Mildon v. Bybee

HENRIOD, Justice

(concurring in result).

I concur in the result, but do not subscribe to the main opinion’s attempted differentiation between this case and Wendelboe v. Jacobson. Where misdemeanors are the subject matter, whether the arrest is made at night or in the daytime is of no consequence. Nor does the fact that good faith, reasonable diligence and care in identification are exercised by the arresting officer have anything to do with whether the arrest is unlawful, except by way of mitigation of damages, which may be nominal or great,— a jury question. He risks an unlawful arrest where a misdemeanor is not committed or attempted in his presence.¹ Even where armed with a warrant he takes his chances at arresting the wrong person.² These conclusions seem inescapable in the light of the clear implications of our statutes, which govern the matter. The situation is different where felonies are the subject matter. The statute protects where reason and care are exercised.³

1 . Title 77-13-3, Utah Code Annotated 1953; Title 77-12, U.C.A.1953.

2 . 22 Am.Jur. 405, sec. 73, False Imprisonment.

3 . Title 77-13-3(3) and 77-13-3(5) U.C.A.1953.