Roddy v. Finnegan

• Decision Date: 21 January 1876
• Citation: 43 Md. 490
• Parties: MICHAEL RODDY v. OWEN FINNEGAN.
• Court: Maryland Court of Appeals

43 Md. 490

MICHAEL RODDY v. OWEN FINNEGAN.

Court of Appeals of Maryland

January 21, 1876

APPEAL from the Court of Common Pleas.

This was an action of trespass vi et armis, brought by the appellee against the appellant, for an alleged assault and battery. The defendant was a police officer of the city of Baltimore, and justified the acts complained of as having been done in pursuance of his duty as such officer.

First Exception.--Stated in the opinion of the Court. The ordinance referred to in the exception, among other things provides that "no person shall drive, lead or place any horse or beast of burden, or any horse attached to a cart, dray or other carriage, laden or unladen, on any of the footways of the city, and every person offending in any or either of the cases aforesaid, shall forfeit and pay for every such offence, a sum not exceeding twenty dollars provided that nothing herein contained shall prevent any person from riding, driving or leading across any of the footways, any horse or beast of burden, into or out of any lot or tenement."

Second Exception.--The counsel for the plaintiff, in order to show malice on the part of Roddy towards Finnegan having offered evidence by Malachi Leonard, that Roddy had on various occasions, arrested Finnegan, and employes of his; the counsel for the defendant, in order to rebut any presumption of malice that might arise from this testimony, proposed to ask the witness Roddy the following question: "Whether Mr. Riley, who lives next to Finnegan's stable, on Bartlett street, had ever complained to him in his official capacity, prior to this occurrence, that Finnegan was in the habit of placing horses on the footway of his, (Riley's) dwelling-houses, while unloading hay into the stable, and claimed protection from him as an officer." To which question the counsel for the plaintiff objected, and the court sustained the objection. The defendant excepted.

Third Exception.--Waived.

Fourth Exception.--The testimony being closed, the defendant offered the following prayers:

1. If the jury shall believe from the evidence in the cause, that the plaintiff pointed out to the witness Curran, the window through which the hay was to be put into the stable-loft, and told him to put the hay into the stable-loft through that window, and shall further find that the witness Curran ordered the hay to be put into the stable-loft through that window, and that it was so done; and shall further find that the said hay could not be put into the said stable-loft through the said window, so pointed out, unless the wagon containing the same, and the horses hauling the same, were placed upon the footway of Bartlett street for that purpose; and shall further find that the said horses and wagon were so placed, for said purpose, and were so found by the defendant when he came upon them as a police officer of Baltimore city, then they are instructed that the defendant, as such police officer, was justified in arresting the said plaintiff, and that he was further justified in using all the necessary means and force to make said arrest effectual; and if they further find, that the defendant used no more than the necessary means and force to make said arrest effectual, their verdict must be for the defendant.

2. If the jury shall believe from the evidence in the cause, that when the plaintiff showed the witness Curran, where he wanted the hay unloaded, and pointed out the window through which he wanted it put into his stable-loft, that he intended the horses and wagon containing the same, should be placed upon the footway of Bartlett street, for the purpose of unloading the hay; and if they shall further find that the said horses and wagon were so placed for said purpose, and that the defendant, whilst a police officer of Baltimore city, so found them when he came upon them, then they are instructed that the defendant, as such police officer, was justified in arresting the plaintiff, and was further justified in using all the necessary means and force to make said arrest effectual; and if they further find, that he used no more than the necessary means and force to make said arrest effectual, their verdict must be for the defendant.

3. That for the purpose of finding the intention spoken of in the defendant's second prayer, the jury are at liberty to take into consideration the fact, if they shall find such fact, that the plaintiff, had, prior to the unloading of the hay in the manner spoken of in the defendant's first prayer, and has since unloaded other hay into his stable-loft, whilst the horses and wagon containing the same were placed upon the footway of Bartlett street for that purpose.

4. If the jury shall believe from the evidence in the cause, that the defendant whilst a police officer of Baltimore city, came upon horses attached to a wagon laden with hay, which had been driven and placed upon the footway of Bartlett street, in front of the plaintiff's stables, and of the witness, Riley's, dwelling-house, for the purpose of unloading the hay into the plaintiff's stable, and that said horses and said wagon, were standing upon said footway of said street, in front of said stable and said dwelling-house, when the defendant came upon them, and that said hay was being unladen into said stable; and shall further find, that whilst the said defendant was ordering the driver of said horses and wagon to quit unloading the said hay, and to remove his horses and wagon from the said footway, if they shall find that he did so order, that the plaintiff told the driver to continue putting in the said hay, and not to move his horses and wagon, then they are instructed that the defendant, as such police officer, was justified in arresting the plaintiff, and was further justified in using all the necessary means and force to make such arrest effectual; and if they further find, that he used no greater means and force than were necessary to render said arrest effectual, they must find a verdict for the defendant.

5. If the jury shall believe from the evidence in the cause, that the plaintiff told the defendant, that he had ordered the horses and wagon on to the footway of Bartlett street, and shall further find, that the said horses and wagon were on said footway, in front of the plaintiff's stable, and of the witness, Riley's, dwelling-house, at the time the plaintiff so told the defendant, then the jury are instructed, that the defendant, if he believed the assertion of the plaintiff, and acted upon it as a police officer of Baltimore city; was justified in arresting the said plaintiff, and was further justified in using all the necessary means and force to make said arrest effectual; and if they further find that the defendant used no more than the necessary means and force to make said arrest effectual, then they must find a verdict for the defendant.

6. If the jury shall believe from the evidence in the cause, that the plaintiff showed the witness Curran, where the hay was to be put, and pointed out to him the window into which it was to be put; and shall further find that the witness Curran, told the driver to drive his horses and wagon upon the footway of Bartlett street, for the purpose of putting the hay into the window, pointed out to him by the plaintiff, and shall further find that it was necessary in order to put the hay into said window, to drive the horses and wagon upon the footway of Bartlett street; and shall further find that the said horses and wagon were so driven, for said purpose, and were found by the defendant when he came upon them, standing upon said footway; then they are instructed, that the defendant was justified in arresting the plaintiff, if they shall find that he was a police officer of Baltimore city, at the time of said arrest; and they are further instructed, that the defendant, as such officer, was justified in using all the necessary means and force to make said arrest effectual; and if they further find that he used no more than the necessary means to make said arrest effectual, their verdict must be for the defendant.

7. If the jury shall believe from the evidence in the cause, that the plaintiff raised his hand with intent to strike the defendant, or abused and intermeddled with the defendant, whilst as a police officer of Baltimore city, he was ordering the negro boy Joe, to remove his horses and wagon off the footway of Bartlett street, then they are instructed that the defendant, as such police officer, was justified in arresting the plaintiff, and that he was also justified in using all the necessary means and force to make said arrest effectual; and if they further find that none other than the necessary means and force were used in making said arrest effectual, their verdict must be for the defendant.

8. If the jury shall believe from the evidence in the cause, that the plaintiff pointed out to the witness, Curran, the window through which the hay was to be put into the hay-loft, and instructed him to put the hay into the stable-loft, through that window; and shall further find that the natural and probable result of that instruction was, that the wagon containing the hay, and the horses hauling the same, should be placed upon the footway of Bartlett street; that the witness Curran, so understood the instruction, and acting in pursuance thereof, did order the said wagon and horses to be put upon the footway of Bartlett street, and that the said wagon and horses were there placed for the purpose aforesaid and shall further find that the plaintiff stood by and saw this act done, and made no objection thereto, but acquiesced in the act, as done in pursuance of the instruction which he himself had given, then the plaintiff is responsible for that act; and if the...