Phillips v. Fadden

• Decision Date: 18 July 1878
• Citation: 125 Mass. 198
• Parties: Charles N. Phillips v. Thomas Fadden
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 198

Charles N. Phillips v. Thomas Fadden

Supreme Court of Massachusetts

July 18, 1878

Norfolk. Tort for assault and battery and false imprisonment, at Holbrook, on July 12, 1877. Writ dated September 6, 1877. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

The plaintiff was arrested without a warrant on the day alleged by the defendant, a constable of the town of Holbrook, in a public place in that town. The evidence was conflicting upon the question whether the plaintiff was or was not intoxicated at the time of his arrest.

There was evidence tending to show that after the arrest was made and while the officer was taking the plaintiff to the lock-up, the plaintiff asked to be let off, and promised the defendant that, if he would release him, he would go to his home peaceably, and would not drink any more; and that the defendant consented and suffered him to go at large, and did not, in fact, afterwards take him into custody upon this charge, or make a complaint against him, or carry him before the court. There was also evidence tending to show that the defendant, when he released the plaintiff, told him to be on hand to go to court the next morning; that the defendant went to the clerk of the district court, who lived in an adjoining town, for a warrant, but was told by the clerk that he had no blank warrants with him, and came away without procuring a warrant; and that he did not take any further steps in the matter.

The defendant requested the judge to instruct the jury, that an officer who had, without a warrant, arrested a person for being intoxicated in a public place, might afterwards release him without taking him before the proper court, if, in the exercise of his judgment, that was the best course to be pursued; and that he would not be liable for so doing to the party arrested, unless it appeared that he acted in bad faith in making the arrest.

The judge declined to give this instruction; and instructed the jury as follows: "An officer who, without a warrant arrests a person for being intoxicated, does so at his peril and if it afterwards appears that the person so arrested was not in fact intoxicated, within the meaning of the statute, at the time of the arrest, the officer is liable in trespass, notwithstanding he made the arrest in good faith, and under a reasonable belief that the person arrested was intoxicated.

"After an officer has, without a warrant, once arrested a person for being intoxicated in a public place, he is bound to carry him before the proper court; and if he fails to do so, he is liable, unless it is shown that the person arrested requested or consented to the discharge; and in order to release the officer from liability upon this ground, the jury must be satisfied that it was understood and agreed between the parties at the time that no further proceedings were to be taken in the matter."

The jury returned a verdict for the plaintiff in the sum of $ 50; and the defendant alleged exceptions.

Exceptions overruled.

A. French, for the defendant.

J. F. Kilton, for the plaintiff.

OPINION

Ames, J.

It was provided by the St. of 1869, c. 415, § 42, that "if a person is found in a state of intoxication in a public place, or is found in any place in a state of intoxication committing a breach of the peace or disturbing others by noise, any sheriff, deputy sheriff, constable watchman or police officer shall without a warrant take him into custody, and detain him in some proper place until, in the opinion of such officer, he is so far recovered from his intoxication as to render it proper to carry him before a court of justice. The officer shall then take him before some justice," &c., "and shall make a complaint against him for the crime of drunkenness." It will be observed that the terms of this statute left nothing to the discretion of the officer, but made it his imperative duty to arrest the offender and afterwards to institute proceedings to have him brought to trial for his offence as soon as he was in a condition to be tried. In the case of ...