Webb v. State
| Decision Date | 02 March 1889 |
| Parties | WEBB v. STATE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to court of quarter sessions, Morris county; CHILDS, Judge.
Alfred Mills, for plaintiff in error. Williard W. Cutler, for the State.
The plaintiff in error was a policeman, having the powers of a county constable. It appeared that, a complaint having been made before a justice of the peace that one Ann Dugan had sold liquor contrary to law, a warrant had been issued for her apprehension, and that such warrant had been delivered, not to the defendant, but to a constable of the county. This precept was addressed in the usual form, to any constable of the county. Under these circumstances, the plaintiff attempted to arrest the alleged culprit, not at the time having, and never having had, the warrant referred to in his possession; and such arrest was forcibly prevented by the husband of the woman, and thereupon the plaintiff took the man into custody upon the charge that he had by force prevented him from executing his duty as a peace-officer. This latter arrest was regarded as illegal, and the plaintiff was thereupon indicted and convicted of an assault and battery upon the husband of Ann Dugan. The complaint is that the court of quarter sessions refused to charge the jury that the plaintiff in error had the right to arrest Ann Dugan, but, to the contrary, told the jury that such act was unjustifiable, and altogether illegal. We think that the instruction thus questioned was entirely right. It has always been, in the common law, the rule that a constable or other peace-officer, in cases of mere misdemeanor, could not take the offender, unless in some instances where the offense had been committed in his presence. This is the principle that has also always prevailed in this state. I remember arguing the question many years ago before this court, and the prevalence of the common-law doctrine on the subject was then established, but the case does not appear to have been reported. Nor is the present instance to be differentiated on the ground that a complaint had been made and a warrant had been issued directed to any constable of the county. Such a proceeding could in nowise empower the plaintiff, as such warrant was not in his hands to be executed, but, on the contrary, was in the possession of another officer. In the case of Codd v. Cabe, L. R. 1 Exch. Div. 352, this precise question was decided in the way above...
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