Carpenter v. Mills , 29 How. Pr. 473 ( 1864 )

By the court, Scrugham, J.

The principal question presented on this appeal is whether the defendants Switzer and Powers, being members of the police force of the metropolitan police district, were .legally authorized to arrest and detain the plaintiff without warrant, upon a charge of petit larceny being preferred against him by a private citizen. The defendant Powers, being examined as a witness in his own behalf, said, that “ a burglary had been committed there, and a complaint made,” and when the plaintiff was first brought before the magistrate, after his arrest and before his examination or trial, “ something was said about a door being broken open or a hasp drawn.” Upon this, the defendants Switzer and Powers, insist that the evidence indicates that they were informed of a burglary. On the other hand, the evidence of Mills, who gave the information, shows that the only charge he made against the plaintiff was of petit larceny, and we must assume that the jury so found!

The members of the police force of the metropolitan police district, possess in criminal cases all the common law and statutory powers of constables. It is well settled that while a constable has power to arrest without warrant, on the charge of a third person in cases of felony', he has no such power in cases of misdemeanor, after the misdemeanor has been committed. (1 Russell on Crimes, 598, 600, and cases there cited ; Taylor agt. Strong, Sfc. 3 Wend. 384.) This is a common law rule, and must be applied in accordance with the definitions of felony and misdemeanor at common law, except where the statute clearly and specifically alters the grade of the offences. The rule was founded upon the difference in the enormity of the offences, and upon the conviction that greater expedition might be necessary to secure arrests in cases of felony than in cases of misdemeanor. The reason for allowing arrests without warrant, will not apply to an offence reduced by statute from the grade of felony to that of misdemeanor; and the reason failing, the rule falls with it.

Our statutes have not changed the grade of petitlarceny, which is a felony at common law. It is true that it is not one of the statute felonies defined in section 30, title 7, chapter 1, part 4, of the Revised Statutes, but there is no enactment which takes from it its common law character. The defendants, therefore, might legally arrest for petit larceny without warrant, upon the oral charge of a third person, provided they had reasonable ground to suspect that the petit larceny had been committed, and that the plaintiff was the guilty person. There was no conflict of evidence as to the fact that Mills made the charge against the plaintiff to the defendants, nor as to any of its important features; and as it afforded to them reasonable ground to suspect that the offence had been committed, and by the plaintiff, the motion for a dismissal of the complaint should have been granted.

The judgment against the defendants Switzer and Powers, should be reversed and a new trial granted, costs to abide the event.