Commonwealth v. Cheney

• Decision Date: 23 February 1886
• Citation: 6 N.E. 724,141 Mass. 102
• Parties: COMMONWEALTH v. CHENEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 102

6 N.E. 724

COMMONWEALTH v. CHENEY.

Supreme Judicial Court of Massachusetts, Essex.

February 23, 1886

COUNSEL

H.I. Bartlett, for defendant.

E.J Sherman, Atty. Gen., for the Commonwealth.

OPINION

GARDNER, J.

1. The defendant was indicted for an assault with a dangerous weapon upon one Hayes. At the trial it appeared that the defendant was a police officer, and one of the night-watch of Newburyport, and at the time of the alleged assault was on duty upon his beat. The defendant claimed that the alleged offense grew out of an attempt made by him to arrest Hayes, for the crime of drunkenness, on Merrimack street, a public street in Newburyport, and requested the court to rule and instruct the jury "that, if the defendant had reasonable cause of belief, the arrest was proper, so far as the act of drunkenness was concerned, and the defendant would not be liable criminally for making the arrest." The court refused so to instruct the jury, and did instruct them "that, in order to protect the officer from criminal prosecution, Hayes must have been actually drunk, and a reasonable cause of belief on the part of the officer was not sufficient." The statute in force at the time of the assault provided that whoever is found in a state of intoxication in a public place may be arrested without a warrant by a watchman or police officer. Pub.St. c. 207, § 25. The language of the statute is permissive. It gives authority to the officers named to use their discretion as to arresting an intoxicated person found in a public place. It does not compel them, at all hazards to arrest such person, but leaves it to their sound judgment to decide whether, under all the circumstances of the particular case, they should arrest the offender. Phillips v. Fadden, 125 Mass. 198. Although the law does not actually compel the officer to make the arrest, yet, when he does so make it, he must be able to justify his act in a civil action, and, if indicted therefor, show that he was not guilty of a criminal assault and battery. If the person arrested was actually intoxicated, within the meaning of the statute, this would be sufficient reason for taking such person into custody without a warrant. It is well settled in civil actions that, if the person arrested was not in fact intoxicated, the statute gave the officer no authority to arrest, although in so doing he acted in good faith and upon reasonable grounds of belief. Phillips v. Fadden, ubi supra. This rule does not apply to an arrest without a warrant for a supposed felony, in which case the officer would be justified if he had reasonable grounds to suspect the person arrested of having committed a felony. Rohan v. Sawin, 5 Cush. 281. The strict rule which applies to arrests for drunkenness, in civil actions against officers, does not govern in complaints and indictments for assault and battery against the arresting officer. Regina v. Tooley, 2 Ld.Raym. 1296; 1 Russ.Cr. (9th Amer.Ed.) 809, and note. It has also been held that ignorance of fact, without criminal negligence, will exempt one from criminal responsibility; as, when a man, intending to kill a thief or house-breaker in his own house, by mistake kills one of his own family, this will not be a criminal action. 1 Russ.Cr. 48, citing Levett's Case, Cro.Car. 538; 4 Bl.Comm. 27; and 1 Hale, P.C. 42, 43.

In Com. v. Presby, 14 Gray, 65, Mr. Justice HOAR, citing Levett's Case, says:

"The act having been done under the reasonable belief that the person killed was a felon, the excuse was held sufficient. *** By an unlawful act is meant intentional violence, without justification or excuse."

The same principle is recognized in Com. v. Woodward, 102 Mass. 155, 161, where it was held that unless the defendant, at the time he struck the deceased, under all the circumstances of the case, had reasonable cause to believe that it was necessary to protect his person, and the blow was given by him for that purpose, he would be responsible for the consequences of the blow. Other cases to the same point might be cited.

The case of Com. v. Presby, ubi supra, arose at a time when the statutes of the commonwealth made it the imperative duty of an officer to arrest for drunkenness without a warrant if he found an intoxicated person in a public place, etc. The court dwelt upon the fact that the defendant was required by his official duty to make the arrest if the fact of intoxication existed; and decided that "if he acted in good faith upon reasonable and probable cause of belief, without rashness or negligence, he is not to be regarded as a criminal because he is found to be mistaken." It is difficult to note the distinction between this case and the one at bar, so far as the principle of law is laid down. The facts of the two cases are substantially the same. The only difference is this: in the first, the statute used the phrase "shall" arrest the offender; in the case we are considering it says "may" arrest. This change in the law was not...