Marshall v. Cleaver

• Decision Date: 08 December 1903
• Citation: 20 Del. 450,56 A. 380
• Court: Delaware Superior Court
• Parties: JAMES H. MARSHALL v. FRANK CLEAVER

56 A. 380

20 Del. 450

JAMES H. MARSHALL v. FRANK CLEAVER

Superior Court of Delaware, New Castle County

December 8, 1903

Superior Court, New Castle County, November Term, 1903.

ACTION ON THE CASE (No. 22, November Term, 1902), to recover damages for false imprisonment.

The facts appear in the charge of the Court.

Verdict for plaintiff for $ 30.

John H Rodney and John H. Rodney, Jr., for plaintiff.

T Bayard Heisel for defendant.

LORE C. J., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

LORE, C. J. charging the jury:

Gentlemen of the jury:--This is an action to recover damages for false imprisonment.

The plaintiff alleges that on the sixth day of September, 1902, he was assaulted and arrested by the defendant, without any reasonable cause, and compelled to go along the public streets to a lockup in the town of Delaware City, in this county, where he was imprisoned and detained until the morning of the next day, whereby he was greatly hurt, exposed and injured in his credit and circumstances.

The defendant admits the arrest and imprisonment, but justifies his action upon the ground that at that time he was a county constable and peace officer of this county, that in pursuance of his duty as such peace officer, he arrested and imprisoned the plaintiff for violations of law committed in his presence, and detained him in the lock-up until he could be taken before a justice of the peace for a hearing.

The special pleas of justification on the part of the plaintiff are five.

Three of them aver that the plaintiff was drunk in the street, public place, and highway in the town of Delaware City in this county. The fourth alleges that there was danger of a breach of the peace being committed by the plaintiff. Fifth, that the plaintiff committed an assault upon the defendant, who was then a constable of this county.

It is claimed that all these alleged offenses occurred in the presence and view of the defendant.

It is admitted that the arrest was made without a warrant.

It is well settled that a peace officer, such as a county constable may arrest a person without a warrant for an offense committed in the presence and view of such officer, for which he would have a right to make the arrest with a warrant, if committed out of his presence.

Section 16 of Chapter 646 Laws of Delaware, Revised Code, 414, expressly authorizes the arrest without warrant, of any person found drunk or excited by liquor and noisy, in the street, highway or other public place of the county.

An arrest by a peace officer, without warrant, can only be made where the offense is committed in his presence and view, and must be made at the time of...