(concurring) — I disagree with the restrictive statement of the law of arrest as pronounced in the majority opinion. It is the law, as stated by Judge Fullerton in his dissent, that the ‘ ‘ officers, having information that an offense was being perpetrated, owed a duty to intercept the perpetrators. If they *243caught the perpetrators in the commission of the act, they conld 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 he a misdemeanor. ’ ’
But neither does this statement cover the ground fully.
“While an officer may arrest without a warrant under certain circumstances, as already seen, he may not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to avoid mistakes. The reasonable and probable grounds that will justify an officer in arresting without a warrant one whom he suspects of felony must be such as would actuate a reasonable man acting in good faith. The rule is substantially the same as that in regard to a probable cause in actions for malicious prosecution, and there is no difference in its application between arrests for felonies and arrests for misdemeanors. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person’s guilt, based upon facts or circumstances within the officer’s own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer sufficient to materially impeach the information received. . . . An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances, or credible information calculated to produce such suspicion or belief.” 5 O. J. 416.
In this case, none of these officers, nor the acting officer or private citizen, took any precautions to avoid mistakes in arresting innocent persons. They had no foundation for belief that the persons intercepted were the guilty persons, and they took no precautions, such as wearing uniforms, badges or otherwise, to give *244notice of their official character to any unknown persons they might intercept and arrest without warrant, upon their information. Defendant Dalehart, the officer who fired the shots and who has not appealed from the judgment below, certainly could hardly justify his mistaken act.
The trial court found that Dalehart, together with Hughes, Stewart and Flynn, “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 automobile which they suspected of containing intoxicating liquor being conveyed in violation of law, and if such liquor should be found,” etc. This finding, it seems to me, is justified by the facts, and merely puts all the parties upon the same ground as would he private citizens so engaged, for their joint intent of stopping at night, on a public highway and without a warrant, any automobile which they suspected of containing intoxicating liquor being conveyed in violation of law, was unlawful and unjustifiable. The assault and injury happened in consequence thereof and in pursuance of their joint purpose and common intent to stop any such suspected automobile, and resulted in the joint or common commission of the tort and damage.
The facts being so found and being supported by the record, the judgment appealed from was proper. I therefore concur in the result for the foregoing reasons.