(dissenting) — I am unable to concur in the conclusion reached by the majority. A careful reading of the record has convinced me that the evidence does not justify the finding of the trial court, to the effect that the defendants Hughes, Stewart, Flynn, and Dalehart concerted and assembled together for the common purpose and with the joint intent of stopping at night, on a public highway and without a warrant, any automobiles which they suspected of containing intoxicating liquor being conveyed in violation of law. On the contrary, I think the evidence clearly demonstrates that their purpose was merely to *242signal suspected automobiles to stop, without any intent to enforce a stopping if the driver of the automobile refused to obey the signal.
This being their purpose and intent, I am unable to conclude that appellants were engaged in an unlawful enterprise. In this state it is an offense against the laws to transport liquor on the highways in quantities in excess of a limited amount. These officers, having information that such an offense was being perpetrated, owed a duty to intercept the perpetrators. If they caught the perpetrators in the commission of the act they could lawfully arrest them, although they had no warrant of arrest. Under our statutes, as at the common law, an officer may arrest, without a warrant, an offender caught in the commission of an offense, even though the offense be a misdemeanor.
I need not argue that, when two or more persons are acting lawfully together in the furtherance of a com-, mon lawful purpose, one is not liable for an assault committed by another, if committed without his concurrence, although committed in furtherance of the common purpose. This is horn-book. law.
Since, therefore, I can find no unlawful intent or purpose on the part of the appellants, and can find no participation in the excessive unlawful act resulting in the injury to the respondents, I can but conclude that the recovery permitted to stand is contrary to the rules governing in such cases. I think the judgment should be reversed.