Burk v. Howley , 179 Pa. 539 ( 1897 )

Opinion by

Mr. Justice Dean,

On the night of Sunday, November 11, 1894, the dwelling house of William E. Howley, defendant, was entered, and a quantity of silverware and other articles, to the value of $800 stolen. The plaintiff, Martha Burk, a colored woman thirty years of age, had been in the service of Howley for about one week, and on the night of the theft slept in the house. She was the sole occupant, and in charge of the house. Howley had just been married, and he and his wife were staying with his mother, who lived next door. The property taken had been kept in the dining room on the first floor of the Howley house. Martha, on rising in the morning about six o’clock, discovered the robbery, and at once gave the alarm to Howley, next door; he immediately on examination directed that nothing be disturbed until he brought an officer; he then left and soon returned with officer Kramer, who in présence of Howley charged Martha with the theft; she protested her innocence, but was arrested without warrant, taken to the patrol box a short distance off, and from there, in an open patrol wagon, to Oakland police station, placed in a cell, where she was kept eight days and nights, during which time she slept on a wooden bunk, without blankets, surrounded by such vagabonds and criminals in other and adjoining cells as the criminal population of a large city daily empties into a police station house. She alleged that by this rude treatment and exposure she was made ill and contracted rheumatism, which disabled her from service for that winter, besides subjecting her to expense for medical attendance. She had, so far as appears, always borne a good character, and had not before been charged with any crime or misdemeanor. The theft, and her arrest for it, formed the subject of sensational items for the newspapers the same and the next day. She then brought this action to recover damages for false imprisonment against Howley, officer Whitehouse, keeper of .the station, and Roger O’Mara, chief of police. On the trial in the court below it was shown no information was ever made or warrant lodged against her; in the absence of regular proceedings by information, either before or after her arrest, her detention for eight dajrs was wholly illegal, and the court below so held. There was no evidence connecting chief of police O’Mara with either the arrest or imprisonment, and as to him, the court properly directed a verdict for defendant. As to Howley, the court, in effect, instructed the jury the arrest under the circumstances without warrant, and her detention in prison without lodging information against her, was illegal, and those guilty of it were answerable in damages ; and further, that if Whitehouse, even though not concerned in the arrest, detained her in prison, with knowledge that she had not been arrested on view of the officer in commission of a felony, nor by warrant on information made, he also was answerable to her in damages for the long detention. The jury rendered a verdict for plaintiff against both defendants for 18,250. On motion for a new trial heard before the full bench, a new trial as to Whitehouse was granted; as to Howley an order was made that if plaintiff, as to him, released all of the verdict in excess of $3,000, the motion for a new trial be overruled, and judgment be entered on the verdict for that amount; otherwise that a new trial be granted to him also. Plaintiff filed the release, and judgment was accordingly entered against Howley for the reduced amount, and we now have this appeal by him.

The appellant prefers nine assignments of error, all except the last alleging errors of law in the charge of the court. The first complaint is to the refusal of the court to unqualifiedly affirm defendant’s written point, as follows: “ If the jury believe that the house of the defendant, W. E. Howley, was robbed, and he made known that fact to the police authorities of the city, and truthfully stated to said authorities the facts tending to cast suspicion upon the plaintiff as the thief, but that he made no information charging her with the offense, nor caused a warrant to be issued for her arrest, nor had any part in making or directing her arrest and imprisonment, the verdict of the jury should be in favor -of the defendant, W. E. Howley.” Answer: “This point is too broad, and cannot therefore be affirmed. It is not necessary to a conviction that Howley should have been an active party in making or directing the arrest and imprisonment of the plaintiff. If the arrest was made at his instance, with his knowledge and consent, it is sufficient, although, he may not have directed the officer to arrest her. But further, even if the arrest was without his knowledge and consent, yet, if he was a party to continuing her in the lock-up in the hope of getting a confession of some kind from her, he then became a party to the illegal imprisonment.”

To a proper apprehension of the scope of this request, and the significance of the court’s answer, the facts should be recalled. The arrest presumably was illegal, the detention palpably so. There was evidence on part of plaintiff that her arrest was brought about by statements of Howley to the officer. Kramer, the officer who made the arrest, thus testifies: “ Q. You can state whether he (Howley) said anything to you about suspecting her of having committed the robbery ? A. He said somebody on the inside of the house must have opened »it, and he said she was the only one on the inside of the house that he knew was there.” This witness was put on the stand by defendant, and thereby he impliedly asked the court and jury to credit his testimony, which shows that Howley directed suspicion against the girl, which suspicion had no other foundation than that-some one inside the house must have opened it, and she was the only one inside. He does not intimate to the officer the girl’s previous good 'character which he had satisfied himself of when he employed her the week before, and which, if known to the officer, would have prompted him to caution. Whether these facts would have warranted an information of belief before a magistrate that she was guilty, or whether-he would have issued thereon a warrant for her arrest, or whether on hearing these facts they would have justified her commitment or holding to bail, were not the questions to be determined. The question was whether Howley, by words or acts had pointed her out to the officer brought to the house by him as the thief ? Howley called the officer to the stand to testify he had so pointed her out. In view of this and other evidence to the same effect, the court refused to affirm the point, and explained why; it. was too broad, in view of defendant’s own evidence. The court properly said in answer to it: “ If the arrest was made at his instance, with his knowledge and consent, it is sufficient, although he may not have expressly directed the officer to arrest her.” But further it would have been manifest error to have affirmed the point, and to have directed a verdict for defendant, because there was evidence to sustain another ground of recovery. The plaintiff had. been illegally imprisoned for eight days. Mrs. Florence Briggs, a highly respectable woman, in whose service plaintiff had been for two or three years, and who had known, her for ten years, testifies that Howley called on her the day after the arrest, and after Mrs. Briggs had told him of the plaintiff’s established good character, and that the charge of dishonesty against her was incredible, he replied: “We had her locked up, and we will keep her locked up until she does confess .... I don’t want to punish the girl, I just want to find my silverware. I won’t punish her if she will just tell me who assisted her. I don’t believe the girl herself did it, but she had an assistant. All I want is for her to admit the theft.” There was evidence that frequent visits were made to the station by Howley and his brother, and plaintiff was importuned by them to confess her guilt, which she persistently denied, and that at last, by direction of Howley, she was released. No comment is needed on such conduct; that an humble citizen who has always borne a good character can on mere suspicion, at the instigation of a private person, be arrested, locked up and detained in a station house with its disagreeable surroundings for eight days, without information or warrant, and this with the knowledge of, if not with the connivance of two officers of the law, suggests its own comment. But there was ample evidence to show she was detained in prison by request of Howley, and that she was not released until he authorized it. His purpose was to extort a confession of guilt, a revival in a somewhat milder form of the rack and thumbscrew process to establish crime, and just as flagrantly unlawful. The court was bound to say in its qualified answer to the point, as it did say: “Even if the arrest was without (Howley’s) knowledge and consent, yet if he was a party to continuing to keep her in the lock-up in the hope of getting a confession of some kind from her, he then became a party to the illegal imprisonment.” The point, as framed might properly have been peremptorily denied.

The assignments of error from second to eighth inclusive are mainly to the charge of the court defining the authority to arrest for a felony on reasonable grounds of suspicion, without warrant. ' The court distinctly said that while an arrest, on an exigency where reasonable grounds of suspicion existed, might be made, it was tbe duty of the person or officer making the arrest to take the accused before a magistrate for formal accusation and hearing, that the exigency which prompted the arrest on suspicion could not justify such a detention as this without hearing. In this there was no error. To sustain however the charge of error in this particular appellant cites and relies on McCarthy v. DeArmit, 99 Pa. 63. That case is undoubtedly the law, but the scope of the decision must, to a great extent, be defined by the facts there appearing. It was an arrest made by the direction of Mayor McCarthy of Pittsburg. In the aggravated riots of 1877, many persons, more than twenty, in efforts to suppress the riots and keep the peace had been murdered by the lawless. One man, called l' Pat, the avenger,” was seen to have shot two of the state troops, and was accused of killing more. Many arrests of rioters were made, but “ Pat ” could not be found; a reputable citizen informed an officer that the real name of the' accused person was DeArmit, and strongly intimated he lived on 48th street; the mayor on investigation, directed his arrest late on Saturday night; on Mon day morning he was taken before a judge > on a writ of habeas corpus, but was held for a further hearing;' on Monday afternoon, a respectable witness informed the mayor he had seen the man “ Pat ” when he shot the soldiers, and had also that day seen DeArmit, and DeArmit was ■ not the same' man. The mayor immediately informed the district attorney of this, and DeArmit was discharged by the judge before whom the writ was returnable. DeArmit brought suit for damages-against the mayor. At the trial, among others, this point was put to the court and answered: “ The testimony of defendant if believed does not disclose any ground of probable cause, and the verdict should be for plaintiff. Answer: this point is affirmed.” This was generally tire purport of the instructions. The verdict was for plaintiff in sum of $2,500, and defendant appealed to this court. The judgment was reversed, Trunkey, J. in delivering the opinion, after a citation of most of the authorities, saying : “ Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. . . . What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. When the facts are in controversy the subject must be sub-' mitted to the jury, in which event it is the duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause the court shall so instruct the jury.” Then after adverting to the facts at length this is the conclusion: “By law the Mayor is the chief conservator of the peace of Pittsburg. Upon the verity of the testimony adduced by the defendants, the mayor had probable cause to suspect that the plaintiff had committed the crime. The condition of the community during the time covered by the testimony, was material for him to consider, with the fact that citizens appeared in fear and evaded the inquiries of the detective officer. Probably they feared the mob or the murderer. ... If the mayor had good reason to suspect, it was his duty to act to the end that the felon should not escape.”

The charge before us in the assignments complained of, in substance, instructs the jury this arrest was without probable cause, or rather that there were no reasonable grounds of suspicion. Clearly, there are no facts in this case to which the principle announced in McCarthy v. DeArmit will apply. De-Arrnit in a time of turbulence, destruction of property and murder, was pointed out to the mayor as one who had deliberately shot two men; he was arrested at the direction of the chief executive of the city who was doing his utmost to quell the riots; the arrest was at midnight of .Saturday, an hour when magistrates are not accessible; on the first juridical day thereafter, Monday, in the morning, he was brought before a judge and remanded; on the afternoon of the same day, he was discharged ; his apprehension without warrant was not, under the circumstances, unreasonable, neither was his detention, and the court below was reversed for peremptorily instructing the jury that the arrest was illegal. But this colored girl was not charged with riot and murder in a time of great public alarm, and suspected of planning an escape. When Howley started and announced he was going for an officer she voluntarily remained in the house. He could almost as easily have procured a warrant and put it in the hands of an officer, then returned with him, as return with the officer and instigate her arrest without warrant. But why detain her in a cell for more than á week? Obviously because there were no reasonable grounds of suspicion on which to base an information. His whole subsequent conduct shows that the imprisonment was prompted for the purpose of extorting an admission, without which there was no reasonable ground to suspect guilt. Clearly, if the exigency called for a sudden arrest without warrant, no such exigency existed for the eight days following, every hour of which was an illegal detention.

The ninth assignment is to ruling out part of the testimony of officer Kramer, a witness called by defendant. Kramer was not a party to the suit; if he had been, the evidence would have been admissible. The offer was to prove a private conversation he had with plaintiff immediately before her arrest as to the appearance of the rooms, but not in presence of Howley. What she said to Kramer, if Howley did not hear it, would not protect him, for Kramer testified positively that the arrest was made partly at Howley’s suggestion, and not solely on his own responsibility. The only effect the testimony could have had, if admitted, would have been to show that Kramer ought to have been joined in the suit with Howley. Of two joint trespassers, the plaintiff could sue both or either; and if she proceeded against but one, that one could not relieve himself from responsibility by showing the other participated in the illegal act.

As the constitutional mandate that “ The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures ” is still in force, we think the judgment should be affirmed.

It is affirmed accordingly.