Pritchett v. Sullivan

• Decision Date: 10 October 1910
• Docket Number: 3,290.
• Citation: 182 F. 480
• Parties: PRITCHETT et al. v. SULLIVAN.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F. 480

PRITCHETT et al. v. SULLIVAN.

No. 3,290.

United States Court of Appeals, Eighth Circuit.

October 10, 1910

Fred S Jackson (W. W. Pease, on the brief), for plaintiffs in error.

J. V Humphrey (W. S. Roark, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

Samuel Sullivan sued E. J. Pritchett, H. W. Folck, Jr., and H. C Church for false imprisonment and malicious prosecution. There was a verdict and judgment for the plaintiff, and the defendants prosecuted this writ of error.

The plaintiff averred in his petition that Pritchett, who was city marshal of Junction City, Kan., and Folck and Church policemen, unlawfully arrested and confined him without a warrant or other legal process and without any complaint or affidavit having been filed in court or before a magistrate charging him with an offense against the laws of the state; that when arrested he was informed he was under suspicion of being a crook and of having stolen a diamond ring then in his possession; but that he had committed no offense either in the presence or absence of the officers, and no felony had been committed of which there was probable cause for believing him guilty. This stated a case of false imprisonment. There was also set forth in the same count with much detail a cause of action for malicious prosecution. The answer contained a general denial and an averment that the arrest and imprisonment of the plaintiff was lawful.

It appeared at the trial that when the officers arrested the plaintiff he had committed no offense in their presence and they had no warrant for his arrest. They acted on suspicion that he had stolen, or had in his possession knowing it to have been stolen, jewelry of sufficient value to make the offense, had there been one, a felony under the laws of the state of Kansas. Gen. St Kan. 1901, Secs. 2069, 2070, 2085, 5444. Testimony was given on behalf of the officers as to the circumstances upon which they acted; but the jury were not directed to determine its verity, nor was its bearing upon the right to arrest without a warrant-- whether the testimony, if true, showed reasonable ground for their belief that a felony had been committed-- considered or passed on by the trial court. The view of the court was that public peace officers can in no case and under no circumstances make an arrest without a warrant unless they actually witness the commission of the offense. This is manifest from the following instruction given the jury:

'There are certain cases in which a police officer may arrest the citizen without any warrant. That is what is called an arrest on view; that is to say, when the officer sees a person doing some act that violates the law. No police officer or other officer has any right to arrest any citizen for anything unless he sees him violate the law, unless on a warrant. And no one, no citizen, has the right to allow, or should allow, any officer to arrest him unless he has violated the law, and the officer knows that, either from a warrant he has in his hand, or seeing him do it, and no officer who has a proper regard for his duty will do it. On the other hand, if a police officer sees any one commit a violation of the law, either of the state or of the city, he may then arrest him; or, if any citizen be charged with the violation of a law of the state or of the city, and the police officer has not seen him do it, but some one swears that he has done the act, on that oath there may be a warrant based, and the officer may lawfully arrest such person on the warrant.'

That this was not a mere inadvertence corrected by other instructions, but was the deliberate opinion of the court emphasized and impressed on the jury, appears from the following excerpts from the charge:

'The plaintiff had a constitutional right to have his person inviolate from search unless some one had seen him violate the law, or unless some one had made a positive oath that he had violated it and the officer had a warrant for his arrest. I say to you, in my judgment, as a matter of law, the arrest was not proper. The search was not proper because it is not claimed here that they had seen this plaintiff violate any law nor had they a warrant for his arrest.

'If you believe from the greater weight of all the credible testimony in the case that the city marshal instructed these policemen to arrest the plaintiff in this case and bring him to the police station, and that they did so do, and that they there searched him, and that he was put in jail there, that they had not seen him commit any offense, had no warrant upon which he was arrested, and he had committed no offense, then, in that event, it will be your duty to find against the marshal and the policemen, defendants.

'As I have said to you, if you believe the defendants, the two policemen, under the instructions of the city marshal, arrested this man at the time they found him at that store, that is, if they placed him under arrest and took him to the police station, if they had no warrant or had not seen him violate the law-- and there is no pretense, so far as I recall, that they had a warrant or saw him do any act which violated the law-- and there searched him and threw him in jail, then the plaintiff will be entitled to recover.

'The individual, when he commits an offense against the law, then becomes amenable to arrest in a certain lawful manner; but police officers, no more than any one else, have any right to arrest unless the law has been violated in their presence, or they have a warrant. If the law has been violated in their presence-- and you believe in this case this plaintiff has violated any law in their presence-- any law of the city or of the state, then they would have the right to arrest him; but, unless he had, they would not be allowed to arrest him except upon a warrant which was properly procured from some officer who would be allowed to issue it.'

The charge of the court was erroneous. In the necessary adjustment in civilized society between individual right and liberty on the one hand and public right to protection on the other, it was early established in England that public officers specially charged with the enforcement of the laws and the preservation of the peace might lawfully arrest without a warrant and without view when they had reasonable grounds for believing a felony had been committed; and, except where changed by statute, such is the law of this country. A contrary rule would seriously obstruct, and in many cases defeat, the administration of justice, especially where, as here, a multitude of territorial lines limit jurisdiction and confine the running of legal process. The scene of the crime and the eyewitnesses behind him, a leisurely movement of the criminal ahead of the deliberate procedure of the courts, would insure long immunity.

In Ledwith v. Catchpole, Cald. Cas. 291, 295, Lord Mansfield, referring to descriptive circulars and advertisements of crimes committed, said:

'It would be a terrible thing, if under probable cause an arrest could not be made. * * * Many an innocent man...