
    Ballard v. State.
    
      Arrest without warrant — Power of marshal of municipal corporation to make. — Revised Statutes, sections 1849, 7129.
    
      1. In determining the power of the marshal of a municipal corporation to ' arrest without warrant, section 1849 of the Itevised Statutes, which makes it the duty of that officer to arrest any person “ in the act of committing any offense,” etc., and section 7129 of same statutes, which makes it the duty of certain officers named, including such marshal, “to-arrest and detain any person found violating any law,” etc., should be construed together to determine the extent of such power.
    2. Under a proper construction of these sections, a marshal of a municipal corporation is authorized, without warrant, to arrest a person found on the public streets of the corporation carrying concealed weapons contrary to law, although he has no previous personal knowledge of the fact, if he acts dona fide, and upon such information as induces an honest belief that the person arrested is in the act of violating the law.
    ‘ Motion for lebve to file petition in error to the Court óf Common Pleas of G-reene county.
    A great number of errors are assigned, all of which have been passed upon by the court, but only one js reserved for report.
    The indictment was for murder in the first degree, in killing one John T. Yan Boren, marshal of the village of Wilmington, Clinton county, and on change of venue the accused was convicted and sentenced for manslaughter in Greene county.
    Van Doren, as marshal, was in the act of arresting Ballard for carrying concealed weapons, when he was shot by the latter.
    The marshal had no warrant. There was resistance by Ballard and a struggle, during which, by the discharge of Ballard’s pistol, Van Doren was killed. Whether the arrest without warrant was authorized, and under what circumstances one thus arrested may defend himself, were questions directly involved by the evidence.
    Upon these questions the court charged as follows :
    “In reference to the lawfulness or unlawfulness of the alleged arrest or attempt to arrest, I say to the jury that, by the laws of Ohio, the marshal of a village is bound to arrest any person in the act of committing any offense against the laws of the state, and forthwith bring such person before the mayor, or other competent authority, for examination or trial.
    “According to the literal reading of the statute, the lawfulness of the arrest depends upon one thing alone, namely, the fact that the person arrested is at the time of the arrest in the act of violating a law of the state; and it is claimed by the state that the belief, or the knowledge, or the suspicion of the officer making the arrest, as to the guilt or innocence of the party arrested, does not affect the question and is immaterial.
    “ The state admits that deceased had no warrant for the arrest of defendant, and no claim is made that defendant Was-committing or had committed a felony.
    “It is claimed by the state that, at the time of the alleged arrest, deceased was marshal of the village of Wilmington, in Clinton county, Ohio; that the defendant was going about the streets of said village with a pistol concealed upon or about his person; that he was carrying such pistol unlawfully, that is to say, he was engaged in no lawful business, calling, or employment, and the circumstances in which he was placed were not such as would justify a pru-dent man in carrying a pistol for the defense of his person, property or family, and that deceased, learning of this, attempted to disarm him first, and, failing in that, put him under arrest for carrying such weapon concealed upon or about his person, and having so put him under arrest, was proceeding to take him before the proper officer for such legal proceedings as might be warranted by law, when the homicide occurred.
    “If the jury are satisfied that these facts are proven, then the arrest was lawful, and the defendant ought quietly to have submitted to it.
    “ The point is made by defense that unless the officer has absolute knowledge that an offense is being committed against the laws of the state, he has no right to arrest without a warrant for a misdemeanor. This claim is not tenable. If the person arrested is, as a matter of fact, in the act of committing such offense, at the time of the arrest, and the officer has information or kno'wledge which induces him to reasonably believe, and at the time of the arrest he does believe that such offense is being committed, and the arrest is made on that account, this is sufficient.
    “ The charge in the Weymouth ease has been read as to this point, and referred to in your hearing, in which the judge told the jury, very correctly, that the officer must have personal knowledge of the offense and the offender.
    “This, as I say, was good law for that case, because in that-case the claim was not made as it is here, that, as a matter of fact, the defendant, at the time of the arrest, was committing any offense, nor was there any evidence, as I understand the case, to support such claim.
    “ The state there claimed that the accused had been violating an ordinance of the village of Cedarville, but the officer was not present during the commission of the unlawful act, and it was fully completed before the alleged arrest was made.
    “If the officer.has no. knowledge or information as to the commission of the- offense, I say to the jury •the arrest would be unlawful, even though the party arrested were at the very time of the arrest in the act of committing the offense for which he was arrested.
    “ The state claims that if an officer, at a venture, without any information, knowledge, or suspicion on the subject, arrests a man without a warrant for unlawfully carrying a pistol concealed on his 'person, and it turns out as a matter of fact that the party arrested is, at the time of the arrest, committing the offense for which he is arrested, the officer is protected, and the arrest is lawful. This claim, I say to the jury, can not be allowed. In such case, to make the arrest lawful, the officer should believe that the party arrested is guilty of the offense'for which the arrest is made, and the belief should be based upon such facts or such information, or both, as might reasonably induce such belief.”
    Counsel for defendant excepted to this charge on the ground that it did not correctly state the law of arrest without warrant, nor the right of the person arrested to defend himself in such a case.
    
      C. H. Blackburn and Smith § Savage, for the motion.
    
      James Lawrence, attorney-general, contra.
    
   Johnson, J.

By section 7129 Revised Statutes : “A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman or police officer, shall arrest and detain any ■person, found violating any law of this state, or any legal ordinance of a city or village until a legal warrant can be obtained.”

By section 1847, the marshal of municipal corporations is the chief ministerial officer of the corporation.

By section 1848, he is to execute all writs and process, etc.

By section 1849, he is to arrest all disorderly persons in the corporation; suppress all riots, disturbances and breaches of the peace; pursue and arrest any person fleeing from justice in any part of the state; arrest any person in the act of committing any offense against the laws of the state or ordinances of the corporation, and forthwith bring such person before the mayor or other competent authority for examination or trial. ■

These two sections (1849 and 7129) provide what a marshal of a municipal corporation may do as a conservator of the peace without a warrant.

Section 1849 is the same as section 142 of the municipal code of 1869 (66 Ohio L. 178), where the authority extends to the arrest of any person “in the act of committing an offense.”

Section 7129 is copied from 66 Ohio L. 291, section 21 of the code of criminal procedure, where the words are, “ any person round violating,” etc.

Section 1849 is the primary source of a marshal’s authority, and if there was any substantial difference in the words “ in the act of committing any offense ” and “ found violating any law,” as found in section 7129, the former would be adopted if necessary to protect the officer.

But we think there is no substantial difference. Under either, the citizen is protected from arrest without warrant to the same degree as under the other. Both greatly enlarge the power to arrest without warrant in cases of misdemeanors from what it was at common law, where a constable had original and inherent power to arrest for breach of the peace, or for felony actually committed, etc., or in the act of committing treason or felony, etc. 4 Black. Com. 292*; Hale P. C. 587; 1 Bishop, §§ 167, 168.

Section 1849 is, in legal effect, the common-law rule as to arrests by sheriffs and constables without warrant, made applicable to- other crimes than treason, felony, or breach of fhe peace.

[With respect to the charge given, there was evidence tending to show that the deceased was marshal of the village of Wilmington and known to Ballard to be such at the time of the attempted arrest and shooting; that Ballard was on the streets of the town, carrying concealed weapons contrary to law; that he discharged the pistol killing the marsbal while he was engaged in resisting the arrest. In making the arrest for carrying such weapons, the marshal acted on information and belief, and not from actual personal knowledge of the facts. This information, which proved to he true, was based upon such statements of fact, and from such sources as would warrant a prudent man in acting. Under these circumstances, we think the officer was in the performance of official duty. This does not authorize such an arrest without warrant on a mere venture, without knowledge or reliable information, though in fact, as afterward discovered, concealed weapons were found.

The accused was “ in the act of committing an offense,” within the purview of section 1849, and “ was found violating a law of the state,” within the terms of section 7129. The accused was committing a concealed crime, not one open to view, and hence the greater necessity of acting on knowledge or information. Good faith, an honest belief, based upon reliable information, which proves to be true, is all the law requires. "We need not inquire what is the law, if the information is false and the party is innocent, as that question is not before us. Even in such a case, where the official character of the officer, as well as the reason for the arrest, is known to the party arrested, it would be no defense to a charge of manslaughter if he purposely took the life of the officer to prevent his arrest. In such a case it would rather be his duty to yield obedience to the efforts of the officer, trusting to the law for his redress, when there is no apparent danger to life or of great bodily harm.

Upon a careful consideration of the charge of the court upon this point we think there is no error.

Motion overruled.

Okey, J., dissented.  