Morley v. Chase

• Decision Date: 10 January 1887
• Citation: 143 Mass. 396,9 N.E. 767
• Parties: MORLEY v. CHASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 396

9 N.E. 767

MORLEY v. CHASE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1887

COUNSEL

W.S. Stearns and J.H. Butler, for defendant.

OPINION

The instruction requested was appropriate and right, and the instruction given was not a full equivalent therefor. The gist of the defense was that the daughter's notification to her father made it the keeper's duty then to explain his business, and that his omission so to do justified the defendant's acts; and it was the defendant's right to have a more specific instruction on this point,--to have the bearing of said notification upon the keeper's duty and the defendant's acts stated or referred to. Hunt v Lowell Gas-light Co., 1 Allen, 343; Shattuck v Rand, 7 N.E.Rep. 43.

P.B Kiernan, for plaintiff.

The instructions given by the court were sufficiently full and correct. Mitchell v. Wall, 111 Mass. 492; Kidder v. Parkhurst, 3 Allen, 393. No exception lies to the refusal of a judge, at the close of his charge to the jury to give an instruction which is covered by the instructions already given. Brown v. Dean, 123 Mass. 255. See Phillips' Appeal, 132 Mass. 233. The judge may disregard the words of the requests, and state the law applicable to the facts in his own mode, and in his own order. Howes v. Grush, 131 Mass. 207. No exception lies to the refusal to give an instruction which is based on a portion of the evidence only. Com. v. Este, 140 Mass. 279; S.C. 2 N.E. 769; Com. v. Devlin, 141 Mass. 423; S.C. 6 N.E. 64.

FIELD J.

In Rohan v. Sawin, 5 Cush. 281-285, it is said, in reference to felonies, that, "as to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested and the arrest can only be justified by proving such guilt." See Com. v. Carey, 12 Cush. 246-251. The rule by some other courts has been stated to be that a private person can only justify for an arrest without a warrant, on suspicion of felony, by proving that a felony had actually been committed, and that he had probable cause for believing that the person arrested was the person who committed it. Allen v. Wright, 8 Car. & P. 522; Reuck v. McGregor, 32 N.J. Law, 70; Brockway v. Crawford, 3 Jones, (N.C.) 433; Holley v. Mix, 3 Wend. 350; Teagarden v. Graham, 31 Ind. 422. Under either view of the law, the instructions given were sufficiently favorable to the defendant. If no felony had been committed, it is difficult to see what defense the defendant had. The request was for a ruling upon the effect...