58 Iowa 697 | Iowa | 1882
Thereupon, this action was brought to recover damages for the prosecution, as being malicious, and for the imprisonment, upon the ground that it was false and illegal. The ordinance under which it is claimed by the defendant he was authorized to arrest the plaintiff, contained the following provisions :
“Sec. 2. Whoever shall willfully disturb the peace of others by violent, tumultuous or offensive conduct; or by loud or unusual noises, disturb or provoke a breach of the peace, shall be deemed guilty of a misdemeanor.
*699 “Sec. 25. Whoever shall, knowingly and willfully, resist oi oppose any officer of this city, or any person authorized bj law, in serving or attempting to execute any legal writ, rule, order or process whatever; or shall, knowingly and willfully, resist any such officer in the discharge of his duties without such writ, rule, order or process, shall be deemed guilty of a misdemeanor.”
The theory of the plaintiff upon the trial of the case in the court below was:
1st. That he was not guilty of resisting the defendant in making the arrest.
2d. That if he did resist the defendant he was not liable to arrest, because Hart had committed no offense, and that defendant had no reasonable ground to believe that he (Hart), had committed an offense when he arrested him. We take it that these were the grounds of the plaintiff’s claim, from the instructions given by the court to the jury. In the course of the examination of the plaintiff as a witness in his own behalf, he was allowed by the court, against the objection of the defendant, to state that he had been nominated by the Greenback party as a candidate for the office of sheriff of the county, to be voted for at the election which took place on the day that he was arrested. That the defendant was chairman of the Greenback county committee, and that he had procured the other members of the committee to unite with him in a card to the public withdrawing the plaintiff as a candidate, and that he did not propose to be disposed of as a candidate in this summary way, and that he published a card denying that he had withdrawn. We suppose this evidence was admitted for the purpose of showing malice, and probably, also, for the purpose of claiming before the jury that the defendant arrested the plaintiff without cause, and for the purpose of effectually preventing him from making the canvas for the office.
This evidence was all improperly allowed to go to the jury.
IY. The court among other instructions gave to the jury the following:
4. — : — : guilt of party arrested. “4. If you find from the evidence that the defendant was lawfully engaged in the arrest of Hart, that is, if Hart had committed any offense, or disturbed the peace, or , , . r was attempting or likely to provoke a breach of the peace, by loud, boisterous or profane language, or quarreling in the public streets, so that defendant had reason, as a reasonably prudent man, acting in the capacity of marshal, to cause the arrest of Hart; and you further find that plaintiff offered any material resistance and tried to prevent the arrest of Hart by force, then it was the duty of defendant to cause the arrest and prosecution of plaintiff, and there would be no liability for false imprisonment unless the detention was for an unnecessary length of time.”
This instruction ivas excepted to at the time it was given, and error is assigned thereon. It is claimed by the appellee that the errors as to the instructions are not assigned with sufficient particularity and exactness. We think they are sufficient, and we need not set out the grounds upon which we arrive at this conclusion.
The instruction above set forth is in direct conflict with the rule announced by this court in the case of the State v. Bates, 23 Iowa, 96. In that case the defendant was indicted for aiding and assisting a prisoner to escape from the custody of a constable, who held the prisoner on a warrant from a justice of the peace for having threatened to commit a public offense. In that case, as in this, it was sought to show that the party arrested for the crime was not guilty of any crime, and the court held that the party aiding and assisting in the escape, could not avoid the liability “by proving that the party charged and arrested by the officers was not in fact guilty.” The court said: “His simple duty was to let the law take its course, and the guilt or innocence of the party
The error of the instruction under consideration consists in making the guilt or innocence of Hart, or reasonable ground to believe he was guilty, the test of the liability of the' marshal in making the arrest. The time and place for the plaintiff to test the question of Hart’s liability to arrest, was not in the streets of the city, in an angry and excited crowd of persons. His duty as a citizen was to allow the officer of the law to take his own course, and answer therefor to the proper party if he acted maliciously and oppressively, or without probable cause. See State v. Bris, 34 Maine, 235; Heath v. State, 36 Ala., 273.
There are other errors assigned going to other instructions to the jury. We need not discuss them. It is sufficient to say that the error above pointed out in the fourth instruction runs through the whole charge of the court. It could not well be otherwise, as the rights of the parties on this very material question were misconceived by the court.
Reversed.