I must dissent from the conclusions reached by Judge VANN. As I read the record, there is absolutely no question of law raised for our review. The charge made against the officer by the mayor of the city was that he had made an illegal arrest of a citizen without a warrant *Page 236 and without probable cause; that he had illegally arrested and detained, and brought to the station house, one Lewis Richardson, and then declined to make a charge against him. He was given notice of the charge on the 3d of May, and required to be present and answer thereto on the 5th. He then appeared and asked for an adjournment until the 7th, which was granted, and on the 7th he reported himself as ready for trial and it proceeded. His own testimony showed that he made the arrest without a warrant; that he had not seen any disorderly conduct, and would not swear that the person whom he arrested was drunk. He also conceded that he had been furnished with the book of rules containing the duties of policemen, and yet he did not know that he had no power to make an arrest without a warrant for misdemeanors that were not committed in his presence, but supposed if a person made a complaint against another, it was his duty to arrest the person. At the conclusion of the trial the minutes of the commissioners of police showed that the relator was unanimously dismissed from the force "for incompetency, and for trying to deceive the board." The return, however, shows that he was found guilty of the charge of making an illegal arrest, and was dismissed from the force because of such finding, and for incompetency and endeavoring to deceive the board. I think that we are bound by the return made by the commissioners, rather than by the brief minutes kept upon the trial; but, even assuming that he was discharged for incompetency and for endeavoring to deceive the board, as stated in the minutes, no legal error is presented for which we can reverse. The making of an illegal arrest is a serious matter. A person may be liable criminally therefor, as for an assault, and also to a civil action for damages. By way of excusing himself, he said that he had often made like arrests without warrants, and supposed that he had a right to. The fact, therefore, that he made the arrest without a warrant, of itself indicated incompetency, and his own testimony showed that he was wholly ignorant of the rules of the force, which should govern and control his action. Incompetency is not a crime. It is, however, a ground upon which *Page 237 a policeman may properly be removed. It is not so aggravated as the charge made, it is true, but is lesser and included therein.
It is well settled that, in the execution of the criminal law, a person may be convicted of a lesser crime than that charged in the indictment, if it be embraced in and covered by the facts charged. He was not charged with endeavoring to deceive the board, and it is possible that his conviction and removal should not have been based upon this finding, but he was convicted of incompetency, and for this he was removed.
It is intimated that the sentence was harsh. It does not so appear to me. If he is incompetent he ought not to be retained. The police commissioners, in the discharge of their public duties, have no right to retain an incompetent man, and the very fact that he had interfered on a number of occasions with the rights and liberty of citizens illegally, fully justified the action of the board.
The order should be affirmed.
PARKER, Ch. J., O'BRIEN, BARTLETT and MARTIN, JJ., concur with VANN, J., for reversal; GRAY, J., concurs with HAIGHT, J., for affirmance.
Order reversed.