State v. District Court of Eighth Judicial Dist. in and for Cascade County
| Decision Date | 03 May 1924 |
| Docket Number | 5515. |
| Citation | 225 P. 1000,70 Mont. 378 |
| Parties | STATE EX REL. SADLER v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY ET AL. |
| Court | Montana Supreme Court |
Original proceeding by State, on the application of C. C. Sadler for writ of prohibition directed against the District Court of the Eighth Judicial District for the County of Cascade, and J. B. Leslie, as Judge thereof, and Fred. A. Ewald, County attorney. Writ granted.
Ayers & Toole, of Great Falls, for relator.
F. A Ewald, of Great Falls, for respondents.
This is an original application by C. C. Sadler for a writ of prohibition directed to the district court of Cascade county and to J. B. Leslie, one of the judges thereof, and to Fred. A. Ewald, county attorney of that county, to enjoin restrain, and prohibit the use of certain articles in the trial of a criminal prosecution in said court against relator.
On the evening of March 6, 1924, one N. A. Whittaker and one Larson who were employed by the county attorney to obtain evidence in the prosecution of cases involving the violation of the law relating to intoxicating liquors, were at Sunburst, Mont., and there saw the relator on the train going to Sweet Grass. They got on the train, and at Sweet Grass the relator got off on the left-hand side of the train looking toward the engine. The relator at that time had a black grip or hand bag. They followed him to a place on the Canadian line where there was a sign, "Taxi Office," over the door. Soon thereafter, they saw Sadler near the train talking with a young man who had an automobile. The young man picked up the grip and carried it to the train, when he set it down, and relator picked it up and, using both hands, threw the same upon the platform of the Pullman car on the train and got aboard. Whittaker and Larson then boarded the train, and on the way to Great Falls, Mont., on the train had a conversation with Sadler in which he informed them that he had made five extra trips to Sweet Grass, besides his regular runs, up to Canada for liquor since Thanksgiving, and that on those trips he got some good stuff, and also that if his friend, a banker at Calgary, was appointed Governor General of Liquor at Alberta, he would make more money than any man in the state of Montana. Relator was a railway conductor, and his regular run was between Great Falls and Sweet Grass, although he was not then in charge of the train but a mere passenger. When the train arrived at Great Falls, Whittaker got off first, and Sadler, carrying his grip, next, followed by Larson. When Sadler started toward the taxicabs, Whittaker stepped in front of him and told him that he was under arrest and that he wanted to search the grip, at the same time placing his arm across the front of his chest to stop relator, who told Whittaker he could not search his grip or personal belongings without a search warrant, and tried to push Whittaker aside. Whittaker testified that the reason he arrested Sadler at the depot was that he was pretty certain that there was liquor in the grip from things that he had seen, by his (Sadler's) own actions and people that he had heard talk about it; that Van Wert told him and Larson to arrest Sadler if they saw him with a grip that looked suspicious. After relator was placed under arrest, the grip and a revolver were forcibly taken from him by Whittaker and Larson; what occurred thereafter becomes unimportant.
On March 7, 1924, an information was filed against relator charging him with "the illegal transportation of intoxicating liquor" and the "illegal possession of intoxicating liquor." On the following day he was arraigned and pleaded "not guilty" thereto. On March 14, 1924, the case was set for trial for March 27, 1924, upon which date the trial of the case was commenced and resulted in a disagreement of the jury. At the trial the relator denied all the material facts above stated, and testified that the hand bag taken from him in the scuffle was his wife's, and that it contained some of her personal effects and the revolver. Relator denied that he was the owner of the hand bag and intoxicating liquor alleged by Whittaker and Larson to have been taken from him, and stated that the first time he ever saw the hand bag and intoxicating liquor was when the same were used by the state in the trial. The case of State of Montana v. C. C. Sadler was again set to be tried on April 10, 1924. On April 5, 1924, Sadler filed in the district court his petition for a writ of prohibition to suppress the use of the hand bag, pistol, and intoxicating liquor as evidence, directed against respondent Fred. A. Ewald as county attorney, and the clerk of court, which said application was heard on the 9th day of April, 1924, and denied by the district court. Thereafter on April 9, 1924, relator herein filed his motion to suppress said evidence, which motion the court declined to hear for the reason that the same was not timely made.
The relator contends that Whittaker and Larson had no right to arrest him when they did, and seize his grip and thereafter search the same, and that by doing so they violated his constitutional rights, as provided in section 7 of article 3 of the Constitution of this state; while the respondents contend that Whittaker and Larson had the right to arrest relator and seize the grip and revolver, for the reason that relator was then committing a misdemeanor in their presence, that none of the constitutional rights of the relator were violated because upon the first trial of the case he denied that the hand bag produced at the trial was his or the one that was taken from him, and that any whisky was taken from him. The respondents further contend that, if Whittaker and Larson had no right to arrest relator, there was no search or seizure as contemplated by the Constitution, but only an overt act by private individuals.
In the determination of relator's contention we must first determine when the arrest was made, and in that connection what constitutes an arrest. To constitute an
"arrest," four requisites are involved: A purpose to take the person into the custody of the law; under a real or pretended authority; an actual or constructive seizure or detention of his person; so understood by the person arrested. Grissom v. Lawler, 10 Ala. App. 540, 65 So. 705; Goodell v. Tower, 77 Vt. 61, 58 A. 790, 107 Am. St. Rep. 745; Johnson v. N. & W. Ry., 82 W.Va. 692, 97 S.E. 189, 6 A. L. R. 1469; Note 19 Am. Dec. 485; Prof. Wilgus' article on "Arrest Without," volume XII, No. 6, Michigan Law Review, p. 541. A constructive detention is accomplished by merely touching, however slightly, the body of the accused by the person making the arrest and for that purpose, although he does not succeed in stopping or holding him even for an instant. Whitehead v. Keyes, 3 Allen (Mass.) 495, 81 Am. Dec. 672; People v. McLean, 68 Mich. 480, 36 N.W. 231. An "arrest" is the taking, seizing, or detaining of the person of another either by touching, or putting hands on him, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest. 2 R. C. L. p. 445.
From the above authorities there can be no doubt that if the relator was arrested at all, he was arrested at the depot in Great Falls, Mont., when Whittaker approached him and told him he was under arrest and placed his arm across his chest to impede his progress; so that, in determining whether the arrest of relator was lawful, only such facts and circumstances which occurred prior to such time should be considered.
A private person may arrest another for a public offense committed or attempted in his presence. Rev. Codes 1921, § 11754; State v. Bradshaw, 53 Mont. 96, 161 P. 710. And in the case of State ex rel. Neville v. Mullen, 63 Mont. 50, 207 P. 634, this court held that the proper construction of the above statute, when applied to an officer, was that the facts...
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