Shovlin v. Commonwealth , 106 Pa. 369 ( 1884 )

Mr. Justice Sterrett

delivered the opinion of the court,

After prohibiting various forms of gambling, prescribing penalties therefor, etc., our Crimes Act of March 31st, 1860, declares, “It shall and may be lawful for any sheriff, constable or other officer of justice, with or without warrant, to seize upon, secure and remove any device or machinery of any kind, character or description whatsoever, used and employed for the purpose of unlawful gaming as aforesaid, and to arrest, with or without warrant, any person setting up the same.”

It is not seriously questioned that Bowser, the person on whom the alleged assault and battery was committed, was openly engaged in violating both the letter and spirit of the Act; indeed, it is very evident from the testimony that plaintiffs in error were as fully authorized, by the section above quoted, to seize the gambling apparatus and arrest the proprietor thereof, as if they had been armed with a warrant for that purpose. The question, therefore, was not whether they were guilty of an assault and battery in making the arrest, but whether they were guilty of the offence for which they were indicted by reason of their having used more force than was reasonabty necessary under the circumstances; and, in the main, that question was fairly submitted to the jury.

The first assignment of error is not sustained. In charging as therein specified, the learned Judge expressed a decided opinion as to the effect of the Commonwealth’s testimony; but, the jury could not have been unduly influenced thereby, for the reason that in the very next sentence he said to them, “If, on the other hand, you believe the evidence of the defendants and their witnesses, that they exercised no more force than was necessary to vindicate the law and protect themselves from injury, they should be acquitted.” The question of fact was thus left to the jury without anything more than a mere expression of opinion as to the effect of the testimony if believed.

One of the questions involved in the second specification is whether an officer, authorized to arrest without warrant, is bound, before doing so, “ to give the party to be arrested clear and distinct notice of his purpose to make the arrest, and also of the fact that-he is legally qualified to make it;” in other words, may the officer be convicted of assault and battery for making the arrest without first giving such notice? 'While, in most cases, it maybe prudent for the officer to give-the notice before making the arrest, it is going too far to sav, in effect, that he is required to do so; and therefore we think the learned Judge erred in charging the jury as he did on that subject. In considering the question, as presented by the undisputed facts of this case, it is fair to assume that the constable and his assistants, plaintiffs in error, were authorized to make the arrest; that the authority with which the constable was expressly clothed' by the Act was at least equivalent to a warrant. It is doubtless- the duty of an officer who executes a warrant of arrest to state the nature and substance of the process which gives him the authority he professes to exercise; and if it is demanded, to exhibit his warrant, that the party arrested may.have no'excuse for resistance: 1 Chit. C. L., 51. On the other hand, as is said in Commonwealth v. Cooley et al., 6 Gray, 350, 356, “the accused is required to submit to the arrest, to yield himself immediately and peaceably into the custody of the officer, who can have no opportunity, until he has brought his prisoner into safe custody, to make him acquainted with the cause of his arrest, and the nature, substance and contents of the warrant under which it is made. These are obviously successive steps. They cannot all occur at the same instant of time. The explanation must follow the arrest; and the exhibition and perusal of the warrant must come after the authority of the officer has been acknowledged, and. his power over his prisoner has been acquiesced in.” The general principle, thus stated, is equally applicable to arrests, without warrant, under authority of the statute. The second assignment of error is sustained.

Judgment reversed, and it is ordered that the record, with copy of the foregoing opinion, setting forth the cause of reversal, be remitted to the Court of Quarter Sessions of Luzerne county for further proceeding.