(dissenting)—(1) Two elements are necessary to justify an arrest without warrant: a real belief and reasonable grounds for such belief that the party arrested committed the felony. 2 R. C. L. 450. The very fact in this casé that Murphy was a stranger to all of the parties, the accused, the complaining witness, and the prosecuting attorney of Whatcom county, removes. any possibility of contending that he acted without a real belief of the guilt of the accused. There are three distinct things which gave him this belief— the letter from Prosecutor Brown, the accusations of Leighton, and the demeanor of Eberhart when in conversation with Leighton and Murphy in Murphy’s office. It is difficult to say that the evidence on these three grounds is in conflict. There is no dispute as to the letter from Prosecuting Attorney Brown. It is in evidence and speaks for itself. Nor is there conflict as to the conduct of Eberhart while in the sheriff’s office nor what was told to the sheriff by Leighton. The facts causing his belief in Eberhart’s guilt are established. This being so, it was for the court to say *171whether or not they constituted probable cause or reasonable grounds for suspicion.
“The question of probable cause, or reasonable grounds for suspicion in making an arrest, is one of law, unless the evidence out of which- it arises is conflicting, in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and to submit to them only the question as to the existence of such facts. ” 2 R. C. L. 451.
“What facts and circumstances amount to probable cause is a question of law.” Burk v. Howley, 179 Pa. St. 539, 36 Atl. 327, 57 Am. St. 607.
By analogy, the case of Borg v. Bringhurst, 105 Wash. 521, 178 Pac. 450, renders this contention more plain. The fact that respondent has succeeded in the courts of this state in the contention that technically he had committed no crime should be of no effect in the determination of this question of probable cause for arrest without warrant. As said in Burk v. Howley, supra:
“ ‘Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.’ ”
(2)- I cannot agree with the majority opinion and it seems to me that, in denying the motion for continuance, the trial court erred. This motion was based, in part, on the fact of the absence of W. P. Brown, the prosecuting attorney of Whatcom county, engaged in war service in Italy. The trial court was of the opinion that the testimony of Brown would be merely cumulative of Murphy’s testimony. The defendants set forth in support of their motion that the testimony of Brown would be that over the telephone he informed the sheriff a warrant had been issued in Whatcom county for Eberhart’s arrest; that he (Brown) told Murphy the warrant had been placed in *172the hands of the sheriff of Whatcom county, who was then on his way to Yakima county to arrest Eberhart and that he instructed Murphy to hold Eberhart. This testimony would have shown an authority for, and a legal ratification of, the act of Murphy in detaining Eberhart. It would have taken the burden of Murphy’s act from him and placed the responsibility upon Brown. Murphy was deprived of this testimony which would have corroborated his own. Murphy, being an interested witness, the jury could consider that fact and were left free to give whatever credence to this testimony they saw fit. Had the truth of Murphy’s testimony been established or admitted, Brown’s testimony to the same point would have been merely cumulative. As it was, it • became corroborative and the defendant should have been given time to procure it. As pointed out in People v. Barberi, 149 N. Y. 256, 43 N. E. 635, 52 Am. St. 717:
“So long as the facts testified to by the party are not conclusively established, or admitted, they are still open to further proof.”
See, also, Page v. Krekey, 137 N. Y. 307, 33 N. E. 311, 33 Am. St. 731, 21 L. R. A. 409.
The majority opinion bases its argument of lack of diligence on the part of appellants in securing the testimony of Brown before trial upon the fact that the fact of his being engaged in service in Italy was given considerable publicity in Whatcom county and Seattle newspapers. It does not seem to me that appellants can be charged with knowledge or notice of what was contained in the newspapers of those distant localities. No notice or knowledge of Brown’s departure is brought home to them. Murphy could not be charged with lack of diligence because he failed to procure the testimony of this witness before trial. He *173had no reason to believe that the prosecutor would not be available, and even if it could be said that he should have known and did know of Brown’s absence, the difficulty of procuring the deposition of a person engaged in the military service and under the conditions which prevailed at the time would certainly free him from any contention of lack of diligence.
(3) Upon the general liability of the sheriff and his surety, as stated in Riggs v. German, 81 Wash. 128, 142 Pac. 479:
“The defendant [sheriff] is protected by a presumption that he has in all things performed his official duties, not the least of which is the exercise of reasonable and ordinary care to protect a prisoner while in custody. . . . ‘Kangaroo courts’ have come to be established institutions, and are encouraged by sheriffs and jailers. Their rules . . . indicate that their work is in aid of the work of a sheriff, whose duty it is to maintain a fit and suitable place to confine his prisoners and to protect the ones inclined to cleanliness and decency from those who are not.”
The Riggs case has not been expressly overruled by the majority opinion in the present case, and the above remains the law in this state. The majority seek to distinguish the present case from the Riggs case in that in the latter there was within the range of proof no other instance of personal violence, while here the sheriff admitted there was a prior case of brutal treatment during his term of office. I am unable to perceive how the fact of bad treatment by another set of prisoners more than a year previous can put the sheriff on notice of liability of similar acts on the part of an altogether different set. Here the sheriff had expressly disapproved the “kangaroo court” rule apparently providing for corporal punishment and the rules stood substantially the same as those involved in the Riggs case.
*174As indicated in the Riggs case, the kangaroo courts are recognized as of beneficial use in the discipline and sanitation of the prisoners in the jails and prisons, and are the practical system which has grown up and become general throughout the country, and courts should bear that in mind when deciding questions of this nature. The majority opinion in this case, it seems to me, is a departure from the holding in the Riggs case and would necessitate that the sheriff should place a separate guard over each individual prisoner in order to insure his welfare and safety. No such tenderness to prisoners confined in jails is contemplated by the law.
“In Riggs v. German, supra, it is also declared that a sheriff cannot be charged with negligence in failing to prevent what he could not reasonably anticipate, ánd that a sheriff should not be required, in the exercise of ordinary care, to maintain himself or deputy in the presence and company of his prisoners unless the circumstances as developed by the testimony are such that it can be said that the sheriff had reasonable ground to apprehend the danger. So in the case at bar: The question of whether the sheriff or his deputy was negligent in his manner of keeping the prisoners together in one common room in the jail depends upon a number of circumstances, among which was the question of what was safest* and most humane for the prisoners; what was most conducive to their health, well-being and safety; the character of the prisoners themselves, and their conduct; and possibly a number of other circumstances.” Kusah v. McCorkle, 100 Wash. 318, 323, 170 Pac. 1023, L. R. A. 1918C 1158.
For the reasons above indicated I dissent.
Mackintosh, J., concurs with Holcomb, O. J.