State v. . Freeman
86 N.C. 683
N.C.
1882
Check Treatment
Ashe, J.

The defendant is the police officer of the incorporated town of Hendersonville. -Such an officer was unknown to the common law. He is the creature of a statute, and such an officer has and can only exercise such powers *685 as he is authorized to do by the legislature, expressly or derivatively. By thé 23d section of chapter 111 of Battle's Revisal, it is provided that the town constable, as a peace officer, shall have within the town all the powers of a constable in the county ; and, as a ministerial officer, he shall have the same power as a constable in the county to execute all process that may be issued by the mayor, and to en.force the ordinances and regulations of the commissioners, as they may direct.

What then are the powers of a constable in the county ? In executing warrants and other process issued by justices of the peace, he is a ministerial officer; in the apprehension of those who violate the law, he is a conservator of the peace. By the original and inherent power he possesses, he may, for treason, felony, breach of the peace, and some misdémean-ors less than a felony committed in his view, apprehend the supposed offenders virtute officii, without any warrant Chitty Cr. Law,-18. He may arrest without warrant for affrays, riots and breaches of the peace, and for violent and disorderly acts and threats, committed in his presence; he may arrest one in the act of exhibiting publicly an obscene picture, or of exposing his naked body, or of committing like offences against decency and morality. 1 Arch.Cr. PL, 26, nóte 2. These last mentioned offences are nuisances, and drunkenness falls within the same category. If he may be apprehended without warrant for these when committed in the presence of the officer, we can see no reason why he may not upon view be arrested for public drunkenness ; for when open and exposed to public view, it becomes a nuisance and an indictable offence. State v. Waller, 3 Mur., 229.

Holding that a person may be arrested for drunkenness upon view, when it is a public nuisance, the question occurs, what is the officer to do with the offender when he shall have been arrested without warrant. All the authori *686 ties agree that he should be carried, as soon as conveniently may be, before some justice of the peace. And if he is arrested at a time and under such circumstances as he cannot be carried immediately before a justice, the officer may keep him in custody, commit him to jail or the lock-up, or even tie him, according to the nature of the offence and.the necessity of the case. Arch. Cr. Pl., 27; 2 ch. 13, § 7; Dillon Mun. Corp., 271; State v. Stalcup, 2 Ired., 30. In this latter case where the prisoner was tied, it was held the officer was the judge of the necessity, but if he be guilty of a gross abuse of his authority, and do not act honestly according to his sense of right, but under pretext of duty is gratifying his malice, he is liable to indictment. The jury must judge of his motive from the facts submitted to them. A

In our case there was no gross abuse of official authority, and it appears the officer acted honestly and under no pretext of gratifying his malice, for the evidence discloses the fact, that the defendant and the, prosecuror were friendly, and that on the day before the prosecutor was found lying in the street, the defendant had kindly remonstrated with him and advised him to go to his son’s, and offered to go with him.

The prosecutor was found lying helplessly intoxicated upon the side-walk near the post office, which is generally a place much frequented, opposing an obstruction to all persons passing and repassing. The officer, as we think was his duty, arrested him. What was he to do with him ? He could not be expected to carry him to his own house, and it would haye been a farce to carry him before a justice for trial in his .then condition. While it is the duty of a peace officer when he apprehends an offender, whether with a warrant or without one, upon- view, as in .this case, to carry him at;once before a justice or other tribunal having jurisdiction, the law is not unreasonable, and does not. require that he should do so at a late and unseasonable hour *687 of the night,* but should do so at an early hour' the next morning. That was done in this case. And we are of the' opinion the officer did what it was lawful for him to do under the circumstances. The prosecutor was too much intoxicated to be tried, and it was too late for a trial if he had been sober. He carried him to the lock-up and made him as comfortable as the circumstances would admit, and the next morning at seven o’clock carried him before the magistrate of police.

This case is distinguishable from those of State v. Parker, 75 N. C, 249, and State v. James, 78 N. C., 455. In the former, the prosecutor was arrested for being intoxicated in violation of a town ordinance and imprisoned, not for safe keeping until he could be tried before a competent tribunal, but he was imprisoned until he became sober, and then released without being carried before a magistrate; and in the latter, the person arrested was committed to jail by the officer, after he had been carried before the justice by virtue of a .warrant and tried, without any written mittimus. A magistrate has no right to send a man to prison by a verbal order, and the officer who executes such an order is not protected by it.

There is error. The judgment of the superior court is reversed. Let this be certified.

Error. Reversed.