State v. Taylor

• Decision Date: 04 February 1898
• Court: Vermont Supreme Court
• Parties: STATE v. TAYLOR et al.

39 A. 447

70 Vt. 1

STATE

v. TAYLOR et al.

Supreme Court of Vermont Windsor.

Feb. 4, 1898.

Exceptions from Windsor county court; Taft, Judge.

Indictment of G. O. Taylor and John O'Donald for an assault with intent to kill and murder. Verdict and judgment of guilty, and sentence imposed at the respondents' request. The respondents excepted. Exceptions sustained.

W. E. Johnson and Butler & Maloney, for respondents.

J. C. Enright, State's Atty., and W. W. Stickney, for the State.

MUNSON, J. The alleged assault was committed upon Paul Tinkham, constable of Rochester, and three persons acting under him, while they were effecting an arrest of the respondents and two others, without a warrant, on suspicion of felony. The officer acted upon information received from Brandon by telephone, to the effect that the post office at Ticonderoga, N. Y., had been burglarized the night before, and that four persons suspected of the crime had left Porestdale, going in the direction of Rochester. When met by the officer and his assistants, the suspected party were coming along the highway in a wagon, driven by a liveryman from Porestdale. The jury have found, under the charge of the court, that when Tinkham met the respondents' party he said to them that he arrested them by the authority of the state of Vermont, and that, upon inquiry being made as to which was the officer, Tinkham was designated as such by one of his party. The remainder of the transaction must be taken to have been in accordance with the testimony most favorable to the respondents' claim. The purport of this was that one of the respondents' party then asked Tinkham if he had any papers, and that Tinkham thereupon pulled a revolver from his pocket, saying that was all the papers he needed, at once returning the revolver to his pocket; and that respondent Taylor then said, with an oath, "You can't take this party Without papers;" and that upon this all four of the suspected persons commenced to get out of the wagon, some of them firing at the constable's party as they did so.

The jury were instructed, in substance, that, if Tinkham had reasonable cause to suspect that the respondents had committed a burglary, he could arrest them without a warrant; and that if he told them that he arrested them by the authority of the state of Vermont, and if they knew he was an officer, it was their duty to submit; and that, if they shot the officer under these circumstances, they were guilty of an assault with intent to murder. The respondents insist that the officer had no right to arrest without a warrant for a felony committed in another state; and that, if he had that right, there was a failure to disclose his authority, which justified their resistance; and that, in any event, the manner of the arrest was such that the grade of the offense should have been left to the determination of the jury. It has been held in most of the states that, when one charged with the commission of a felony in one state escapes to another, he may be there arrested and detained before a demand for his return has been made by the governor of the state from which he has fled. In most of the cases where this doctrine has been enunciated the arrest was made upon the warrant of a magistrate. But in State v. Anderson, 1 Hill (S. C.) 327, it was held that an arrest by a private person, without a warrant, could be justified by showing prima facie that a felony had been committed in another state, and that the party arrested was the perpetrator. It is clearly the tenor of the decisions that the machinery provided for the arrest of local offenders is available for the arrest of fugitives from another jurisdiction; and it must follow that, when the arrest without warrant is made by an officer, it will be sufficient for his justification if it appear that he had reasonable cause to believe that the person arrested had committed a felony in another state, although more than this may be required for his detention, when brought before a magistrate. So, in Ex parte Henry, 20 How. Prac. 185, it was said that the officers were undoubtedly authorized to arrest the prisoner upon reasonable ground of suspicion, although there was no proof on the hearing that the suspicion was well founded. It is well settled that the person whose arrest is attempted must have notice of the authority and purpose of the person who undertakes to arrest him. The first case in which this matter is elaborately treated is that of Mackaley, reported in Cro. Jac. 279, and more fully in 9 Coke, 61. The arrest was in London, by a sergeant of the mace. The officer, having his mace at his back, but without showing it, clasped the prisoner about the body, saying, "I arrest you in the king's name," at the suit of such a person, for such a debt; whereupon the officer was attacked, and mortally wounded. The prisoner having been convicted of murder, the questions presented were considered by all the judges of England. It was argued that the arrest was illegal, because made in the darkness of night, when the prisoner could not know the officer. To this the court said: "Although he cannot see the officer, yet when he hears him say, Tarrest you in the king's name,' etc., he ought to obey him, and, if the officer has not a lawful warrant, he shall have the action of false imprisonment." It was further objected that the statement made by the officer at the moment of the arrest did not contain all the particulars held essential in Countess of Rutland's Case, 6 Coke, 52; but it was said that the requirement in that case was to be applied when the party submits himself to the arrest, and not when he resists the officer, and interrupts him, before he can speak all his words. As to the necessity of producing the mace in connection with the words of arrest, it was said to be beyond question that the sergeant had not to show his mace, and that, if an officer were required to show his mace, it would be a warning for the party to fly. So, upon the whole case, it was unanimously held that if an officer, who hath execution of process, be slain in doing his duty, it is murder in him who kills him, and that there need not be any inquiry of malice. In Rex v. Woolmer, 1 Moody, 334, decided two centuries later, the judges went even further in sustaining a conviction, although not with entire unanimity. This case grew out of an arrest without warrant on information of an attempt torob. The arrest was made in the night, by a watchman, dressed in a watchman's coat, and carrying a lantern. The jury found that the prisoner knew him to be a watchman. All he said to the prisoner was, "You must go back, and come along with me." He did not explain why, nor was any charge against the prisoner stated. Here it might be urged with some force that, in view of the failure to use any formal words of arrest, there should have been a statement of the charge for which the prisoner was wanted, in order that he might clearly understand that the watchman was acting in his official capacity. But it was resolved, by 9 of the 13 judges who considered the case, that "the watchman could legally arrest the prisoner without saying that he had a charge of robbery against him, though the prisoner had in fact done nothing to warrant the arrest," and that, had death ensued, it would have been murder. This case is ample authority to sustain the sufficiency of the words of arrest employed on this occasion, unless it be considered that a more explicit statement was required by the fact that inquiry was made regarding the possession of papers.

It is frequently said in the text-books and in judicial discussions that an officer must show his warrant, or state the grounds of the arrest, if demanded. But an examination of the authorities will show conclusively that this is not a part of the arrest, but a duty which immediately follows it. Upon submitting to the officer, the arrested party is entitled to this Information; but he cannot put off the arrest, and increase his chances of escape, by requiring an explanation in advance. In Bellows v. Shannon, 2 Hill, 86, where it is said that either before or at the moment of the arrest the officer ought to say enough to show ...