20 Abb. N. Cas. 259 | N.Y. Sup. Ct. | 1887
Section 170 of the Code of Criminal Procedure provides that: “ If the crime
charged be a felony, the arrest may be made on any day and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday or at night unless by direction of the magistrate endorsed upon the warrant.” It follows that the defendants were not justified in making the arrest at the time that they did, and that the court properly charged that there was a false imprisonment as soon as the defendants took the plaintiff into custody.
It is contended that the complaint should hav.e been dismissed as against the defendant Bletzer, on the ground that there is no evidence on which the jury could find a
But, again, he admitted in his answer that he made the arrest. The defendants united in their answer, and as to the complaint for false imprisonment, they denied each and every allegation, “ except as hereinafter expressly and specifically admitted or alleged.” They then proceeded to allege that the warrant was issued by the police justice and delivered to the defendants. That the defendants thereupon proceeded to the house of the plaintiff, in the city of Rochester, and found the outer door of the house locked ; that the defendants rapped upon the door ; that the defendants informed the plaintiff that they were police officers and had a warrant for his arrest. Again, the defendants further allege, that they thereupon arrested the plaintiff ami took him to the police office. It is a familiar rule that a party is bound by his pleading, and under this answer the defendant Bletzer not only admits, but alleges, that the arrest was made by him.
It is contended that the court erred in refusing to dismiss the complaint as to the allegation of an assault and battery. As we have already stated, the evidence upon this branch of the ease was conflicting, and it consequently became a question for the jury under proper instructions.
The court was also asked to instruct, the jury that it may find against one defendant and in favor of the other if the evidence warrants it. This was declined and exception taken. Tiiis request, would have been proper had it not been for the joint, answer of the defendants in which they both admit and allege that the, arrest was made by them. In view of the answer the roque» t 'was properly denied.
It also appeared in the evidence that after the defendants
Upon the trial it appeared that the plaintiff was discharged by the magistrate, and was again, subsequently, arrested upon another warrant, issued upon the complaint of Mr. Homan for the same offence. Upon the cross-examination the plaintiff was asked, “ if he paid Hem an anything' to settle the matter of the stealing of the dog.”
This was objected to and an exception taken. If he was under arrest and had settled the matter, it is claimed that it would amount to an admission that he was guilty of some offence, and the evidence would consequently have been proper as bearing upon his credibility. This, however, would not amount to a defence, for under the conceded facts in the case, the arrest was made in the night-time, by virtue of a warrant that did not authorize an arrest at that time.
The judgment and order should he affirmed.
Present, Smith, P. J., and Haight and Eradle?, JJ„,