manning v. Mitchell, 73 Ga. 660, 663. Judson v. Reardon, 16 Minn. 431. Newby v. Gunn, 74 Texas, 455, 456. Samuel v. Payne, 1 Doug. 359. Wright v. Court, 4 B. & C. 596. As to this, the doctrine of M’Cloughan v. Clayton, Holt, N. P. 478, though approved in Burke v. Bell, 36 Maine, 317, has not been followed.

It is true that, if one so arrested consents to his release without being taken before a magistrate, if he chooses to waive this requirement of the law and to discharge his claim against the officer, he cannot afterwards complain of the omission. Joyce v. Parkhurst, 150 Mass. 243. Caffrey v. Drugan, 144 Mass. 294. Bates v. Reynolds, 195 Mass. 549. Horgan v. Boston Elevated Railway, 208 Mass. 287. But this is the personal option of the prisoner. The arresting officer is in no sense his guardian (Phillips v. Fadden, 125 Mass. 198, 201), and can justify the arrest only by bringing the prisoner before the proper court, that either the prisoner may be liberated or that further proceedings may be instituted against him. Bath v. Metcalf, 145 Mass. 274, 276.

The officer is not required to make a formal complaint under” oath if he has concluded that his suspicions were unfounded. He does his duty by bringing his prisoner before the proper magistrate and laying before that magistrate a full statement of the facts. He is not responsible for the action of the magistrate. Hobbs v. Hill, 157 Mass. 556. Douglass v. Barber, 18 R. I. 459.

The defendants had no right to detain the plaintiff to enable them to make a further investigation of the charge against him. It was their duty to bring him before the court as soon as reasonably could be done. Tubbs v. Tukey, 3 Cush. 438, 440.

It cannot be said as matter of law that their delay for an hour and a quarter was reasonable. The facts as to this are not agreed. This interval may have overreached the time for the adjournment of the court to which the plaintiff should have been taken, and involved a yet longer delay. It is only when the facts are agreed that this issue becomes a question of law, as stated in Loring v. Boston, 7 Met. 409, 413, and Gilmore v. Wilbur, 12 Pick. 120, cited by the defendants.

The jury should have been instructed substantially as requested by the plaintiff, and the ruling given was erroneous.

Exceptions sustained.