Delafoile v. State

• Decision Date: 20 June 1892
• Parties: DELAFOILE et al. v. STATE.
• Court: New Jersey Supreme Court

24 A. 557

54 N.J.L. 381

DELAFOILE et al.

v. STATE.

Court of Errors and Appeals of New Jersey.

June 20, 1892.

(Syllabus by the Court.)

Error to supreme court.

Indictment against Alexis Delafoile, Alexander H. Elihes, and Garret Allison for assault and battery. On a judgment of conviction, defendants bring error. Affirmed.

The other facts fully appear in the following statement by Knapp, J.:

The plaintiffs in error were indicted at the September term, 1889, of the Bergen over and terminer, for assault and battery on one Hannah Collins, the wife of Thomas Collins, who kept an inn and tavern called "The Octagon," at Ft. Lee, in the said county of Bergen. The defendants were members and marshals of an organization called the "Riverside Law and Order Society of the Township of Ridgefield." The organization of that society was under an act of the legislature entitled "An act to authorize the formation of associations for the more effectual prevention and detection of crime," approved March 20, 1878. Supp. Revision, 815. The cause was tried at the same term in the quarter sessions, resulting in a conviction of the defendants. It was removed by writ of error into the supreme court, and there heard upon exceptions sealed at the trial. The supreme court affirmed the judgment of conviction, and it is to review that judgment that this writ of error is brought.

E. Stevenson, for plaintiffs in error.

A. D. Campbell, for the State.

KNAPP, J., (after stating the facts as above.) The record shows a conviction of the plaintiffs in error on an indictment found against them for assault and battery. The bill of exceptions returned with the record shows acts of forcible injury to the person, committed by them, such as justify the conviction, unless the official character in which they assumed to act shields them from the ordinary legal consequences of a forcible injury to the person of another. Their defense is that they were clothed with the authority of constables, and as such possessed the right to enter the dwelling of another when they, had reasonable ground to believe that in such dwelling the criminal law was being secretly violated in the unlawful sale of intoxicating drink; that, as such officers, when in any part of such dwelling by the license of the owner, their further right was to force their way, against the will of such owner, into any other part of such building in search of the suspected wrongdoing. The question is, and the only one possessed of any substance, whether such officer is clothed with authority to the extent claimed for these defendants. That the defendants, in virtue of their offices, possessed the powers and authority of constables, is not denied. The act under which they are appointed provides that "all the powers of constables in criminal cases shall be possessed and exercised by them, and that they shall have power and authority to arrest any person found within the limits of said county who shall have violated any law of this state within the county, or* who shall have willfully interfered with the peace and good order of the county, and the said marshal shall arrest every such person without warrant and indorsement, and bring him or her, as soon as conveniently can be, before a magistrate," etc. This legislation, and their appointment under it, undoubtedly conferred upon them the common-law powers and authority of constables, and the usual powers exercised by officers of police. Has one so endowed with public authority the right by force, against the will of the owner, resisting him, to pass through any part of a dwelling, on the mere belief, however well grounded, chat the criminal law is being violated, and that not in a way to constitute a breach or" the peace? The parties were not armed with any warrant for the arrest of any person; therefore their justification is not under acts done in execution of process. But the powers of these officers are not limited to the mere execution of process. The office was originally instituted for the better preservation of the peace, and a constable has the right, under his common-law powers, in divers cases, to arrest offenders without warrant. Thus he is justifiable without warrant in arresting persons directly charged with felony although it should afterwards appear that no felony had actually been committed; and where a felony has been committed, he is justified in making arrest without warrant, provided he acts in good faith upon such information as amounts to a reasonable and proper ground of suspicion. If he has reasonable cause to suspect that a felony has been actually committed, he is justified in arresting the parties suspected, although it afterwards appear that no felony has been committed. He may also arrest an offender without warrant for treason, felony, breach of the peace, and some misdemeanors, when committed in his view. 2 Hac. Abr. 515. "Constable," C; Hale, P. C. 587; Beck with v. Philby, 6 Barn. & C. 635. He is not only empowered to part an affray in his presence, but he is bound at his peril to do so if possible, and he may carry the persons engaged in it before a justice of the peace in order to their finding sureties to the peace, and to answer for their offenses. If the affray be in a house, the constable may break open the doors to preserve the peace; and if the affrayers fly to the house, and he freshly follow, he may break open the doors to take them without warrant. Hale, P. C. 92-135. But he cannot, without a warrant, arrest a man for an affray or breach of the peace out of his view, unless it embrace a felony.' This subject is fully discussed in Whart. Crim. Pl. & Pr. §§ 5-8, and the cases are there collected. The boundaries of this official power seem to be clearly defined and distinct, and definite limits placed upon its exercise. No case or text writer asserts of this office the power to go into or through a private house unbidden by the owner, save it be in the execution of criminal process, or where there is a well-founded belief of crime, and the officer goes in pursuit of the criminal, or where in such house there is evidence that a felony or breach of the peace is being committed. No one in this country, I think, before this case, ever asserted the right of a public officer to go through the private apartments of a family against the will of the owner to search for the existence of evidence of an infraction of a public law. Such a tight, if it existed, would, in my judgment, create more public disorder that it could by any possibility repress.

It is said, however, that, admitting that such a right does not inhere in these officers under the doctrine of the common law nor general statutes controlling the subject, in this case there is such broad and extended power given that it embraces the right that these parties set up. Before it should be held that these officers or any others, acting in a ministerial capacity, or as conservators of the peace, are clothed with a power so comprehensive, the words of the law from which it is supposed to be derived should be such as to admit of no other possible construction. When such a law appears, it will be time enough to consider whether or not it infringes upon those fundamental rights of personal security...