Edger v. Burke

• Decision Date: 31 March 1903
• Citation: 54 A. 986,96 Md. 715
• Parties: EDGER v. BURKE et al.
• Court: Maryland Court of Appeals

54 A. 986

96 Md. 715

EDGER v. BURKE et al.

Court of Appeals of Maryland

March 31, 1903

Appeal from Circuit Court, Harford County; James D. Watters, Judge.

Action by George W. Edger against Eugene Burke and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.

Harrison J. Barrett, Allan C. Girdwood, and Robert H. Williams, for appellant.

Frank I. Duncan, John Grason, and Geo. L. Van Bibber, for appellees.

PEARCE J.

This is an action brought on May 22, 1901, by George W. Edger against Eugene Burke and Edward Stewart for false arrest and imprisonment. Burke was at that time, and still is, deputy sheriff of Baltimore county, where the crime was committed and Stewart was a citizen summoned by Burke to aid in the arrest, which was made without a warrant. The facts, as disclosed by the record, show that Burke was an experienced officer, having filled the position for 11 consecutive years that on the evening of January 8, 1901, he and his wife returned from Baltimore to their home, which had been left in charge of a colored woman about 60 years of age, who had lived in his family for 4 years, and in his wife's family for many years, and who was thoroughly truthful and trustworthy, though not very bright; that on their return he left his wife at the door of the house, and drove to the stable to put up his horse, and, on reaching the house, heard some one crying, and called his wife to inquire into the cause, and she said "Eliza was crying and carrying on," and that her clothes were torn nearly off, but that she could not find out what was the matter, but that next morning, after he left home, Eliza gave to his wife an account, which she communicated to him on his return at night; and that on the following morning Eliza repeated to him the account, as follows: That about 1 o'clock of the day of their absence she answered a knock at the door, and found a man standing there; that he asked if Mr. or Mrs. Burke were at home, and, being informed neither one was at home, said that he had been at the Sims place on Sunday, and Sims told him that place was for rent, and he wanted to see it, to which she replied that no one was at home, and he could not see it; that he said he lived in the Henrietta house, near by, and knew Mr. and Mrs. Burke, and wanted to go upstairs and see the house, but she refused to allow it, when he put his foot within the door, so that she could not shut it; that just then Mr. Fastey's carriage was passing on the road, and that when the carriage went down the hill he forced himself into the house, threw her down upon the corner of the stairway, and committed a rape upon her person; that he said he lived in the Henrietta house, and she said that he was the same person she had seen hauling fodder from Mr. Herman's. Burke testified that he knew the plaintiff lived in the Henrietta house, and that he had hauled the fodder from Mr. Herman's, though he had no personal acquaintance with him, and only knew him by sight; that, on receiving Eliza's account, he summoned Stewart to go with him as a deputy, and they went to Edger's house and found him at home; that he asked Edger if he was looking for a house to rent, and he said he was; that he also asked him if he had been to Sims' place on Sunday, and he said he had; that he then told plaintiff he had information a crime had been committed, and he must arrest him; that he did then arrest him, handcuffed him, and drove him in a carriage to Burke's house, and called Eliza out to see him; that she came, looked into the carriage, and said, "That is the man, but he hasn't on his spectacles, nor the same hat, but that is the man;" that he then took him to Towson, saw the state's attorney, and, on his advice, swore out a warrant, and plaintiff was committed for a hearing; that next day he was thinking about the case, and he went to see Mr. Fastey, and stated the case to him, and he said: "Eugene, you have got the wrong man. There was a man on your porch, and I had been talking with him, and, while he is a similar looking man, and a good many people would take him for Mr. Edger, you have got the wrong man;" that he then drove at once to Towson, withdrew the charge, and drove Edger home. It was also shown that, when plaintiff was arrested, he asked the charge, and was told he would find out soon enough.

There was a demurrer to each count of the declaration except the first, but this was overruled, and no question was made as to this in the briefs on which the case was submitted. Burke pleaded (1) that he did not commit the wrong alleged; and (2) that, at the time of the assault and arrest complained of, he was a deputy sheriff of Baltimore county, and that, being informed and having reasonable cause to believe that the plaintiff had committed a felonious assault upon one Eliza Preston in Baltimore county, he, in the discharge of his duty as deputy sheriff, arrested the plaintiff, and carried him before a justice of the peace for Baltimore county, who duly committed him to the custody of the sheriff of said county. Stewart pleaded (1) that he did not commit the wrong alleged and (2) that he was a citizen of Baltimore county, and, as such, was summoned and deputized by Eugene Burke, a deputy sheriff of said county, to assist him in making the arrest of the plaintiff upon a charge of felonious assault upon one Eliza Preston, and that what he did was by virtue of being thus deputized. There was a demurrer to the second plea of each defendant, which was overruled, after which issue was joined on all the pleas, and the case went to trial before a jury. At the close of the testimony on both sides the plaintiff offered seven prayers, all of which were rejected, and the defendants offered two, both of which were granted, to which rulings the plaintiff excepted; and, the verdict and judgment being against him, he has brought this appeal. The demurrer to the special pleas will be first considered. In 2 Addison on Torts (7th Ed.) p. 150, it is said: "A constable or sheriff, having reasonable ground to suspect that a felony has been committed, although in fact none has been, is authorized to detain the person suspected (not being an infant under the age of seven years, incapable of committing a felony) until he can be brought before a justice of the peace to have his conduct investigated." In Samuel v. Payne, 1 Doug. 359, Lord Mansfield said: "If one man charges another with felony, and requires an officer to take him into custody and carry him before a magistrate it would be most mischievous that the officer should be bound first to try, and, at his peril, exercise his judgment on the truth of, the charge. The officer does his duty in carrying the accused before a magistrate who is authorized to examine and commit or discharge." And in Davis v. Russell, 2 Moore & Payne, 590, Chief Justice Best, stating this rule, said: "This has been decided so often that it is unnecessary to refer to cases on the subject." The absence of a warrant for the arrest, therefore, is no ground of demurrer. But it is contended that both these special pleas are defective, in failing to set out the facts and circumstances constituting the justification pleaded, so that the plaintiff may be apprised of these facts and circumstances, and the court may judge of their sufficiency and, so far as this relates to the plea of Burke, we think the objection is well taken. This is the rule laid down in the leading case of Mure v. Kaye, 4 Taunton, 34, and is the rule recognized in 1 Chitty's Pleading (16th Ed....