29 F. Cas. 13
U.S. Circuit Court for the Dis...
1865

THE COURT

[SMALLEY, District Judge)

charged the jury upon the points involved in the requests, as follows: That there were certain facts about which there was but little, if any, dispute; that the defendant was a provost marshal, and had an office in a building which belonged to the United States, and, at the time of the transaction out of which this controversy grew, was engaged in the performance of his official duties therein; that the plaintiff wanted to have a person enlisted as a substitute for one Dike, and that he went to Rutland, and started to go up into the defendant’s office, aforesaid, for that purpose, and was pushed or forced down by the defendant; that, after he got to the bottom of the stairs, the plaintiff said to the defendant, while still in the building: “If you will come down here, I will show you how I will defend myself,” or words to that effect; that the defendant then told one Briggs, who was standing near, and a deputy sheriff, to arrest the plaintiff and commit him to jail, and that said Briggs did so, where the plaintiff was confined a few minutes, when the defendant sent two soldiers for him, took him out of jail, and brought him back to the building from which he was first taken, when a conversation ensued between the defendant, the plaintiff, and one Simonds, which ended by the defendant’s telling the plaintiff that he might go, and ordering him to be released; and that the defendant claimed that the civil law had been suspended in Yer-*21mont, in eases like this, and that martial law liad been substituted therefor, and, that if the defendant was wrong, he should be tried by court martial. THE COURT, after explaining the difference between civil law and martial law, told the jury, that this claim of the defendant was unfounded, that the civil law was still in force in Vermont, and that, although the defendant was an officer in the military service of the United States, and claimed to be acting in his official capacity, the plaintiff had a right to seek redress for wrongs or injuries such as he claimed to have sustained in this ease from the defendant; that, if the jury found, from all the evidence, that, when the plaintiff and the defendant met on or at the top of the stairs, as described, the defendant told the plaintiff to go down, that he did not want him there, and the plaintiff refused or declined to go, the defendant had the legal right to use so much force as was necessary to put him down; that, if the defendant had good reason to believe, and actually did believe, that what was said and done by the plaintiff after he was pushed to the bottom of the stairs, was intended to be or was a threat or menace for the purpose of interfering with the defendant in the execution of his official duties as provost marshal, or in any way to deter him therefrom or molest him therein, the defendant was justified in ordering his, the plaintiff’s, arrest and detention in the manner stated by the witnesses; and that the jury, in coming to a conclusion upon that question, should carefully consider all the circumstances, as they appeared from the testimony and the surroundings of the parties at the time, and, if they were satisfied that such language and conduct of the plaintiff did amount to such threat or menace as before described, they would return á verdict for the defendant. THE COURT further instructed the jury, that the 4th section of the act of congress, approved March 3d, 18G3, would not, as claimed by the defendant’s counsel, of itself protect the defendant, or bar the plaintiff from his right of action, provided the jury found the facts to be as claimed by the plaintiff, as before stated, and, for this trial. THE COURT charged, that that section was inoperative, and afforded no defence; that if, under these instructions, the jury should find a verdict for the plaintiff, they were bound to give him his actual damages, and, if they should think the case required it, they might give him exemplary damages; that, upon this point they should carefully examine all the evidence in the case, and the arguments of counsel thereon, and if, after full consideration, they found that the defendant, in causing the arrest and imprisonment of the plaintiff, was influenced by any motive other than the honest discharge of,his official duty, they were at liberty to consider it in making up the verdict; that this question was peculiarly within their province; and that, if they found for the plaintiff, they would award him such damages as they thought .justice required.

To the refusal of the court to charge as the defendant requested, and to the charge as made, the defendant excepted. The jury returned a verdict for the plaintiff for $1,000 damages.

The district attorney was directed by the attorney general of the United States to bring and prosecute a writ of error, in behalf of the defendant, from the judgment of the court, with the consent of the defendant. This was done, and the supreme court of the United States affirmed the judgment. [Unreported.]