I concur in the foregoing opinion and especially with the conclusion that the record shows Conaway knew at the time of the arrest that no offense had been committed in the presence of the magistrate, Varnes. It seems to me the opinion leaves some implication that the arresting officer would be within the protection of section 755.6, Code, 1946, if no crime had been committed in the magistrate's presence but the officer who was orally ordered by the magistrate to make the arrest did not know this fact. Then, too, the opinion rather implies that the arresting officer would be within *Page 249 the protection of the statute if a public offense had been committed in the magistrate's presence and sometime later the magistrate orally ordered the officer to make the arrest. I do not feel that in either instance the officer would be making an authorized arrest under the statute. Section 755.6, Code of 1946, provides:
"A magistrate may orally order a peace officer or a private person to arrest anyone committing or attempting to commit a public offense in the presence of such magistrate, which order shall authorize the arrest."
Such a statute should be strictly construed. And in the arrest of a person without a warrant the burden of proof is on the person arresting to show that the arrest was lawful. 6 C.J.S. 579, 580, section 5. Since no order for the arrest of a person who had not committed an offense in the magistrate's presence would be lawful, the officer would not be within the protection of the statute.
But in any event, I feel that the statute, properly construed, would not authorize the officer to arrest a person upon the magistrate's oral order that an offense had been committed in the magistrate's presence. The statute does not say that the magistrate can orally order any peace officer or any person to arrest for a crime that has been committed in his presence. The statute says he can orally order the arrest of "anyone committingor attempting to commit a public offense in [his] presence." (Italics supplied.) I think the legislative intent is expressed in the use of the present tense. The legislative intent is to supplement the power of a magistrate to arrest anyone committing a public offense in his presence by granting to the magistrate the present right to call upon a peace officer or other person present to arrest for a public offense which is being committed or attempted in the magistrate's presence.
The very fact that the statute authorizes the magistrate to orally order "a private person" to make the arrest indicates a legislative intent to allow the magistrate to give the oral arresting order at the time the offense is being committed or attempted. Surely the legislature did not mean the magistrate could telephone *Page 250 some "private person," hours or days after a public offense had been committed in his presence, and tell that person to go out and arrest the offender. I do not believe the legislature meant to amend the general law of arrest by a private person, as found in section 755.5, by allowing a private person to make an arrest for a public offense that was not being committed in his presence.
I would hold the statute is in effect a deputizing statute; that it goes no further than to authorize the magistrate to call upon an officer or private person there present to arrest someone who is committing or attempting to commit a public offense in the magistrate's presence.
BLISS, SMITH, and HAYS, JJ., join in this special concurrence.