People v. Shanley — 4 N.Y. Crim. 472

Majority

p. 472

May, 1886.

PEOPLE v. SHANLEY.

Headnote

Arrest by Police Officer—When Warrant Must be in his Actual Possession.

Where an arrest may only be made by a peace officer with a warrant, the warrant must be in the actual possession of said officer, so that it may be shown to the defendant at the time of making the arrest.

It is not enough in such a case that a warrant has been issued, and is at the the time of the arrest in the possession of the chief of police at headquarters, the arrest being made by one of his subordinates upon the street.

Appeal from a conviction and judgment of the Court of Sessions of Eensselaer county convicting defendant, John Shanley, of an assault in the second degree.

The indictment was found November 14, 1885, and defendant pleaded not guilty and was tried November 15, 1885, before Hon. J. S. E. L’Amoreaux and a jury, was found guilty and sentenced to confinment in the State prison for three years and six months.

The facts appear in the opinion.

Merritt & Ryan, for appellant

I. It was the duty of the people to show that the officer had authority by virtue of a warrant in his hands at the time of the attempted arrest; they

p. 473

could not show it in the hands of some other party. Galliard v. Laxton, 9 Cox C. C. 127; Codd v. Cabe, 18 Moak's Eng. Rep. 353.

TT. It was the intent of our legislative body when they passed section 177 of the Code of Criminal Procedure, allowing a peace officer to arrest a person without a warrant for a crime committed or attempted in his presence, or for a felony, although not in his presence, to confer no greater power than ~ was intended by article 1, section 1 of the Constitution of this State, which says. “That no member of .this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof unless by the law of the' land or the judgment of his peers.”

III. The charge on which the attempted arrest- was made was disorderly conduct, a simple misdemeanor, and not committed in the presence of the officer and occurring some months prior to the attempted arrest. He could not, therefore, without process, arrest the defendant unless the offense was committed in his presence. An ordinance providing that he shall have power to arrest disorderly persons must be construed as a power to arrest such offenders in the manner required by the general, common and statutory laws of the State, and not as giving additional powers to such officers not warranted by and not in harmony with such general law. People ex rel. Kingsley v. Pratt, 22 Hun, 300 ; Schneider v. McLane, 3 Keyes, 568; Butolph v. Blust, 41 How. 481 ; Boyleston v. Kerr, 2 Daly, 220 ; Sternack v. Brooks, 7 Id. 142; People v. Haley, 48 Mich. 495 ; State v. Crocker, 1 Houst. Crim. Cas. (Del.), 434. A peace officer cannot without a warrant arrest a person guilty of a past offense unless such offense amounts to a felony. Commonwealth v. Carey, 12 Cush. (Mass.), 246; Commonwealth v. McLaughlin, Id. 615 . And it was held in the case of Wahl v. Walton ( 30 Minn. 506 ) that an action for false imprisonment would lie where an officer made an arrest five hours after the offense of disorderly conduct had been committed.

IY. It was an error in the court to refuse to instruct the jury that it was the duty of the officer at the time he made the

p. 474

arrest to disclose to the defendant his authority and under what process he arrested him. The evidence given by the officer is that he told the defendant that he wanted him and to come with him, and the defendant refused and attempted to get away. In order to constitute the offense of resisting an officer it must be shown that there was process and that the process was legal. People v. Muldoon, 2 Park. 13; ee, also, § 119, Penal Code.

V. The facts in this case do not differ in any particular from ■those reported in the case of Galliard v Laxton, 9 Cox C. C. 127; 2 Best & Smith, 363; 31 L. J., M. C., 123.

In order to justify an arrest, even by an officer, under a warrant for a misdemeanor, it is necessary that he should have the warrant with him at the time. Beg v. Chapman, 12 Cox, C. C. 4. When a warrant has been issued to apprehend a person for an offense less than felony, the police officer who executes it must have the warrant in his possession at the time of the arrest. Codd v. Cabe, 18 Moak's Eng. Rep. 353 ; 45 L. J. Exch. Div. 101; 13 Cox, C. C. 202, D. C. A.

La Motte W. Rhodes, district attorney, for the people, respondent.

I. The possession of the warrant by the chief of police of the village of Lansingburgh was constructively the .possession of each member of the force when on duty within the village.

The courts have given abundant proof of relaxing the rule held by some of the English decisions, in that, the officer is not nequired even on demand to show his warrant upon the arrest ■of the defendant Bellows v. Shannon, 2 Hill, 86 . A regular ■officer making an arrest in his own district is not bound to show his process, even if demanded. Arnold v. Steves, 10 Wend. 514 ; 1 Colby's Criminal Law, 72. Indeed,, the older English writers held that a man could be arrested for a misdemeanor without a warrant to bring him before a justice to give bail and for appearance. 1 East's Pleas of the Crown, 306; 2 Hale's Pleas; 90. Hawkins in his pleas of the Crown Book (2d ed. vol. 3, chap. 13, § 28), speaking- of serving warrants for misdemeanor, says: “ A bailiff or a constable, if they are com

p. 475

monly known to be officers and act within their own precincts, need not show their warrant to the party, notwithstanding he demand the sight of it. Bishop on Criminal Procedwre (vol 1, § 191), says: The doctrine thus stated by Hawkins continues to be the law to the present day and in the United States with the exception of the dictum of Lord Kenyon, mentioned in a note to one of the English cases above cited, which he ■quotes and questions sworn and lcnown-of officers acting within their precincts need not show their warrants. 2 Barb. Crim. Law, 2d ed. bottom paging, 1865. Wearing the accustomed badge of office is undoubtedly sufficient even in case of a fresh incumbent. Yates v. People, 32 N. Y., 509 ; 1 Bishop's Crim. Pro. sec. 192. In the case at bar the defendant knew the officer, knew that warrants were out for him, had seen the warrants, had talked with the officer about the warrants before this time, and without giving the officer time to say anything to him, ran away. He did not ask the officer what he wanted to .arrest him for, but took it for granted that the officer would arrest him on sight because he knew the warrants were issued and lodged against Mm.

The contention of the people in this case will not infringe the original principle or statute. It still preserves intact the principle that a warrant must be first issued before arrest for a misdemeanor; and that it must be in the possession of the officers of the law whose duty it is to execute it. How this duty is devolved, not upon a single constable responsible only to himself and the law governing him, as was formerly the case, but upon each and every member of the force charged by their chief with the arrest of the prisoner. Shall the court say that' because each and every member of the force cannot be provided with a warrant for all criminals having been charged with crimes of the grade of misdemeanor witMn their precincts, that only one person who must at the time of the arrest be actually possessed of the warrant can make the arrest? If that be made the law the efficiency of every police force would be thereby greatly impaired in each city and village of the State with reference to the largest number of offenders

p. 476

known to the law, and the number of criminals who would escape punishment would be greatly increased.

The defendant was indicted and convicted of assault in the second degree. The alleged crime was committed in resisting one Knapp, police officer of Lansingburgh, who' attempted to arrest him for a misdemeanor not committed in the officer’s presence. A warrant had been issued and was at the time in the office of the chief' of police. It was not in the possession of the officer who made the arrest, unless being in that office it was constructively in‘his possession. The defendant knew that Knapp was a police officer and had heard that the warrant had been issued. The charge of the court was that the warrant was in the constructive possession of the officer; and the court declined to charge that it was the duty of the officer at the time of the arrest to disclose to the defendant his authority and the process under which he arrested bim. Whether the. charge was correct in these two respects-is the question.

The Code of Criminal Procedure, section 168, provides that “ an arrest may be, First, by a pe.ace officer under a warrant; Second, by a peace officer without a warrant; Third, by a. private person.” Section 177 states the cases where a peace officer may arrest without a warrant. They do not include the present case. Section 183 states the cases when a private person may arrest. They do not include the present case. This arrest must then be one made by an officer under a warrant in order to be justifiable.

Section 173 provides that “the defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant if required.” This language would seem to be conclusive on the question before us. For, if the officer must show the warrant, if required, then it is-plain that it must be in his actual possession. It would be absurd to construe the section to mean that after making the arrest the officer must, if required, take the defendant to some other place (it may be a mile or so distant), and then show him the warrant. The section means that when the defendant is

p. 477

informed by the officer that he acts under the authority of the warrant, the defendant may require him to show it, and he must then show it. Constructive possession, for which the people argue, that is the existence of the warrant in the office of the chief of police, would lead to constructive showing of the warrant. “Constructive" is a dangerous word. If the Legislature had meant that the officer should constructively show his warrant, it would have been plainer to say he need not show it all Plainly then, when the Legislature speaks of arrest by a peace officer under a warrant, they understood that the warrant should be in the possession of the officer m such manner that it might be shown to the defendant at the time of making the arrest.

On common law principles aside from statute, this same doctrine is laid down in Codd v. Cabe (L. R,. 1 Ex. Div. 352), which is followed by Galliard v. Laxton (2 Best & Lmith, 363). 'The former of those cases was almost exactly like the present. A warrant had been issued against Oodd and placed in the hands of one constable. Another constable not being in possession of the warrant, arrested him. Oodd did not demand to see the warrant, resisted violently and greatly injured the officer. For this resistance and assault Oodd was convicted. The conviction was reversed by the three judges of the Court of Appeals, Bramwell, Mellor and Denman; and they ■stated that they had the concurrence of other judges, whom they had consulted. Their decision is directly in point, and shows the present view in England of the common law. The other case was similar. ,

If the remark in Arnold v. Steeves ( 10 Wend. 514 ) was correct, that an officer was not bonnd to show his warrant, which remark is followed (with a semblé) in Bellows v. Shannon ( 2 Hill, 86 ), certainly that rule is changed by section 173, above cited. So that argument derived from those cases is of no weight The same may be said of the remarks in 1 Bishop’s Criminal Procedure, sections 191, 192. The Code has declared that the officer must show his warrant if requested, and it follows inevitably that1 he must have it with him.

We do not understand the district attorney to claim that

p. 478

Knapp could have lawfully arrested the defendant if there had been no warrant. Only that it was sufficient that the warrant, should be in the office of the chief of police to justify any policeman of the place to make an arrest within the police limit. And he argues that great inconvenience will arise from a contrary rule; that if one policeman has the warrant a criminal may evade him and keep within the beat of another, and the like. There is much force in this. But, on the other hand, the innocent citizen has a right to protection. It is hardly safe to say that without a warrant a policeman may arrest a citizen for an alleged misdemeanor not committed within his sight. If Knapp was justified in arresting this defendant, then the innocent citizen must submit to arrest, without having the right to see the warrant before he yields to the alleged authority.

It has not been claimed that there is any special law giving peculiar authority to the policemen of Lansingburgh. We have, therefore, examined the question only on the general statute and on general principles.

We find no authority to justify the idea of constructive possession of a warrant. The idea is repudiated in the two English cases, and it is inconsistent with the Code, as above cited.

The judgment and conviction are reversed and the prisoner discharged.

Landon J., concurs.

Cases cited

Arnold v. Steeves & Frost 10 Wend. 514 N.Y. Sup. Ct. p. 474, p. 477