Mitchell v. The State.

On an indictment for false imprisonment, the person aiding an officer must show that the arrest was made tinder a legal and valid warrant; as to the proof of such warant, seo Floyd v. The Slate, ante.

A person acting as guard of one in custody on a criminal charge, or aiding an officer in the safe-keeping of a prisoner, is entitled to the same protection as the officer, and no more. When called upon by the officer, ho aids him at his peril; he is bound to know whether the officer acts under a legal and valid warrant.

Appeal from the Ouachita Circuit Court.

Nelson Mitchell, with others, was indicted, in the Ouachita Circuit Court, for false imprisonment, and tried before Hon. Josiah Gould, then one of the Circuit Judges, in October, 1849.

The indictment charged that Isaac Franklin, Nelson Mitchell, Henry Nelson, "William H. Moffitt, Andrew J. Floyd and James, M. Floyd, on the 20th day of October, A. D. 1848, with force and arms, at, &c., in and upon one Charles Cook, in the peace, &c., did make an assault, and him, the said Charles Cook, did then and there, beat, wound and ill-treat, &c., and him, the said Charles Cook, then and there unlawfully and inj uriously, against the will, and without the consent of him, the said Charles Cook, and also against the laws of the State, without any legal warrant, authority or justifiable cause whatsoever, did imprison, confine and detain, for a long time, to-wit: for the space of three days, then next following, and other wrongs, &c., to the damage, áte., against peace,” áte.

Defendant (Nelson Mitchell) severed, was tried on the plea of not guilty, convicted, and fined one hundred dollars. He moved for a new trial, on the grounds that the verdict was contrary to the evidence, the law, and the instructions of the court. The court overruled the motion, and Mitchell excepted.

The bill of exceptions states, that, on the trial, it was proven that, on the 28th October, 1848, in the county of Ouachita, Chas. Cook was arrested by Isaac Franklin, aided by others, and taken before John Hanna, a justice of the peace for Franklin township. The arrest was made in said township, under a process of some kind from said Justice, ordering Cook’s body to be taken. This was stated by one of the witnesses for the State, but the process itself was not produced on the trial by either party.

One of the witnesses stated that he thought defendant Mitchell was “knowing to the arrest,” but did not state his reasons for thinking so. Mitchell was not present at the arrest, nor while Cook was being conveyed to the Justice. He was sent for by one of the parties on whose complaint the arrest was made, after Cook was taken before the Justice, and came there soon after Cook reached the Justice’s house, riding very fast, and with his collar “flared open”; and soon after he reached there, and before any warrant of commitment was made out, took authority over Cook. Witnesses were examined, and considerable writing done by the Justice, occupying the time until late at night. During this investigation, Cook said he wanted the attendance of some purticular witnesses in his favor, and the Justice was willing to wait for them; but other persons (and among them Mitchell) said he was not entitled to have them sent for, and it was not done. Mitchell talked a good deal while the investigation was going on. After the writing was over, the Justice (Hanna) made out a warrant of commitment, as follows :


County or Ouachita. )

The State of Arkansas to the Sheriff of Ouachita: Greeting:

Whereas, Charles Cook is committed to the jail of said county of Arkansas to remain in custody until he gives security for his appearance at the next term of the Circuit Court, held in and for the county of Ouachita. Whereas, I, John Ilanna, an acting-justice of the peace for the county of Ouachita, Franklin T., find, from the affidavit of James M. Floyd and A. J. Floyd, and the testimony before me, Charles Cook guilty of removing the corn off the premises of A. J. Floyd and James M. Floyd, and after being forbid according to law. October the 20th day, A. D. 1848.


There being no constable in the Township, Isaac Franklin was specially authorized to execute the above warrant.

The house of the justice was thirty-five or forty miles from Camden, the county seat of Ouachita county.

After the warrant was made out. Franklin summoned the defendant Mitchell to go with him to Camden as a guard, in place of one of the ¡persons who aided in making the original arrest, and whose place Mitchell had taken after he arrived at the house of the Justice, and had acted as guard during the investigation in his place, previous to the making out of the warrant of commitment. Franklin, Mitchell, and two or three others set out that night for Camden, with Cook in their custody. One of the party had a gun and Mitchell had pistols. They went a short distance and stopped for the night, Cook requested to be allowed to go homo and see his family, but Franklin refused to let him go, and Franklin and others of the guard stayed and guarded him with light burning until morning.

In the morning, Franklin went with him to his house and they proceeded to Camden. On the way, the defendant (Mitchell) in the words of Cook himself, in testimony, ordered and hectored him about fifty times a day as if he was a dog, and if he had been a dog, could not have treated him worse; but the witness, though urged to do so, specified but one instance, which was when he stopped at a house to get water, and was waiting for it to be bi’ought from the spring, Mitchell called to him and said: “God damn it, Cook, come along,” and told him the branch was not far off. Mitchell never touched him at all, nor touched his horse.

On reaching Camden, Cook was taken to a tavern, and there remained until the morning of Sunday, the third day after his arrest.

The sheriff refused to receive him, holding the warrant insufficient. Cook was allowed to go and consult counsel; and, on Sunday morning, demanded of Franklin and Mitchell to be released, and was told he was at liberty, and was discharged. He made no opposition to going to Camden, but went against his will and without his consent, as one in legal custody. Franklin never mistreated him at all, but treated him very kindly, but Mitchell took four times as much command as any body else.

The above, was all the evidence introduced, as set out in the bill of exceptions. The charge of the court to the jury does not appear of record.

Pike & Cummins, for the appellant.

After arguing that the warrant of commitment was legal, contended that a ministerial officer is protected in the execution of process, provided that on its face it appears that the court has jurisdiction of the subject matter, and nothing appears to apprise the officer that the court had not jurisdiction of the person of the party to be affected by the process. Savacool v Borcgnton, 5 Wend. 170. Sandford v Nicholas, 13 Mass. 288. 1 Ch. Gr. Law 39. McGuinty v Herrick, 5 Wend. 240, 243. Wilcox v Smith, id. 231. Reynolds v Moore, 9 id. 35. 7 id. 89. 12 id. 496, 499. Earl v Camp, 16 id. 562. Churchill v Churchill, 12 Verm. 661. Taylor v Alexander, 6 Hamm. 144. Beaty v Perkins, 6 Wend. 382.

If the officer is justified by the process, so is every person who comes in aid of him. Elder v Morrison, 10 Wend. 158. Oy-stcad v Shed, 12 Mass. 572. Lunard v Stacy, 6 Mod. 140.

If the process is regular on its face and apparently within the jurisdiction of the court or officer who issued it, it is a complete justification to the officer who executed it. Fulton v Heaton, 1 Barb. Sup. C. C. R. 555. Abbott v Yost, 2 Denio 86.

The officer, to whom process is delivered, is bound to examine it before he executes it: not so the person whom he calls to his aid in its execution; and the doctrine, as laid down in Elder v Morrison, that those persons are protected only when the officer is, and obey his call at their peril, offends against the loftiest rules of public policy and natural justice. The highest duty devolving on a citizen, under the obligations which ho owes to his country and the laws, is to aid in the enforcement of those laws, to risk his life, if need be, in aiding to bring offenders to justice and defending the officers and agents of the law when assailed and endangered in the discharge of their duty. * * *

And it should be settled and declared, 'as the law of Arkansas, that when a known public officer calls on the citizens for aid or protection, his official character shall be sufficient warrant to authorize and imperatively require that citizen to obey — and that if the officer has really no legal warrant or no warrant whatever, that shall not concern or affect the citizen, but. the officer alone shall suffer the consequences of his abuso of power and want of authority.

Qlendeotn, Atl'y Gen'l., contra.

Mr. Ch. Justice Joiinsos

delivered the opinion of the Court.

If any responsibility has attached to the appellant for his participation in the offence charged jointly against himself and others, it must have arisen from a defect of authority to authorize the original arrest. This being the case, it is, by no means, material whether the warrant of commitment was legal and valid or not. The appellant was not present when the arrest was made, but he was sent for and came in as one of the aids or guards after Cook was taken before the justice, and during the investigation, and consequently before Cook was committed.

This being the state of case, the enquiry necessarily results as to his authority to do the act complained of, anterior to the period of commitment. It is true that the testimony does not expressly show that he was ordered by the constable to act as.a guard over Cook; yet, inasmuch as he had been sent for, and actually took the place of one of the original guards, it is fair to presume that he acted under the authority of the constable, and if so, of course he is entitled, at least, to the same protection. The language of the witness in respect to the character of the authority under which the original arrest was made, is precisely the same as that used in the case of Andrew J. Floyd against the State, decided at the present term; and, consequently, the legal effect must be the same in both cases. It is there laid down that the fact of confinement having been shown by the State, it devolved upon the defendant to make out his j ustification, and that having attempted to justify under a warrant, he must show one valid and legal upon its face. It was there held, under a similar state of fact to the one here developed, that one who procured the pretended warrant to bo issued, had not shown a legal justification since it did not even appear that the one relied upon ran in the name of the State of Arkansas. All then that was said there, in respect to the defect of authority, will apply with equal force here, unless there be a distinction between the situation of an informer, who is first instrumental in putting the law in motion and one who comes in subsequently and aids in its execution. It is contended by the counsel for the appellant, that the law will not hold a party coming in to the aid of an officer to the same strictness of authority as is required of the officer himself. In support of this position, he has submitted a most plausible and forcible argument, in which he has depicted the ruinous consequences which, under peculiar circumstances, the law would visit upon honest and innocent individuals. We are free to admit that the argument is ingenious and plausible, yet we think it will be found that the current of authority is clearly against it. In the case of Elder v Morrison, 10 Wend. 128 the Supreme Court of New York, by Savage, Ch. J., said: “It is certainly true that if the officer be guilty of a trespass, those who act by his command or in his aid, must be trespassers also, unless they are to be excused in consequence of the provision of the Revised Statutes. If a stranger comes in aid of an officer in doing a lawful act, as executing legal process, but the officer, by reason of some subsequent improper act, becomes a trespasser ab initio, the stranger does not thereby become a trespasser. Cro. Eliz. 181. Cro. Car. 446. But when the original act of the officer is unlawful, any stranger who aids him will be a trespasser, though he acts by the officer's command. Oystead v Shed, 12 Mass. R. 511. The case in Massachusetts just cited, was an action of trespass dc bonis asportatis against Shed and three others. Shed and Fletcher, justified as officers, under writs of attachments, the two other defendants justified as servants of Fletcher: the plaintiff replied and the defendants demurred to the replications. The court adjudged Fletcher’s plea bad, and the justification of the other two defendants failed of course; and their ignorance of the law, it was said, would not excuse their conduct or diminish, in any degree, the injury which the plaintiff sustained. The case of Lunard v Stacy, 6 Mod. 140, is to the same effect. That was an action of trespass for entering the plaintiff’s house and taking away his goods. The defendant justified that he came in aid of an officer in execution of a writ of replevin. The plaintiff replied that he claimed property in goods, and gave notice to the defendant before their removal. The court held the defendant was a trespasser ab initio, for though the claim should be made to the sheriff, yet if it be notified to him who comes in aid, that claim is made, he ought to desist at his peril; thereby establishing the proposition that if the officer is a trespasser, all those who act by his command, or in his aid, are trespassers. Whenever a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come in his aid; but if his authority is not sufficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlawfnl act; they are not bound to obey, neither by the common law nor the statute; and if they do not obey, it is at their peril. They are bound to obey when his acts are lawful, otherwise not. The only hardship in the case is, that they are bound to know the law. But that obligation is universal; ignorance is no excuse for any one. The counsel for the plaintiff in error insists that there is a difference between aiding in the original taking and in overcoming resistance. It seems to me there is no such distinction. If the taking was lawful, the resistance was unlawful; but if the taking was unlawful, the resistance

was lawful. If the resistance was lawful, neither the officer, nor those he commands to assist him, can lawfully overcome that resistance. Nor does the fact of the officer being indemnified confer on him any authority which he had not without such indemnity: he may thereby become compelled to do an illegal act in selling the property of strangers to the execution, but he is a trespasser in doing so, as are all others who aid him.” The case referred to was an action of assault and battery brought by Morrison against Elder in the court below. The defendant pleaded the general issue, and gave notice of special matter. On the trial, the following facts appeared: The plaintiff, on the premises of one Milburn, offered for sale, two horses at public auction, in pursuance of a previous notice. Woodward, a constable of Walkill, having in his hands a justice’s execution against Milburn, was present, and, forbade the sale, claiming the horses under the execution and demanding possession of them, which the plaintiff refused to yield. Woodward demanded assistance from the by-standers; no one obeying him, he called upon the defendant, by name, to assist him in obtaining possession of the horses, and threatened him with legal proceedings if he did not obey. Woodward succeeded in obtaining possession of one of the horses, and then he (the plaintiff) and defendant went into the stable where the other horse was, upon which a struggle ensued as to who should have the possession of that horse, in the course of which the defendant jerked the plainliff about, who had hold of the halter, which was upon the horse, elbowed him and threw him down, which was the assault and battery complained of. The defendant, under the notice attached to his plea, proved the rendition of a judgment against Milburn, the issuing of an execution thereon, and a delivery of the writ to Woodward, and that by virtue thereof and of another execution subsequently received, Woodward, who was indemnified by the plaintiff in the execution, sold the horses. At the time of the levy, Woodward inquired of Milburn where his horses were, who pointed out the horses in question. The plaintiff offered to prove that he was the owner of the horses at the time of the taking by Woodward, which evidence was' objected to by the defendant, but the objection was overruled and the evidence received; to which decision the defendant excepted. The jury found a verdict for plaintiff with $25 damages, on which judgment was rendered. The defendant then sued out a writ of error, and the judgment was affirmed in the Supreme Court. The principle there established is, that a party who is called to aid an officer in the execution of civil process, does so at his peril, and that in case he shall invade the rights of strangers, he will be liable as a trespasser. That is a much stronger case than the one at bar, for he is not only bound to know that his principal is acting under lawful authority, but he is also bound to see that such authority is not abused by an invasion of the rights of strangers to the process under which he acts. It is conceded that the phraseology of the statute of New York is somewhat different from that of our own, yet we believe that they are substantially the same, and that consequently they should receive the same construction. The statute of that State bearing upon the subject under consideration is, “that when a sheriff or other public officer shall find resistance, or have reason to apprehend it in the execution of any process delivered to him, he may command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resistance, and in seizing and confining the resisters,” and that “every person commanded by an officer to assist him, who shall refuse, without lawful cause, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment.” The language of our statute is that “In all cases whereby the common law or any statute of this State, any officer is authorized to execute any process, he may call to his aid all free white male inhabitants over the age of twenty-one years, of the county ilr which such officer is authorized to act,” and “If any person shall refuse or neglect to obey the summons of any such officer, the person so neglecting or refusing, shall be fined in any sum not less than ten nor more than one hundred dollars, to be recovered by indictment.” In the one case, therefore, the party summoned is bound to obey unless he shall have lawful cause to refuse; and, in the other, he is only required to yield obedience in such cases as the officer is authorized to act, either by the common or statute law. If he is only bound to obey in such cases as the officer is authorized to act, we think it clearly follows that the law will not protect him where the officer has no authority. It certainly would not be contended that an officer of the State 'with a process in his hands against one individual, would be authorized to execute it upon another, neither would he be authorized to seize in execution the property of a stranger to satisfy the debt of the plaintiff in the writ.

It is assumed by the appellant’s counsel, that the parly called upon by an officer is bound to obey, and that having no option whether he will do so or not, he must, of necessity, be protected against any evil consequences which may result from his acts! If the premises were true in point of fact, it might be difficult to resist the conclusion drawn from them. But such is not the case. The law, as laid down in the case just referred to, is that “He has no power to command others to do an unlawful act; they are not bound to obey, neither by the common law nor the statute, and if they do obey, it is at their peril. They are bound to obey when his commands are lawful, otherwise not. The only hardship is, “that they are bound to know the law.” It will be seen, therefore, that a party is not bound, right or wrong, and whether the officer is authorized to do the act or not, to render obedience to his command. It is most clearly his right to refuse in case the officer has no legal authority to do the act, and it is equally clear that he has no such right in case the officer has such authority. He must, therefore, act or decline to act at his peril. If it be a hardship for a person, called by an officer to assist him, to decide at his peril, it is quite as hard that the rights of innocent individuals should be invaded with impunity. The law does not intend that the assistance required shall, in all cases, be rendered blindly and without reflection; for if so, it might be the means of inducing the most flagrant outrages and covering with the mantle of impunity acts of violence precon-certed between an irresponsible officer and other malicious individuals.

If persons are only bound to aid an officer in such cases as he himself would be authorized to act, it is clear that the defendant in this case call'd aim no protection from the law, as nothing has been shown which could by possibility have given protection to the officer.

We are, therefore, fully satisfied, from every view which we have been able to take of this case, that the judgment of the Circuit Court is right, and consequently ought to be affirmed. It is, therefore, considered and adjudged that the judgment of the Circuit Court of Ouachita county, herein rendered, be, and the same is hereby, affirmed.