124 Ill. App. 188 | Ill. App. Ct. | 1906
delivered the opinion of the court.
It was the duty of appellant to take possession of the hand-bag left in his car and to carry it to the office of the company, there to be returned to the owner upon identification. Being lawfully in the possession of the bag, his right to its custody was not lost, by his going into the alley, whether such going was upon a necessary errand or not.
It is true that if the owner of the bag came to him and described its contents to his satisfaction, he might give it to her, thus saving her a trip to the office of the company. But appellant was the judge as to the sufficiency of such identification, and an error in that regard ppon his part would not render his possession unlawful.
The police officer was vested with no judicial power. He had no right to enter a judgment upon the facts as he understood them. The finding did not occur in his presence. All that he knew about it was hearsay. That information was that the bag had been left in the car and had been found and taken possession of by the conductor of the car, whose duty it was to take it to the office of the company in order that it might be returned to the owner. No written charges were filed against appellant, nor had any warrant been issued for his arrest. And yet the officer, without reasonable ground to believe that a felony had been committed, judicially decided that appellant was guilty of a crime, and arrested him. This he had no right to do. Under., the circumstances the act of the officer in laying his hands upon appellant was - unwarranted and unlawful. The liberty of the citizen cannot be thus lightly disregarded. The arrest being unlawful, appellant had a right to meet force with force, if in so doing he used such force only as was reasonably necessary to repel the assault upon his person. Wentworth v. The People, 4 Scam., 551.
The only evidence to sustain the charge of “resisting an officer” is that of the policeman. He testified that when he took hold of appellant “he did not want to come, and he said ‘You have no right to arrest me.’ I arrested him in the alley. He wanted to pull away always until he got to the car, and I would not let him.” At another time the officer says, “He wanted to get on. the car and I caught hold of his coat and pulled him over.” Q. “Did he strike you?” A. “No, sir, he tried to pull back and get on his car.”
Pive eye-witnesses, three of them disinterested, directly contradict the officer in this regard. Each and all, of them testify that appellant did not pull back or in any manner resist the officer. Admitting for the moment that the arrest ivas lawful, the evidence strongly preponderates against the truth of the charge.
Eor the reasons given the judgment of the Criminal Court is reversed.
Reversed.
