Hopewell v. State

• Decision Date: 09 June 1899
• Citation: 22 Ind.App. 489,54 N.E. 127
• Parties: HOPEWELL v. STATE.
• Court: Indiana Appellate Court

22 Ind.App. 489

54 N.E. 127

HOPEWELL

v.STATE.

Appellate Court of Indiana.

June 9, 1899.

Appeal from circuit court, Jackson county; A. B. Voyles, Judge.

John H. Hopewell was convicted upon an indictment charging him with delay and neglect to perform his duties as a policeman, and appeals. Reversed.

O. H. Montgomery and J. M. Lewis, Jr., for appellant. W. A. Ketcham, Merrill Moores, and A. E. Dickey, for the State.

ROBINSON, J.

The indictment upon which appellant was convicted reads as follows: “The grand jurors of the county of Jackson and state of Indiana upon their oath present that John Hopewell, on the 19th day of October, 1897, at said county, was then and there a policeman in the city of Seymour, and while acting as such ministerial officer he did then and there unlawfully and unnecessarily delay and neglect to disperse and arrest a riotous mob, composed of persons whose names are unknown to said grand jurors, assembled for the purpose of unlawfully touching, beating, and striking Alexander A. Davidson, in a rude, insolent, and angry manner, it then and there being the duty of said John Hopewell to disperse and arrest said mob, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Indiana.” Errors have been assigned which question the sufficiency of the facts stated in the indictment to constitute a public offense. The courts of this state take judicial notice of the fact that, at the time mentioned in the indictment, the city of Seymour was a municipality, incorporated under the general law of this state for the incorporation of cities, as the “city of Seymour.” This is a part of the history of the state, of which courts take judicial notice. Stultz v. State, 65 Ind. 492;State v. Gramelspacher, 126 Ind. 398, 26 N. E. 81;Pennsylvania Co. v. Horton, 132 Ind. 189, 31 N. E. 45. The general law for the incorporation of cities gives cities incorporated thereunder power “to preserve the peace and regulate the police of the city.” Burns' Rev. St. 1894, § 3541 (Horner's Rev. St. 1897, § 3106). It is alleged in the indictment that appellant was a policeman in the city of Seymour, and was acting as such officer at the time named. It will be presumed that a policeman of the city of Seymour possessed the ordinary powers of peace officers at the common law. Doering v. State, 49 Ind. 56. It is said in Doering v. State, supra, that this presumption should not be carried beyond the powers possessed by conservators of the peace at common law. It seems that the power of conservators of the peace was not greater than that of constables at common law. 2 Hawk. P. C. pp. 40, 129. The acceptance of every office implies the tacit agreement on the part of the incumbent that he will diligently and faithfully execute the duties of the office. And at common law, where an officer neglected a duty incumbent upon him, either by common law or statute, he was indictable for the offense, and this was so whether he was an officer of the common law or appointed by act of the legislature. 1 Hawk. P. C. c. 66, § 1; 5 Bac. Abr. 210; 4 Bl. Comm. 140. If a public officer willfully and grossly neglects the duties of his office, he is liable to an indictment. Rex v. Holland, 5 Term R. 607. An indictment would lie at common law against all subordinate officers for neglect, as well as misconduct, in the discharge of their official duties. A constable was indictable for neglecting the duties required of him by common law or by statute; and when a statute required him to do what, without requiring, had been his duty, it was held not imposing a new duty, and he was indictable at common law for the neglect. Reg. v. Wyat, 1 Salk. 380; 2 Cro. Eliz. 654; 1 Russ. Crimes, 138. In a case reported in 6 Mod. 96, it is said: “If a man be made an officer by act of parliament, and misbehaves himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehavior in his office.” The duty to make arrests in certain cases was also imposed upon private persons at the common law, and for failure in this regard an indictment would lie. Thus, it is said in an old book: “All persons whatsoever, who are present when a felony is committed or a dangerous wound given (which, if the wounded person dies, will amount to a felony), are obliged to apprehend the offender; otherwise, they are liable to be fined and imprisoned for the neglect, unless they were under age at that time.” Law of Arrests, 200; 1 Chit. Cr. Law, 16. It is true the indictment shows that appellant was at the time in question a police officer of the city of Seymour. But had he performed the duty he is charged with having neglected, he would not have been acting as the agent or servant of the municipality, but as a public officer appointed by the city upon the authority of the legislature. As a peace officer he is a public officer, within the meaning of the statutes of this state. See City of Lafayette v. Timberlake, 88 Ind. 330. Since the enactment of the Code of 1852, there are no longer any common-law offenses in this state. By that enactment it was provided that “crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this state and not otherwise.” Burns' Rev. St. 1894, § 237 (Horner's Rev. St. 1897, § 237). It has been held, however, that where a statute enacted subsequently to the above section creates a crime by name, without defining it, a prosecution may be maintained. In such cases, the court will define the crime by the aid of common-law definitions. State v. Berdetta, 73 Ind. 185;Hedderich v. State, 101 Ind. 565, 1 N. E. 47;Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631. Under these authorities, the legislature need not define the crime, but it is enough if it designate the thing itself as a crime.

It is provided by section 1771, Burns' Rev. St. 1894 (section 1702, Horner's Rev. St. 1897), that “all judicial officers, sheriffs, deputy sheriffs, coroners, constables, marshals, deputy marshals, police officers, watchmen, and the conductors of all trains carrying passengers or freight within this state, while on duty on their respective trains, may arrest and detain any person found violating any law of this state, until a legal warrant can be obtained.” But it cannot be said that this provision gives any one who was a peace officer at common law a discretion as to when he shall make an arrest. This section evidently intended to give, by statute, a right which, as to some of the officers named, already existed at common law. It was the duty of peace officers at common law to arrest without warrant persons whom they saw violating the law, whether the offense was a felony or a misdemeanor. The fact that this section gives a right to certain peace officers who were such at common law, and also to certain other officers who were not peace officers at common law, does not in any way interfere with the duty which the common law imposed upon peace officers and which still rests upon them. It is as much the duty of a peace officer to prevent a crime as it is his duty to cause the offender to be apprehended and punished after the crime has been committed. And, when he witnesses a breach of the peace, it is his duty to put an end to the breach; and not only that, but, as a means of restraining the offender, it is his...