123 N.W.2d 624 (Minn. 1963), 39058, State v. Duren

Docket Nº39058.
Citation123 N.W.2d 624, 266 Minn. 335
Opinion JudgeThe opinion of the court was delivered by: Gallagher
Party NameSTATE of Minnesota, Respondent, v. Robert F. DUREN, Relator.
AttorneySchultz & Springer and Arnold E. Kempe, for petitioner.
Case DateAugust 23, 1963
CourtSupreme Court of Minnesota

Page 624

123 N.W.2d 624 (Minn. 1963)

266 Minn. 335

STATE of Minnesota, Respondent,

v.

Robert F. DUREN, Relator.

No. 39058.

Supreme Court of Minnesota.

August 23, 1963

Page 625

Syllabus by the Court

1. Under Minn.St. 629.37, a private citizen may arrest another without warrant for a misdemeanor committed in his presence; but after such arrest he must inform person arrested of reason therefor (§ 629.38) and thereafter deliver him promptly to a magistrate or police officer (§ 629.39). Where such requirements are complied with, it is immaterial that arrest was made by citizen at request of police officers who arrived after the misdemeanor had been committed.

2. In such an arrest, it is essential that acts constituting misdemeanor shall have been committed or attempted within presence of person making arrest. Where information with respect to offense is gained not from sensory perception of person making arrest but rather from knowledge imparted to him by another, arrest would be invalid. Principle is followed as safeguard against danger of depriving innocent person of freedom where only a misdemeanor is involved; rule does not apply with respect to felonies because of greater danger to public where felon is at large.

3. Where evidence disclosed that arrest for driving while intoxicated was made by arresting witness who later testified that at time of such arrest she had no knwledge of defendant's intoxication from her sensory perceptions, and admitted that all information with reference to such intoxication had been supplied her by police officers who had arrived at scene of accident after defendant had left his car, and there was nothing otherwise which revealed to arresting witness that defendant was intoxicated, Held such arrest invalid.

[266 Minn. 336] Schultz & Springer and Arnold E. Kempe, St. Paul, relator.

Donald L. Lais, City Atty., Theodore J. Collins and Daniel A. Klas, Asst. City Attys., St. Paul, for respondent.

Keith M. Stidd, City Atty. and Ronald H. Linman, Asst. City Atty., Minneapolis, amicus curiae.

THOMAS GALLAGHER, Justice.

Motion by the state to quash a writ of prohibition issued by this court on March 13, 1963, commanding the municipal court of the city of St. Paul, and the Honorable J. Clifford Janes, one of its judges, to refrain from proceeding herein until further order of this court; and to show cause why they should not be permanently restrained from proceeding herein.

Page 626

The writ was issued upon a petition of defendant, Robert F. Duren, wherein he asserted that he had been unlawfully arrested and taken into custody by the police of St. Paul for the offense of driving a motor vehicle while under the influence of alcohol; and wherein he asserted that on February 15, 1963, he had appeared specially in the municipal court of St. Paul and objected to its jurisdiction to determine this action and moved for dismissal. Therein he set forth that with respect to the offense described no complaint had ever been signed by anyone and that no warrant for his arrest had ever been issued.

The record indicates that on February 10, 1963, at the intersection of Kellogg Boulevard and Summit Avenue in St. Paul, defendant was taken into custody by police officers of St. Paul pursuant to a 'CERTIFICATE AND DECLARATION OF ARREST BY PRIVATE PERSON AND DELIVERY OF PERSON SO ARRESTED TO PEACE OFFICER'

executed by Valdora Ellingson. This certificate was as

follows: 'CERTIFICATE AND DECLARATION OF ARREST BY

PRIVATE PERSON AND DELIVERY OF PERSON SO

ARRESTED TO PEACE OFFICER

'Date Feb. 10, 1963

'Time 0255

'Place Kellogg & Summit

'I Valdora Ellingson, hereby declare and certify that I have arrested

[266 Minn. 337] '(Name) Robert Francis Duren

'(Address) 857 Albion

'For the following reasons: Driving while under the influence of intoxicating beverages and I do hereby request and demand that you David Hubenette A PEACE OFFICER, take and conduct this person whom I have arrested to the nearest magistrate, to be dealt with according to law; * * * at which time I shall be present and I will, then and there, sign under oath, the appropriate complaint against this person for the offense which this person has committed, and for which I made this arrest; and I will then and there, or thereafter, as soon as this criminal action or cause can be heard, testify under oath of, and concerning the facts and circumstances involved herein. * * *

'Name of person (private party) making this arrest

'Valdora Ellingson

'Address 434 Herschel

'Peace Officer witness to this statement:

'David F. Hubenette 407

'Roy C. La Belle'

At about 2 a.m. that date Miss Ellingson was seated in a parked automobile on the east side of Kellogg Boulevard near Summit Avenue when an automobile driven by defendant turned off of Summit onto Kellogg and collided with the right side of the automobile in which she was seated. Thereafter she observed defendant leave his automobile and commence talking to a Mr. Holt, who had come out to the scene

Page 627

of the accident from his nearby residence. Five or ten minutes later, two St. Paul police officers--David F. Hubenette and Roy C. La Belle--arrived in a police car. At no time did defendant have any conversation with Miss Ellingson, who remained in her automobile, and she was unaware of the conversation which had taken place between defendant and the police officers. After the latter had arrived, defendant was instructed to get into their car and Miss Ellingson was requested to sign the CERTIFICATE AND DECLARATION OF ARREST above set forth, explaining to her that, since neither of them observed defendant while in the act of driving his automobile, [266 Minn. 338] they were not qualified to arrest him for driving it while intoxicated. Miss Ellingson thereupon signed the certificate described.

Defendant was not shown the form which Miss Ellingson signed, but thereafter was promptly taken by the police to the St. Paul Public Safety Building under arrest. He was advised by the police officers that he had been...

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10 practice notes
  • 789 F.2d 1289 (8th Cir. 1986), 84-5160, United States v. Rambo
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 25 April 1986
    ...police officer or private citizen, all the acts constituting the misdemeanor must have occurred in their presence. See State v. Duren, 266 Minn. 335 at 345-47, 123 N.W.2d 624 at 631-32; Able v. Commissioner of Public Safety, 352 N.W.2d 518, 520 (Minn.App.1984). Given this limited statutory ......
  • 222 N.W.2d 345 (Minn. 1974), 44803, State v. Hicks
    • United States
    • Minnesota Supreme Court of Minnesota
    • 11 October 1974
    ...State v. Dax, 290 Minn. 546, 188 N.W.2d 422 (1971); Trail v. Village of Elk River, 286 Minn. 380, 175 N.W.2d 916 (1970); State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963); State v. Peterson, 266 Minn. 77, 123 N.W.2d 177 (1963); State v. Simonsen, 252 Minn. 315, 89 N.W.2d 910 (1958); Stat......
  • 151 N.W.2d 598 (Minn. 1967), 39818, State v. Quinnell
    • United States
    • Minnesota Supreme Court of Minnesota
    • 9 June 1967
    ...more in point, Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149. [12] Minn.St. 629.34. See, also, State v. Duren, 266 Minn. 335, 123 N.W.2d 624; Hilla v. Jensen, 149 Minn. 58, 182 N.W. 902; State v. Pluth, 157 Minn. 145, 195 N.W. 789.dissent for the principle of stric......
  • 447 P.2d 32 (Nev. 1968), 5536, Kinna v. State
    • United States
    • Nevada Supreme Court of Nevada
    • 13 November 1968
    ...the acts constituting the offense are known to him through his own senses. Elrod v. Moss, 278 F. 123 (4 Cir. 1921); State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963); Venable v. State, 210 Tenn. 664, 362 S.W.2d 222 (1962); Smith v. Hubbard, 253 Minn. 215, 91 N.W.2d 756 (1958); State v. P......
  • Request a trial to view additional results
10 cases
  • 789 F.2d 1289 (8th Cir. 1986), 84-5160, United States v. Rambo
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 25 April 1986
    ...police officer or private citizen, all the acts constituting the misdemeanor must have occurred in their presence. See State v. Duren, 266 Minn. 335 at 345-47, 123 N.W.2d 624 at 631-32; Able v. Commissioner of Public Safety, 352 N.W.2d 518, 520 (Minn.App.1984). Given this limited statutory ......
  • 222 N.W.2d 345 (Minn. 1974), 44803, State v. Hicks
    • United States
    • Minnesota Supreme Court of Minnesota
    • 11 October 1974
    ...State v. Dax, 290 Minn. 546, 188 N.W.2d 422 (1971); Trail v. Village of Elk River, 286 Minn. 380, 175 N.W.2d 916 (1970); State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963); State v. Peterson, 266 Minn. 77, 123 N.W.2d 177 (1963); State v. Simonsen, 252 Minn. 315, 89 N.W.2d 910 (1958); Stat......
  • 151 N.W.2d 598 (Minn. 1967), 39818, State v. Quinnell
    • United States
    • Minnesota Supreme Court of Minnesota
    • 9 June 1967
    ...more in point, Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149. [12] Minn.St. 629.34. See, also, State v. Duren, 266 Minn. 335, 123 N.W.2d 624; Hilla v. Jensen, 149 Minn. 58, 182 N.W. 902; State v. Pluth, 157 Minn. 145, 195 N.W. 789.dissent for the principle of stric......
  • 447 P.2d 32 (Nev. 1968), 5536, Kinna v. State
    • United States
    • Nevada Supreme Court of Nevada
    • 13 November 1968
    ...the acts constituting the offense are known to him through his own senses. Elrod v. Moss, 278 F. 123 (4 Cir. 1921); State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963); Venable v. State, 210 Tenn. 664, 362 S.W.2d 222 (1962); Smith v. Hubbard, 253 Minn. 215, 91 N.W.2d 756 (1958); State v. P......
  • Request a trial to view additional results