Butolph v. Blust , 41 How. Pr. 481 ( 1871 )

By the court, Mullin, P. J.

The defendant was an aider-man of the city of Syracuse. In May, 1870, the plaintiff was in the city with his horse and wagon. The horse baulked' and the plaintiff beat him with his whip on the legs and struck him with the butt of-it on his head. The defendant saw the whipping and deeming it cruel, told the plaintiff to desist or he would have him arrested. The plaintiff told defendant, he would whip the horse and him too. The defendant went for the .police officer to make the arrest. He returned in about half an hour, and the plainiff seeing them approach, went across the city line into the town of Salina. The defendant while the plaintiff was in Salina, directed the police officer to arrest him, and he did so. The officer had no process authorizing the arrest. He made it on the authority" of the defendant.

After the arrest was made some violence was done to plaintiff’s person. He was taken before the police justice of Syracuse, ar.d an. examination had.

The action was for damages resulting from the imprisonment which is alleged to be false. The court non-suited the plaintiff and directed the case to be heard on the exceptions in the first instance at the general term.

Cruelty to an animal is a misdemeanor, as well by the Revised Statutes, (See 2d Statutes at Large, 717, § 26), as by the by-laws of the city of Syracuse (Section 6, chap. 2 of the ordinances).

By the charter of the city, (§ 6, 7, of title 4 of the latos of 1857, chap. 63), the violation of the ordinances of the common council is declared to be a misdemeanor.

By section 1, title 2, chapter 2, part 4 of the Revised Statutes, aldermen of cities are authorized to execute the power conferred in that title.

The powers thus conferred are to hear complaints against persons accused of crime, issue process for their arrest, take the examination when the prisoners are brought before them, and in certain cases to let them to trial.

At common law, an arrest could not be made of a person charged with a misdemeanor, except on the warrant of a magistrate, unless it involved a breach of the peace in which case the offender might be arrested by any person present atits.commission. (1 Chitty Crim. Law., 15; Carpenter agt Mills, 29 How., 473). But in cases of felony it might be, (same ; Haley agt. Mix 3 Wend., 350).

It is said in (2d Haley’s Pleas to the Crown, 86), that if a justice of the peace see a felony or other breach of the peace committed in his presence, he may,'in his own person, apprehend the felon. And so he may command any person to apprehend him, and such a command is a good warrant without writing. Bnt if the felony or other breach of the peace be done in his absence, then he must issue in writing under his seal to apprehend the malfactor, and if there be any riot or breach of the peace likely to happen by a tumultuous meeting, &c., he may command his servants or others to prevent it by arresting the parties.

A constable, it is said, by the same author, may by his own inherent and original power, imprison a person for a breach of the peace, and certain specified misdemeanors less than felony, but the offense of which the plaintiff is charged is not one of them. (2 Hale’s Pl., 90).

It said that in case of an affray the constable may without warrant arrest, in order to prevent it; yet, if the affray be past and no danger of death, he cannot arrest without .a warrant. ButHale is of opinion that in such case, the constable may arrest, and take the prisoner before a justice to find surety of the peace, or for appearance.

When a felony is committed, or in case of suspicion of felony, the accused flies into another county, the constable pursuing him may follow him into an other county, and arrest him ; but, when he makes the arrest, he must .take the prisoner before a magistrate of the county in which the arrest is made (2 Hale’s Pl., 94).

It follows that at common law neither the defendant no,r the constable, could arrest the plaintiff without warrant, as there was no breach of the peace.

It remains to inquire whether it could be done by either under the charter of the city.

Section 7 of the charter provides, that it shall be lawful for any alderman and policeman to arrest, retain, and take before the justice every person whom they or any of them shall find committing a violation of any ordinance of the city.

By this section, the officers named in it, are clothed with powers belonging to sheriffs, constables and police officers. And they may be exercised without warrant. The object, unquestionably was, to authorize summary arrests and to obviate the delay incident to procuring a warrant.

The defendant found plaintiff committing a violation of an ordinance of the city and was, therefore, authorized to arrest him, and call in the aid of the police officer to effect it as might a justice of the peace at common law7, when a crime was commited in his presence. (2 Hale, 86).

The delay of half an hour in making the arrest in the case, did not deprive the defendant of the right to make it.

In Regna agt. Walker, (25 E. L. & E., 589), it was held that an arrest made by a constable for resisting him in making an arrest two hours after the resistance, was unlawful.

In Taylor agt. Strong, (3 Wend., 384), it is said., that an arrest without warrant for breach of t,he peace in the presence of an officer, may be made in a reasonable time, (See also Descounts agt. Corbisbly, 85, E. C. L., 187), what is a reasonable time is upon undisputed facts fpr the courts, and half an hour is not in my opinion, an unreasonable time.

If an arrest cannot be made except immediately on the commission of an offense in many cases, offenders would escape punishment.

In case of an offense committed by a number of persons in the presence of an alderman, he would be incapable of arresting them if they resisted. If he may not delay arresting until he can procure help, punishment would be rendered impossible.

I have no doubt, but that the arrest was properly made, provided it could be made outside the limits of the city.

I do not find any authority upon the question, whether in cases of misdemeanor an officer authorized to arrest for an offense committed in his presence, may pursue the offender out of his own jurisdiction. At common law it was the duty of such an officer, in case of felony, to raise the hue, and cry, and then pursue the criminal into any other jurisdiction, and there arrest him.

This power being limited to cases of felony, it would seem, that no such right of pursuit existed in cases of misdemeanors.

At common law, an arrest on warrant must be made within the jurisdiction of the officer who issued it. (1 Chitty's Crim. Law, 49).

It wmuld be somewhat singular if an officer without warrant could arrest beyond his jurisdiction, when, upon his warrant he could not.

In felony, an arrest upon a warrant of a justice, could be made any where within the county, (l Chitty Crim. Law, 49), but in cases of misdemeanor, the arrest must be made within the jurisdiction of the officer issuing it.

Violations of municipal regulations could be committed with impunity, if the officer who is present at the commission of the offense, must stop at the city or village boundery when in pursuit of the offender, because his jurisdiction there ends. Yet, I find no case that authorizes him to arrest beyond the village or city limits.

No such right existed at common law, when the officer was without warrant, and I know of no provision of law," that authorizes it now.

The nonsuit must be set aside, and a new trial ordered, costs to abide the event.