Petit v. Colmery

• Decision Date: 18 February 1903
• Citation: 55 A. 344,20 Del. 266
• Court: Delaware Superior Court
• Parties: JOSEPH PETIT v. WILLIAM T. COLMERY

55 A. 344

20 Del. 266

JOSEPH PETIT v. WILLIAM T. COLMERY

Superior Court of Delaware, New Castle County

February 18, 1903

Superior Court, New Castle County, February Term, 1902.

ACTION OF TRESPASS ON THE CASE (No. 184, May Term, 1902), for damages for false imprisonment.

Verdict for plaintiff for $ 275.

John H Rodney for plaintiff.

J Harvey Whiteman for defendant.

Judges SPRUANCE and BOYCE, sitting.

OPINION

BOYCE, J. charging the jury:

Gentlemen of the jury:--This is an action of trespass, brought to recover damages for an alleged false imprisonment of the plaintiff by the defendant.

False imprisonment is an unlawful arrest and detention of the person of another, either with or without a warrant of arrest. It consists in an unlawful restraint upon a man's person or control over the freedom of his movements, by force or threats, and every such restraint or confinement is unlawful where it is not authorized by law. The actual detention of the person and the unlawfulness thereof constitute the trespass; the gravamen being the unlawfulness of the imprisonment; and for every such imprisonment the officer making the arrest is liable in damages.

It is conceded that the plaintiff was arrested by the defendant and that the latter was, at the time of making the arrest, a constable of this county.

A constable has the right, and it is his duty, to execute a warrant of arrest in a lawful manner; and in so far as he acts as a peace officer he must be concerned not to commit a trespass upon the person of another by exceeding his authority, and he must obey the mandate of his warrant.

The Court in the case of the State vs. Townsend, 5 Del. 487, 5 Harr. 487, said, "that with regard to a known peace officer of the County, it is not necessary for him to either produce his warrant or state his character and authority before making an arrest. The arrest itself is the laying of hands on the defendant, and it might be defeated by the ceremony of making an explanation or producing a paper before the arrest is made. It is quite time to produce the authority on the demand of the person arrested, or after the arrest. Everyone is bound to know the character of an officer who is acting within his jurisdiction, and every citizen is bound to submit peaceably to such officer until he can demand or investigate the cause of his arrest. If the officer have no warrant for the arrest, he is liable to the defendant, who can suffer no wrong by submitting to the law; but if he resist before such investigation, and the officer have authority, he is indictable for obstructing such officer in the discharge of his duty."

And in the case of the State vs. List, 1 Houst. Crim. Cas. 133 (143), the Court said, "As to the manner in which such an officer should proceed to make an arrest, it is not easy to prescribe any precise and definite rule under the varying circumstances and degrees of force and resistance which he may be destined to encounter in the legitimate discharge of his hazardous and responsible duty." A constable may take with him such assistance as he may deem necessary to aid him in the execution of a warrant of arrest. But, with or without such assistance, he may not use more force than is reasonably necessary to make the arrest, or to prevent the escape of the accused; and if there be no resistance on the part of the person to be apprehended, or interference on the part of others, the officer may not resort to any violence in making the arrest. If, however, he be resisted he may use such force as the circumstances reasonably require, in order to make the arrest, to prevent an escape, or for the purpose of protecting himself from bodily harm.

This Court said in the case of the State vs. Mahon, 3 Del. 568, 3 Harr. 568, "A person having authority to arrest another must do so peaceably and with as little violence as the case will admit of. He must touch the person; and ought to do it without violence, unless the case require roughness; if resisted he may use force sufficient to effect his purpose. But if no resistance be offered, or attempt at escape, he has no right rudely and with violence, to seize and collar his prisoner."

Any cruel or unnecessary exposure of the plaintiff to cold, or deprivation of suitable clothing, or covering, while he is in the carriage with and in custody of the officer would be unlawful.

We may say to you, as was said by the Court in the case of the State vs. Dennis, 16 Del. 433, 2 Marvel 433, 43 A. 261, "Public peace officers are charged not only with the maintenance of the public peace and order, but with the preservation of the safety of person and property within their jurisdiction. Their duties, therefore, are very reponsible ones, and, at times,...