LONG
J.
This
action is brought by plaintiff to recover damages for assault
and illegal arrest. Defendant, at the time of the arrest, was
a policeman of the city of Kalamazoo, and claims to have
arrested defendant because she was a street walker. It
appears that plaintiff lived on Kalamazoo avenue east, and
sometime in the fore part of August, 1888, went from her own
home to a sister's, living on the corner of Church and
Eleanor streets, in the city. There she met a younger sister
and the two went down into the city upon the main street
called into the Watkins House closets; and after plaintiff
had shown the younger sister, who had no acquaintances in the
city, around the city for a time, the two went together back
to the home of the sister, when plaintiff started to return
to her own home, and in doing so she again passed the Watkins
House, but on the opposite side of the street. After having
gone some little distance from there towards her own home
she heard some one following her on the walk. She hastened her speed, but, when near the railroad
crossing, Mr. Verberg, the defendant, walked up to her side,
and asked where she was going. She told him she was not going
very far, and then he wanted to know where she lived. To this
plaintiff responded that she did not know as that made any
difference to him. Defendant then asked what her name was.
She told him that did not make any difference to him, and
that she was attending to her own business. Defendant
continued to walk with her until she got to her own door, and
she then told him that she lived there. Plaintiff then told
him he was not much of a gentleman to be following her home,
when he said not to give him any more sauce, or he would take
her and run
her in. Plaintiff then says: "I told him I had not done
anything to be run in for; that I did not know what he could
run me in for; I guessed I had not done anything out of the
way; and so he took hold of me, and took me up town. When he
got up to the corner of Water street, I told him I was not
going any further with him, and he got hold of me, and tore
my dress pretty nearly all off of me, and tried to make me
walk, and blew a whistle, and Mr. Warren, who was across the
street, came over, and asked him what he arrested me for, and
he said he had made up his mind that he would not take any
more of my sauce, and when they got upon the corner they
stopped there, and Mr. Warren told him he knew me; that I was
a married lady. They went out to one side, and had a talk,
and Mr. Warren said: 'You can do as you have a mind to;
but I don't think you had better lock her up.' Mr.
Warren walked down Main street, and Mr. Verberg said I could
go home if I wanted to; but, if he ever caught me out again
as late as that, he would take me and lock me up. It was then
about half past ten o'clock, and I went home."
Witness further stated that defendant took hold of her arm at
and in front of her own house, and pulled her along as far as
the railroad, and as far as Water street, when
he tore her clothes because she would go no further.
Defendant gave his version of the affair, on his direct
examination by his own counsel, as follows: "I saw her
on this particular night by the Watkins House with three
other women, and they all went into the house. I slipped into
the office of the Watkins House. They stayed in there a few
minutes, and came out, and went up as far as Rose street.
They crossed over, and she came down the street alone. She
went west on Kalamazoo avenue. I walked down that way to see
what was going to be done. I believed she was plying her
vocation as a prostitute. She walked quite fast. I walked
down to the Grand Rapids & Indiana R. R., caught up to her,
and asked where she lived, and what her name was. She said it
was none of my business. I said: 'I have asked you a
civil question, and I would like to have you answer it.'
She said: 'I don't have to answer any question from
you.' I said: 'Well, I have had orders to that
effect, to make these street walkers get off the street or
lock them up.' By this time she had got in front of her
own house. I didn't know at that time that she lived
there. She said: 'I dare you to arrest me.' She said
I had no business down there. I had no business to follow
her. She was attending to her own business, and I had to
attend to mine. She dared me to lock her up; to arrest her.
At first I started away. She halloed after me: 'Will dare
you to arrest.' I came back and said: 'Come on, if
you want to go to jail. I can take you there.' So we
walked up as far as Dickinson's hardware store, and she
stopped, and I says: 'Come on; don't stop here.'
She walked along then; and right in front of the restaurant,
between the alley and back of McDonold's drug-store, she
threw herself right down on the sidewalk, and I asked her to
get up two or three times. She refused to do it. I thought by
the way she acted she had been drinking. I didn't see any
one around close by. I didn't want to have no regular
wrestle there, so I blew my whistle, and Mr. Warren came up,
and assisted me in getting her up. When we got her up to the
corner of Main and Rose streets, she said, if we would not
lock her up, she would go home, and she awfully hated to be
locked up,-begged in that way. I spoke to Mr.
Warren a few minutes, and finally told her, if she would go
home, I would let her go tonight, and, if I caught her out
again, I would lock her up, as late as that." Witness
further testified that he did not know that he tore any of
her clothing.
It will
be noticed that there is but little difference in the version
given by the parties to the controversy as to what took place
on that occasion. The court, in its charge to the jury,
stated: "The defendant claims that he had a right to
arrest the plaintiff because he was at the time of making the
arrest a policeman of the city of Kalamazoo, and that at the
time of the arrest the plaintiff was engaged in the
commission of an offense against the law. The charter and
ordinance of the city of Kalamazoo provide that policemen
shall have authority to arrest, without warrant, all persons
who shall, in their presence, be guilty of any offense,
misdemeanor, or breach of the peace, or who shall, in their
presence, be guilty of any disorderly conduct, for punishment
of which a warrant could lawfully issue. Disorderly conduct
for which an arrest might be made without a warrant, if
committed in the presence of the officer, would include what
is commonly termed 'street walking.' That is the
offense of a common prostitute offering herself for sale upon
the streets at unusual or unreasonable hours, endeavoring to
induce men to follow her for the purpose of prostitution;
and, in case such an offense is committed in the presence of
an officer, a policeman has not only the authority, but it is
also made his duty, to arrest the person so offending. So, in
order to determine whether the defendant had the right to
make the arrest complained of in this case it will be
necessary for you to inquire and determine whether the
plaintiff was at the time of the arrest engaged in the
commission of any offense, or whether the defendant had any
reasonable ground for believing she was. If you should find
that at the time she was arrested by defendant she was
conducting herself in an orderly manner, not committing any
breach of the peace, or disorderly conduct, or offense
against the law, and that the defendant had no
reason to believe she was, then the defendant had no right or
authority to arrest her, and the plaintiff would be entitled
to a verdict; and in such case it makes no difference what
her past history may have been, nor what her character was,
so far as any justification of the defendant was concerned.
But if you find, from the evidence in the case, that at the
time of the arrest the plaintiff was a woman of unchaste
character, and was upon the street engaged in street
walking,-that is, if she was upon the street for the purpose
of attracting attention, and inducing men
to follow her for purposes of prostitution,-then the
plaintiff is not entitled to recover, unless you find that
defendant used unnecessary force and violence in making the
arrest. Or if you find, from the evidence, that the plaintiff
was at the time of her arrest by the defendant an unchaste
woman, and known by the defendant to be so; and if you also
find that she had at that time the reputation of being a
common prostitute, whether that reputation was deserved or
undeserved, and that this reputation was known to defendant;
and if you further find that she was at that time upon the
public street, at such an hour and under such circumstances;
if her conduct was such that the defendant had reason to
believe that she was engaged in street walking,-then, whether
she was so engaged in street walking or not, the defendant
would be justified in making the arrest, and, unless you find
that he used unnecessary force and violence in making the
arrest, your verdict should be for the defendant. The
question, as I have already indicated to you, is not
altogether whether the plaintiff was already engaged in
street walking, but whether the defendant had reasonable
ground to believe she was, and made the arrest upon such
ground. If he had reasonable ground to believe that she was
engaged in street walking, and made the arrest on such
ground, then defendant would not be liable, although, as a
matter of fact, the plaintiff was in the streets for a legal
purpose."
In
order to better understand the force and effect of this
charge, it will be...
