State v. Lewis

• Decision Date: 31 January 1893
• Citation: 33 N.E. 405,50 Ohio St. 179
• Parties: STATE v. LEWIS.
• Court: Ohio Supreme Court

33 N.E. 405

50 Ohio St. 179

STATE v. LEWIS.

Supreme Court of Ohio.

January 31, 1893

Exceptions to court of common pleas, Highland county.

One Lewis was indicted for murder in the second degree. To certain rulings of the court, the state excepts. Exceptions sustained.

Syllabus by the Court

Where a breach of the peace is committed in the presence of a marshal of an incorporated village or city, he may, without warrant arrest the persons who participate therein. If, however, the officer was absent when such offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray, and of the parties to it, was the statements of bystanders who witnessed it, he has no authority, in law, to pursue and arrest the persons charged with the offense without first obtaining a legal warrant therefor.

George L. Garrett, Pros. Atty., T. H. Hogsett, and R. M. Dittey, for the State.

M. R. Patterson and E. N. Huggins, for defendant.

BRADBURY, C. J.

The defendant was indicted for murder in the second degree, for causing the death of one Edward Elliott, in the course of an attempt to arrest the latter for the commission of a misdemeanor. The defendant was marshal of the village of Hillsborough, in Highland county, and, being put upon trial for the homicide, it became material to inquire into the authority of such officers to make arrests without a written warrant therefor; and after the evidence had been given the prosecuting attorney requested the court to give to the jury certain legal propositions, the object of which was to define the authority vested by law in the marshal of an incorporated village to arrest without written warrant alleged offenders against the laws of the state or the ordinances of the village. The third proposition requested reads as follows: ‘ If you find from the testimony that the breach of the peace did not occur in the presence of the defendant, and was over, and the deceased had ceased from the commission of a breach of the peace, and that the affray was ended, and the deceased was not attempting a continuation of the breach of the peace, but was about his peaceful and lawful avocations, when the defendant arrived at the place where the affray had taken place, and the defendant did not attempt to make the arrest until he had gained such knowledge as he possessed of the affair from inquiries made of third persons, such arrest or attempted arrest was unlawful, and the deceased had a right to resist such arrest or attempted arrest; and the defendant, under these circumstances, was himself in the performance of which he must be held responsible.’ This proposition the court refused to give, and, instead, gave substantially its converse, in the following terms: ‘ It is not disputed that, a short time before Elliott was killed, he had a quarrel in Doorley's saloon with one William Eakin, and knocked him down. That was a violation of one of the ordinances of Hillsborough. The fact that Eakin called him a liar was no justification, in law, for knocking him down. If you find from the evidence that within a short time after this occurred,-as soon as possible after it occurred,-Lewis was sent for to arrest Elliott; that Lewis, as marshal of the town, went at once in pursuit of Elliott; that Elliott, on seeing Lewis approach, started to leave the town in a hurried manner; that Lewis pursued him,-then I charge you that Lewis upon overtaking Elliott, had the lawful right to arrest him, notwithstanding he had no warrant for that purpose.’ To the charge as given, and to the refusal to charge as requested, the prosecuting attorney excepted, and, embodying them in a bill of exceptions, has brought them to this court for review, by virtue of sections 7305, 7306, Rev. St.

That the defendant was marshal of the village of Hillsborough, did not witness the affray, nor procure from a magistrate a warrant for the arrest of the deceased, are conceded facts. In addition to this, the testimony given in behalf of the state tended to prove that the deceased had participated in an affray in a saloon within the village of Hillsborough, on the day of the homicide; that the defendant was absent, and did not hear or see any part of the affray; that a few minutes thereafter he received information that a breach of the peace had been committed, and at once went to the saloon where it had occurred; that when he reached the saloon the parties to it had gone, and good order had been restored; that upon inquiry the defendant was told that an affray had been committed, in which the deceased had participated, and, ascertaining the direction taken by the deceased, the defendant, without obtaining a warrant, immediately pursued, soon after overtook and proceeded to arrest him for that offense; that the deceased, though having knowledge of the official character of the defendant, resisted the arrest, and in the resulting struggle was shot and killed by the defendant.

The authority of peace officers to arrest without a warrant from a magistrate is a subject that has received the attention of courts and text writers from an early period in the history and development of the common law in both England and America. Some of the earlier English authorities, while the prerogatives of the government were more highly considered than at a later day, maintained the power. 2 Hale, P. C. 90. But even then the doctrine met with a resistance which finally overturned it. 1 East, P.C. 305, Reg. v. Tooley, 2 Ld. Ray m. 1301, where Lord Holt, in delivering the opinion of the majority of the court, is reported as saying: ‘ The prisoners in this case had sufficient provocation; for, if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion; much more where it is done under a color of justice, and where the liberty of the subject is invaded it is a provocation to all the subjects of England. He said that a constable cannot arrest but when he sees an actual breach of the peace, and, if the affray be over, he cannot arrest.’ See, also, 2 Hawk. P. C. c. 13, § 8. The later English authorities seem to settle the law there in accordance with the views of Lord Holt. Coupey v. Henley, 2 Esp. 540; Baynes v. Brewster, 2 Adol. & E. (N. S.) 375; Reg. v. Mabel, 9 Car. & P. 474; Timothy v. Simpson, 1 Comp. M. & R. 757; Grant v. Moser, 5 Man. & G. 123; 1 Russ. Crimes, (8th Ed.) 410, 805; Cook v. Nethercote, 6 Car. & P. 741. Alderson, B., in that case, in summing up, saying: ‘ If, however, there had been an affray, and that affray were over, then the constable had not, and ought not to have, the power of apprehending the persons engaged in it; for the power is given him by law to prevent a breach of the peace, and where a breach of the peace had been committed, and was over, the constable must proceed in the same way as any other person, namely, by obtaining a warrant from a magistrate.’ Id. 744. The American authorities establish the same rule. Roberts v. State, 14 Mo. 138; People v. Haley, 48 Mich. 495,12 N.W. 671; Phillips v. Trull, 11 Johns. 486; Pow v. Beckner, 3 Ind. 475; 1 Bish. Crim. Proc. 183, 184; Quinn v. Heisel, 40 Mich. 576; In re Way, 41 Mich. 299,1 N.W. 1021; Com. v. Carey, 12 Cush. 246.

This court has held that a city council may lawfully authorize police officers to arrest upon view any person found in the act of violating the ordinances of the city, made for the preservation of good order and public convenience, (White v Kent, 11 Ohio St. 550; ) also, that the officer, in making arrest upon view, is not bound to disclose his official character, (Wolf v. State, 19 Ohio St. 248; ) and that it is lawful to arrest, without warrant, one who is unlawfully carrying a concealed weapon, though the officer had no previous knowledge of the fact, if he acted bona fide upon knowledge which induced an honest belief that the person was violating the law in this respect, (Ballard v. State, 43 Ohio St. 340, 1 N.E. 76.) But the facts in those cases disclose that the person arrested was taken while in the act of committing the offense for which he was...