By section 8 of the act to establish a Metropolitan Police District, passed April 15th, 1857 (chap. 569 of Laws of 1857), the members of the police force of that district are given "in every part of the State of New York, all the common law and statutory powers of constables, except for the service of civil process." And in the amendatory act passed April 10, 1860 (chap. 259 of Laws of 1860), it is declared in the 28th section, that the members of the police force of that district "shall possess in every part of the State all the common law and statutory powers of constables, except for the service of civil process."
In pursuance of information given by the defendant, Erben, the defendant, Frost, accompanied by Erben, arrested the plaintiff without warrant, took her to the police station, where she was detained a few minutes, and after some conversation with the officer in charge, she was permitted to return to her residence. For this she has brought the present action for false imprisonment.
A felony had been committed that evening, at the house *Page 468 of Mr. Henry Erben, the defendant's father. On that point there is no dispute or conflict. The plaintiff had visited the house that evening, and, according to the information upon which the defendant acted, was the only person not a member of the family, who had been in the basement. Silver had been stolen from the basement. It was there when the plaintiff entered and until after 8 o'clock; and it was missed very shortly after she left the house. Of these facts the proof was distinct and without contradiction.
Upon a report of these facts, Frost, accompanied by the defendant, Erben, made the arrest as above stated.
The inquiry is, therefore, whether under the statutes above cited and the common law rule in respect of arrests made or aided by private persons, the plaintiff was entitled to recover. There were no facts in dispute requiring the submission of any question to the jury, unless it be held that there was no justification.
I have no doubt upon the subject. The writers upon criminal law and the reported cases, so far as I have examined them, hold uniform language.
Lord TENTERDEN, Ch. J., in Beckwith v. Philby (6 Barn. Cres., 635), says: "The only question of law in this case is, whether a constable, having a reasonable cause to suspect that a person has committed a felony, may detain such person until he can be brought before a justice of the peace to have his conduct investigated. There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed; whereas a constable having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." (See Hawk P.C., book 2, chap. 12, 13; 1 Russell on Crime, 594, 5; Steph. Cr. L., 242, 3; 1 Chit. Cr. L., 15, 17; Samuel v. Payne, Doug., 358; Lawrence v. Hedger, 3 Taunt., 14; Regina v. Toohy, 2 Ld. Raymond, 130; Hobbs v. Brandscomb, *Page 469 3 Camp., 420; Davis v. Russell, 5 Bing, 354; Cowles v.Dunbar, 2 Car. and P., 565.)
In Ledwith v. Catchpole (Cald. Cas., 291, and 1st Burns, Justice, p. 130, 1), Lord MANSFIELD, says, in an action against the officer: "The question is, whether a felony has been committed or not. And then the fundamental distinction is, that if a felony has actually been committed, a private person may, as well as a police officer, arrest; if not, the question always turns upon this, was the arrest bona fide? Was the act done fairly and in pursuit of an offender, or by design, or malice, or ill will? * * * It would be a terrible thing, if, under probable cause, an arrest could not be made * *; many an innocent man has and may be taken up upon suspicion; but the mischief and inconvenience to the public in this point of view, is comparatively nothing; it is of great consequence to the police of the country."
The justification of an arrest by a private person was made inAllen v. Wright (8 Carr and Payne, 522), to depend on first, the fact that a felony had been actually committed; and second, that the circumstances were such that a reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it.
These principles are affirmed in this State in Mix v. Clute (3 Wend., 350), in very distinct terms. "If a felony has been committed by the person arrested, the arrest may be justified by any person without warrant. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to believe."
The fact being proved in this case that a felony had in fact been committed, I have no hesitation in saying that, however unfortunate it was to the plaintiff, the circumstances fully justified the suspicion which led to her arrest. It is claimed *Page 470 that these circumstances should have been submitted to the jury. Not so; a verdict finding no reasonable ground of suspicion would have been against evidence. There was no conflict of testimony, and that the arrest was made without malice, in good faith, and upon reasonable grounds, is to my mind incontrovertible.
The appeal appears to me to have been taken upon a misapprehension of the construction and effect of the statutes conferring power on the policeman. I think the power perfectly clear, and I notice that the rules and regulations of the board of police are in conformity therewith; and it is made the duty of the officer to take the arrested person immediately before the Police Court, or if made at night or when the courts are not open, immediately to the station house, where the officer on duty is required to examine whether there is reasonable ground for the complaint, and if so, to cause the party to be taken before the court the next morning. Under such a system, innocent parties may sometimes be subjected to inconvenience and mortification; but any more lax rules would be greatly dangerous to the peace of the community and make the escape of criminals frequent and easy.
The judgment should be affirmed.
All the judges concurring, judgment affirmed.