O'Connor v. Bucklin , 59 N.H. 589 ( 1879 )

The instructions of the court to the jury concerning the alleged abuse of the defendant's authority in searching the plaintiff, and taking from him his money, were correct. Closson v. Morrison, 47 N.H. 482; Fogg v. Worster,49 N.H. 503.

"Any officer, upon view of any crime or breach of the peace or offence against the police of towns, may arrest the offender, and forthwith carry him before the proper court or justice to answer for the offence." G. L., c. 254, s. 3. By the construction established by long and uniform understanding and practice, this statute authorizes an arrest by any officer on view of any criminal offence for which the offender is liable to arrest on a warrant. And, by the construction established in the same manner, the statute reenacts the common-law rule of this state, which authorizes an arrest by an officer, without a warrant, in good faith, for a proper purpose, and on reasonable grounds. On some subjects of this nature, by long usage and common consent, in this state, some of the rules of the common law of England have been modified, and reasonably conformed to the public safety and welfare. Waldren v. Berry, 51 N.H. 136. The view spoken of in the statute is such a view as shows legal cause for an arrest, and reasonable ground to believe the plaintiff guilty of a criminal offence was legal cause for the defendant's obtaining a warrant against him, or arresting him without a warrant.

A maniac, not responsible for his violence, who knocks down a man in the street without provocation or warning, commits no criminal offence. In no legal sense does he violate the criminal law; but a policeman who arrests him on view of that act, without a warrant, is not a trespasser, even if he is aware of the assailant's innocence. Any one not an officer could make the arrest for the protection of the community. Every member of the community has a right to do what is reasonably necessary for the protection of himself and others against apparent danger. Two men in close proximity are aiming firearms at each other. A policeman coming suddenly upon them in that attitude strikes down their weapons, and arrests them both without a warrant, not knowing that one of them is innocent, because he is acting in self-defence. The officer is not a trespasser. He would be unfit to perform the duties of his office if he did not act energetically and instantaneously upon the ocular evidence of apparent danger. He cannot be allowed to wait till the apparently mutual assault has ended in the death of the parties, for the purpose of instituting a judicial inquiry into the real merits of the case. The safety of society requires him to act upon the apparent state of things, and to act with alacrity. The statute was not intended to disable the police, and deprive the community of its rightful protection, by deterring officers from the performance of their apparent duty. It means, not that an officer commits a trespass by arresting an innocent but dangerous insane person, or an innocent person apparently guilty, but that the officer's view may, like other sources of information, furnish reasonable ground to believe an arrest ought to be made.

No question is raised about the defendant's duty to carry the plaintiff before a magistrate. Crowley v. Hurd, 58 N.H. 75.

It does not appear from the case upon what grounds the plaintiff objected to the brief statement. If they were that the substance of the city ordinance was not sufficiently disclosed by mere designation of its chapter and section, the defect may be cured by amendment, after verdict, by evidence addressed to the court. Roulo v. Valcour, 58 N.H. 347, and cases cited.

The objection to the competency of certain jurors cannot be sustained. They may have been taxed with other citizens on account of the city solicitor's salary, but such taxation was not a voluntary act on the part of the jurors, like the personal employment of counsel. It was a burden of taxation imposed involuntarily because of their residence. The Manchester jurors had no disqualifying interest in the cause, and there is no suggestion that they were affected by any feeling or prejudice. If they were disqualified, all payers of state and county taxes would be disqualified as jurors in criminal cases, and in all civil cases in which the state or, county is a party.

When the brief statement is amended, and the ordinance proved at the trial term, there will be judgment on the verdict.

Case discharged.

STANLEY, J., did not sit: the others concurred.