(dissenting) — There may be a conflict in the testimony as to whether the respondents were actually violating the law. The majority opinion says that this “was wholly a question for the jury to determine.” Under the authority cited in the majority opinion, the question of whether or not respondents were actually violating the law is immaterial, if, in fact, their conduct was such that would lead a reasonably prudent officer to believe that they were violating the law.
“Reasonable and probable cause for belief in the guilt of the person detained is essential to legal justification of arrest by an officer for a public offense without a warrant or by a private person, and completes a defense within the restrictions imposed by law.” 19 Cyc. 351.
The testimony of respondent set forth in the majority opinion clearly shows that there was a reasonable and probable cause for belief on the part of the deputy sheriff that the respondents were violating the law. Before the actual arrest, the respondent and his brother attempted to destroy, and did destroy, the evidence of their guilt by breaking the bottles upon the street- instead of delivering them over to the deputy sheriff upon his request. They told the deputy to search them after they disposed of the contents of the bottles. These facts were sufficient to create in the mind of a reasonably prudent person a belief that they were guilty of the violation of the law. The fact that they now claim that the bottles contained near beer, which is not intoxicating, is immaterial. There would be no *387motive in destroying the bottles if that were a fact. Their conduct in breaking the bottles cannot be explained in any other way than that they contained intoxicating liquor. At least this would be the natural conclusion that a reasonably prudent person would reach.
The admitted facts being sufficient to justify the belief that respondent and his brother were violating the law, we must hold that the arrest was lawful.
There is another reason for holding the arrest legal. Respondents in their testimony admitted that they broke the glass bottles upon the street in the presence of appellant McNamara, the arresting officer. This was a violation of § 2720, Rem. Comp. Stat. [P. C. § 5992], making it a misdemeanor to throw any bottle, glass or glassware upon a road, street, alley or highway, and the officer had authority to make the arrest.
Instead of telling the jury that the defendant could not justify the arrest, the court should have told the jury that the arrest was legal.
The only question to be submitted to the jury is whether or not there was greater force used in making the arrest than a reasonably prudent officer would have used under the facts and circumstances.