Malcomson v. Scott
| Decision Date | 22 April 1885 |
| Court | Michigan Supreme Court |
| Parties | MALCOMSON v. SCOTT. |
Error to Alpena.
Turnbull, Shields & Dafoe, for plaintiff and appellant.
Clayberg & Sleator, for defendants.
Plaintiff was arrested without process by Gibbons, who was marshal of Alpena, on Saturday evening, September 30, 1884, upon information received in a letter from Philadelphia, the date of which is not given in the record. At 8 o'clock in the evening, Gibbons, who had previously learned that he was regularly employed at his trade in the city and knew the place, was watching at the post-office to see whether he got his mail from box 64, which was the box he was said to own. At about 10 in the evening, as plaintiff swears, Gibbons arrested him and took him to the police station, where he was detained, according to all the testimony, until 11 o'clock, and then, by arrangement with Scott, who was sheriff, he was sent to the county jail and kept there in the criminal cells till Monday morning. His employer, Mr. Lee was sent for while he was in the police station and wanted to get him out on bail, and Scott told him the bail would be about $10,000, and wanted to know if Lee could stand that. On his replying he was willing to bail him for all he was worth he was told the justice was away and nothing could be done till Monday morning. On Sunday, Lee and plaintiff's attorney were in the jail and told Scott he had no right to hold plaintiff, and he replied he knew it, but was only holding him out of courtesy for another officer. On Monday morning plaintiff's counsel went to the jail with an application for habeas corpus against Scott to be sworn to, and read it to plaintiff in Scott's presence. After this Scott turned over plaintiff to Gibbons who knew a writ of habeas corpus was to be applied for, and who took plaintiff back to the police station and held him there, and gave on the trial, as reason why he did not take him before the justice, that he had this knowledge. Scott swore the habeas corpus was not served on him till afternoon. This writ became ineffectual by reason of the change of custody. Another was sued out against Gibbons, and the proceeding before the circuit court commissioner was kept alive by adjournment, plaintiff meanwhile being kept in custody of Gibbons and not of the sheriff. It does not appear that the prosecuting attorney intervened in that capacity officially, but Mr. Sleator swears he was employed as Mr. Gibbons' attorney to look after the matter before the commissioner. On Sunday, Gibbons received a telegram from Mr. Girin, purporting to be chief of police at Philadelphia, telling him to hold Malcomson, and he would send an officer and requisition at an early date. On Tuesday, October 3d, the commissioner made an order to detain plaintiff in custody a reasonable time, to give time to the executive of Pennsylvania to demand him, unless ordered discharged by the police authorities of Pennsylvania. Gibbons swears that after receiving this order he got a telegram from Girin to discharge plaintiff, as the bonds were returned, and he did discharge him late in the afternoon of Tuesday.
The letter on which Gibbons first acted was one not purporting to be signed by Girin, but by one "J.H.," in his name, requesting the chief of police to arrest plaintiff, described as lately grand master of Israelite Lodge A.A., of Philadelphia, and stated that he absconded, taking the funds of the lodge, consisting of money, and two bonds of Philadelphia and the United States, of $100 and $200. This was all, except a personal description and means of identification of plaintiff. It was not stated how long before the act referred to was done. Plaintiff's testimony showed he committed no offense.
Upon the trial of the present case the circuit judge held there was enough to make out reasonable cause for an arrest without warrant if the jury thought Gibbons acted honestly in that belief. The judge also held that one defendant stood on the same footing with the other on this head, and that if Gibbons took plaintiff with a belief that he had committed the crime of larceny in Michigan, by bringing in stolen property from Pennsylvania, it was a good arrest. Some other rulings require no separate reference beyond what will be covered by the considerations which we propose to mention. It is proper to say, however, in this place, that the jury came in unable to agree, and the court gave some further instructions concerning the effect of habeas corpus proceedings to place the party under the control of the commissioner, and on being requested to charge that defendants were liable if they attempted to evade the writ, he said that question had all been gone over. We have failed to find any instruction on that subject. The request was pertinent and important.
The case showed beyond dispute a shifting of custody from Scott to Gibbons, with knowledge in both that a writ was to be applied for, and that by reason of this, a second writ became necessary. The statute makes such a shifting of custody, with intent to elude the service of such writ, or avoid its effect, a misdemeanor in every party aiding or assisting. How. �� 8596-8598. It was error not to so charge. We have looked carefully into the record without finding any reason why the court did not charge, as requested, that the only question in the case was as to the amount of damages.
This letter from Philadelphia, signed by an unknown person, was the only ground on which Gibbons had any excuse for acting. It did not show that any prosecution had been commenced in Pennsylvania; nor when, if at all, plaintiff left...
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