Prigg v. Lansburgh , 5 App. D.C. 30 ( 1894 )

Mr. Justice Sjuepabd

delivered the opinion of the Court:

1. The first question to be considered is whether the court erred in excluding so much of the record entry in the complaint book at Police Headquarters as showed that the appellees were entered as complainants therein. The statute provides that these books shall be kept, and that therein “ shall be entered every complaint preferred upon personal knowledge of the circumstances thereof, with the name and residence of the complainant.” It. S. D. C., Sec. 386. The entry as to the charge of petty larceny is stated in the history of the case given above, and need not be repeated. In connection therewith another entry was offered, under date of November 7, 1891, as follows:

“ Embezzlement — Money. Raff. — Lansburgh & Bro., 420 to 426 7th St., N. W., reports that Wm. Prigg did embezzle from said firm at different days from Oct. 23d to Nov. 2nd, 1891, $27.13.”

This was followed by another entry or memorandum showing that Raff arrested Prigg on a charge of petty larceny which was “ nol. prossed,” and embezzlement substituted. The officer who produced the book was examined by plaintiff, and testified that he made the entry of the charges; that Raff brought in the prisoner and dictated the entries; that witness had no personal knowledge, and all the entries were based upon statements made by Raff to him at the time. The statute does not, in express terms, authorize the admission of the record as proof of the facts contained in it; but it must be conceded that public records do not always require this special authorization, where relevant. Evanston v. Gunn, 99 U. S. 660, 666; 1 Gr. Ev., Sec. 483.

As the record amounts to a mere memorandum, often made upon hearsay, as this one was, it may well be doubted if it is admissible at all under the rule laid down in the authorities above cited, save as an admission of the person or authority by whom it is actually made. But we need not determine this ; for, granting its admissibility and its effect to make a prima facie case even, its effect is clearly destroyed as to those whose names are entered thereon in their absence, whenever or however that fact may be made to appear. Where the entry of the name of a complainant or private prosecutor is made in this book upon the statement of a third person, when he is not present and is not shown to have confirmed or ratified it, it is no more admissible against him than other hearsay evidence would ordinarily be. Had the record been offered and admitted even as prima facie evidence, the court must necessarily have instructed the jury to disregard it, in so far as it concerned the defendants then before the court, upon its being made to appear that the entry had been made upon the report of a third person, in their absence.

It appears from the bill of exceptions that the proof referred to above, showing the circumstances under which the entry was made, was offered before the record and as introductory thereof. As it showed the absence of the defendants, and no offer was made to connect them with it in any other way, the court did not err in excluding the recitals referring to them.

2. A point has been made in this case by the appellant, and supported with an argument displaying much learning and research, respecting the power of an officer or a private person to make an arrest, without warrant, for the offenses of petit larceny and embezzlement. The contention is that neither offense is a felony at common law, nor has been made one by any law in force in the District of Columbia.

The officer who made the arrest is no longer in the case, and under the view that we have taken of the facts presented on the record with regard to the other defendants, the decision of this question is not necessary. We may add, too, that the same question is under consideration in another case, in which Mr. Justice Morris is disqualified to sit because formerly of counsel therein, and for this reason, as the point does not necessarily arise, we have not considered it.

3. The court did not err in directing the return of a verdict for the defendants upon the evidence submitted by the plaintiff. This evidence is stated with sufficient fullness in the preliminary statement and need not be repeated. Without intending to intimate an opinion as regards the guilt or innocence of the appellant of the offense charged against him, or to decide that there was probable cause for his prosecution, we hold that there is not sufficient evidence in the record to warrant a finding that the appellees actually arrested the appellant or commanded or requested the officer, Raff, to do it. It is true that the facts were reported to Police Headquarters, and Raff came to investigate them. He heard the statements, examined the accused and made the arrest. There is no evidence to show that he did so at the request or under the persuasion of appellees, or any one of them, and the reasonable inference from all the evidence is that he made the arrest in the exercise of the discretion conferred upon him, according to the evidence of the chief of police.

Mere information to the officers of the law by a citizen, tending to show that an offense has been committed and that some person named may be suspected of its commision, is not sufficient, of itself, to warrant the inference that the informer or his agents participated in the unlawful arrest and imprisonment of the accused by the officer.

The circumstances under which a court is justified in directing a verdict are well settled. “ When the undisputed evidence is so conclusive that the court would be' compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury and direct a verdict.”' Elliott v. Chicago, etc., Rwy. Co., 150 U. S. 245, 247; Howes v. Dist. of Columbia, 2 App. D. C. 188.

There being no error in the proceedings below, the judgment must be affirmed, with costs to the appellees; and it is so ordered.