Opinion
(December Term, 1837.)
A constable cannot, under a warrant, nor by virtue of his office, make an arrest out of his own county, although under a reasonable belief that a felony has been committed, and that the person arrested was the felon.
THIS was an action of TRESPASS VI ET ARMIS for false imprisonment, tried at Guilford, on the last Circuit, before his Honor Judge SAUNDERS. Pleas, not guilty, and a special justification under process. It appeared upon the trial, that the store-house of one Jedediah Smith, in the county of Guilford, had been broken open, and money and other articles of value taken therefrom: that Smith had gone before a magistrate, and upon oath charged the plaintiff and one Conrad Sheppard, his father-in-law, with the offence: that the defendant was present and heard the oath of Smith: that a warrant against the plaintiff and his father-in-law was delivered to the defendant, who was a constable in the county of Guilford: that the defendant went with his warrant to the house of Sheppard, with whom the plaintiff was then living: that Sheppard was at home, and was arrested, but the plaintiff not being there, the defendant went in pursuit of him, and found him in the county of Orange, engaged in his ordinary business, and there arrested him: that the plaintiff, on being told the charge against him, expressed his willingness to go, but the defendant said he felt it his duty to confine him; and did in fact tie his arms behind his back, and carried him thus confined before the magistrate in Guilford county, where he was united and put under guard. For the plaintiff it was contended, that whatever authority the warrant might give the defendant to arrest in the county of Guilford, it gave none to arrest in the county of Orange; and that at all events the plaintiff was entitled to recover damages for the excess of authority in tying him when there was no necessity for so doing: and the plaintiff's counsel moved the judge so to charge the jury. But his Honor charged them that a constable had the right to arrest on reasonable grounds for believing that a felony had been committed; and that it was his duty to arrest, when informed of that fact: that "if the jury were satisfied of the felony, and that the defendant, a constable, was present, and heard the oath of Smith charging the plaintiff, it was such information as justified him in arresting the plaintiff, with or without a warrant." That as to the excess complained of in the defendant's having tied the plaintiff, that question did not arise under the pleadings, as the plaintiff had replied generally to the defendant's plea of justification. There was a verdict and judgment for the defendant; and the plaintiff appealed.
J. T. Morehead, for the plaintiff.
W. A. Graham, for the defendant.
— The plaintiff prayed the judge to charge the jury, that whatever authority the state's warrant might give the constable, the defendant, to arrest in the county of Guilford, he had no authority to arrest in the county of Orange. The Court did not charge as prayed, but told the jury, that a constable has the right to arrest on reasonable grounds for believing that a felony had been committed, and that the person arrested was the felon, either with or without a warrant. The judge's charge is certainly law, as far as it goes. If a constable or other officer has reasonable grounds for believing that a party charged was guilty of felony, though he turn out to be innocent, and although no felony whatever has been committed, the officer is justified in arresting. Davis v. Russell, 15 Eng. Com. Law Rep. 463. Fox v. Gaunt, 3 Barn. Adol. 798. Beckwith v. Philley, 6 Barn. Cress. 635. But the charge was not co-extensive with, nor in answer to the prayer of the plaintiff. So far as the charge went, the plaintiff had admitted in the preliminary part of his prayer, if the act were done in Guilford; but that to which he wished a categorical answer, viz., was the defendant, as constable, armed with the warrant, authorized to arrest out of his own county? This part of the prayer was not answered by the judge. Or, if it can be collected from the case to be answered, it was the opinion of the judge, that the defendant, being a constable of Guilford, might, either by virtue of his warrant, or ex officio, arrest in Orange. The law is, that an officer must proceed to arrest at some place actually in his own county; 1 H. Black. Rep. 15 n; 1 Lord Ray Rep. 736; for if the arrest should be made in fact out of the proper county, an action of trespass for the imprisonment might be sustained. 3 Chitty's Gen. Prac. 354. The legislature has authorized constables to arrest on bays, rivers or creeks, adjoining their counties, and return the precepts to a justice of their own county. (1 Rev. Stat. c. 24, sec. 9.)
The defendant's counsel in this Court now contends, that a felony had actually been committed by some one in breaking Smith's store-house, and stealing money therefrom: that the defendant had reasonable grounds to believe it was the plaintiff, as he was present when Smith made his affidavit and charged the plaintiff with the felony; and that he was justified in arresting him anywhere, in his character of a private citizen; and as he did arrest the plaintiff in Orange, under a reasonable belief that he was the felon, he had a right to carry him before a magistrate of the neighbouring county of Guilford, to be examined — the evidence being there. The answer we make to this argument is, that admitting a private person may arrest, where a felony has in fact been committed, on reasonable grounds of belief, that the person arrested is the felon, (1 Chitty's Gen. Prac. 620, 15 Eng. Com. Law Rep. 463,) still that did not seem to be the question decided by the judge, or the point controverted in the Superior Court. The case seemed to rest on the question, whether the defendant, being a Guilford constable, had a right to arrest the plaintiff in Orange, either by force of the warrant, or by virtue of his office, under a reasonable belief that a felony had been committed, and that the plaintiff was the felon. Upon that point (as we understand the case, which is badly made up,) we are of opinion the judge was mistaken as to the law. We therefore think it is but right, that the case should be again submitted to a jury. It will be understood that we give no opinion whether the defendant has made out, or can make out, a valid justification for the trespass imputed to him in his character of a citizen. There must be a new trial.
PER CURIAM. Judgment reversed.