
    Leger et al. v. Warren.
    
      Person arrested without a warrant — Cannot "be detained longer than necessary to obtain warrant — Right of action for false imprisonment, when — No defense by arresting officer that he acted under orders of superior.
    
    1. A person, who has been arrested without a warrant cannot lawfully be held in custody for any longer period than is reasonably necessary to obtain a legal warrant for his detention. Where he is held for a longer period without such writ or other authority from a competent court, he has a right of action for false imprisonment against the officer or person who made the arrest and those by whom he has been so unlawfully held in custody.
    2. In such an action it is not a defense for the officer who made the arrest that he acted under orders from a superior officer. By the failure to procure the necessary warrant or authority for the prisoner’s detention, the imprisonment becomes unlawful from the beginning, and all concerned in it are equally liable.
    (Decided April 24, 1900.)
    Error to the circuit court of Franklin county.
    Action for damages for wrongful arrest and imprisonment. Judgment for- plaintiff, affirmed by tlie circuit court. Affirmed.
    The defendant in error, David H. Warren, brought his action in the court of common pleas of Franklin county, on the 2nd day of February, 1897, against Michael Leger and three other police officers of the city of Columbus, and the sureties on their official bonds, to recover damages for his unlawful arrest and imprisonment by those officers, in January,, 1897.
    The petition alleges “that defendants, Michael Leger, Jacob Miller and Andrew Frank did, on or about the 19th day of January, 1897, near the hour of midnight of said day, at the home of plaintiff, in the city of Columbus, Ohio, unlawfully, maliciously and without any reasonable or probable cause, arrest plaintiff, and with force and violence, and against the will of plaintiff, unlawfully place plaintiff in a patrol wagon and carried him to the city prison, where plaintiff was, 'by the defendant Patrick Kelly, chief of police of said city, forcibly, unlawfully, maliciously and against the will of plaintiff, placed in a cell in said prison and confined therein from said midnightofsaidl9th day of January, 1897, to noon of the 25th day of January, 1897; that at the time of his said arrest and imprisonment, and many times thereafter, he demanded of said defendants, Leger, Miller, Frank and Kelly, that they inform him what crime he was charged with having committed for which he was so arrested and imprisoned, which information said defendants refused to give plaintiff; that many times while so imprisoned plaintiff demanded of the defendant Kelly that written charges be filed against him, and that he have a hearing in the police court of said city on said charges, so to be filed, all of which said defendant Kelly refused to do, and that many times during said false imprisonment plaintiff demanded of said defendant Kelly that he be allowed to have the assistance of an attorney-at-law to advise plaintiff as to his rights and to secure his release from said illegal imprisonment, which the said defendant Kelly refused to do. Plaintiff further avers that he was by said defendant Kelly unlawfully confined as aforesaid in a cell, the floor of which was, for a period of two days of said confinement, covered with water. On account of said dampness and the unhealthy condition of said cell, plaintiff became violently ill. While he was thus ill, defendant Kelly refused to allow plaintiff the attendance of a physician, although requested so to do by plaintiff. On the 21st day of January, 1897, plaintiff was taken from said cell by defendant Kelly, handcuffed to one of the common prisoners of said prison, and compelled to march with a number of felons along the public streets of said city, in full view of a large concourse of people, to the photograph gallery of -, at No. 276% South High street, in said city, where he was, by said defendant Kelly, compelled to undergo the shame, humiliation and disgrace of being photographed as a common felon. Said photograph was so taken by defendant Kelly for the purpose of placing the same in the rogues’ gallery, and has, by said Kelly, been exposed to view of a large number of persons whose names plaintiff does not know, and therefore cannot allege the same. Plaintiff was taken by said defendant Kelly from his cell many times and paraded before a large number of citizens of said city whose names he does not know, and consequently is unable to plead them. Plaintiff further alleges that by reaof said false arrest and imprisonment he has been to great loss and expense, in this to-wit: Plaintiff is a paperhanger and decorator by trade, and his services per day in that business are reasonably worth $3.50. The time lost while so imprisoned was reasonably worth the sum of $17.50. He was put to the expense of $25.00 in securing the services of an attorney-at-law. By reason of said false arrest and imprisonment, plaintiff lost a job of work, the reasonable profits of which were worth the sum of $40.00. By reason of the wrongs and grievances committed herein by said defendants, Michael Leger, Jacob Miller, Andrew Prank and Patrick Kelly, his business has been damaged and he has suffered great mental anguish, great humiliation, shame and disgrace and much physical suffering. By reason of the premises plaintiff has been damaged in the sum of $5000.00.”
    The remaining allegations of the petition relate to the execution of the offical bonds of the police officers, with their respective sureties, who are made defendants, the condition of each bond requiring that the officer “shall pay any and. all damages that may be adjudged against him by any tribunal, for the illegal arrest, imprisonment or injury by him of any person while he shall hold said office.”
    No objection appears to have been made to the joinder of the sureties, in the action, at any stage of the case.
    The answer, which was filed by Patrick Kelly “for him and codefendants, admits that the defendants, Michael Leger, Jacob Miller, Andrew Prank and Patrick Kelly are police officers of the said city of Columbus, Ohio, as described in plaintiff’s petition, and that Louis Seidensticker, Joseph Kolb, Joseph B. McDonald, Cyrus Huling, James Ross, Henry A. Reinhard, Dennis Kelly and John E. Drugan are the bondsmen of said patrolmen; defendants deny each and every other allegation in plaintiff’s petition contained.” And it avers: “That on the 12th of January, 1897, at the city of Columbus and county of Franklin, Ohio, one Joseph McVey and other persons, whose full names are unknown to this defendant, into a certain storehouse of one Charles Mistereck, there situate, did unlawfully, maliciously and forcibly break into with intent then and there, and thereby the personal property of said Charles Mistereck in said storehouse then and there being, unlawfully to steal, take, and carry away, and eighty pairs of shoes of the value of one hundred and sixty dollars ($160.00) of the personal property of the said Charles Mistereck in said storehouse then and there being found, then and there unlawfully • did steal, take and carry away. The defendants, Patrick Kelly, Michael Leger, Jacob Miller and Andrew Frank, on or about the 19th day of January, 1897, had good reason to believe and did believe that the plaintiff above named unlawfully and fraudulently did receive the personal property above described, belonging to said Charles Mistereck, then lately before stolen, he, the said plaintiff, then and there well knowing said property to have been stolen as aforesaid; and thereupon the said officers, Patrick Kelly, Michael Leger, Jacob Miller and Andrew Frank, having good ground and reasonable cause to believe that said David H. Warren was guilty of receiving and concealing stolen property, knowing it to have been stolen, which crime as above described is a felony in the state of Ohio, punishable by imprisonment in the Ohio state penitentiary, did cause and procure the arrest of said David H. Warren and imprison him in a cell in the city prison. The defendants deny that they in any way used violence towards the plaintiff, and deny that the arrest and imprisonment was without cause. ’ ’
    The new matter in the answer was controverted by reply, and the cause proceeded to trial to a jury. The plaintiff obtained a verdict for $1,000.00, on which judgment was rendered; and that judgment having been affirmed by the circuit court, error is prosecuted here to obtain the reversal of both courts.The only question deemed of sufficient importance to call for a report of the case arises upon the charge of the court, which, with such facts as may be relevant,will be more particularly noticed in the opinion.
    
      G. D. Barters and David B. Sharp, for plaintiffs in error.
    In the light of the evidence we believe that the learned judge erred in this charge to the jury. Under it the jury was compelled to hold the arresting officers liable for the wrongful act of the chief of police. Hawley v. Butler, 54 Barb., 490; Dilcher v. Rapp, 73 Ill., 266.
    Cases decided by courts of inferior jurisdiction of course have no binding effect upon this one, but see Raitz v. Green, 13 O. C. C., 455; 7 Circ. Dec., 238.
    
      Kinkead, Menoine cG Rhoads, for defendant in error.
    The rule laid down in the Six Carpenter’s Case, 4 Coke, 146, that if a man abuse an authority given him by the law becomes a trespasser ab initio, has never been questioned.
    In the case of Tubbs v. Turkey, 3 Cush., 438, the precise question presented here was presented to the court, and it was held that the rule laid down in the Sis Carpenter’s Case applied to cases in which the arrest was legal, but the subsequent detention was illegal and unreasonable. Brock v. Stimson, 108 Mass., 520; Pastor v. Regan, 30 N. Y. Sup., 657; Harris v. R. R. C., 35 Fed. Rep., 116; Cochran v. Toher, 14 Minn., 385; S. S. Co. v. Williams, 69 Ga., 252; 46 Ga., 80; State v. Freeman, 86 N. C., 683; Dillon Mun. Corp., sec. 211; 
      Brock v. Stimson, 11 Am. Rep., 390 (108 Mass., 520) ; Judson v. Reardon, 16 Minn., 431; Phillips v. Fadden, 125 Mass., 198; State v. Parker, 75 N. C., 249; 11 Gray, 373; Sands v. Graves, 48 N. Y., 653; 77 Md., 263; Linnen v. Banfield, Sup. Ct. (Mich..), 1897, Vol. 72, N. W. Rep., 1.
   Williams, J.

The following are the material parts of the court’s charge, of which the plaintiffs in error complain:

“It was the duty of the defendants, whether they caused the.arrest and imprisonment, or made the arrest and imprisonment, to carry the plaintiff without unreasonable delay before a magistrate of lawful competency for that purpose, to accuse him there according to the forms of law, and obtain the necessary magisterial sanction for any further detention of him. The defendants, making the defense here (I mean all the defendants except the sureties), did not comply with the command of the law, which required them to take him before a magistrate and obtain a warrant for his arrest. They have not shown any lawful reason for omitting to do this. He was detained in prison an unreasonable time without the filing of an affidavit and the procuring of a warrant. Their failure to comply with this law, made them trespassers from the beginning of the arrest. The permission which the law gave them to arrest and imprison him originally because there was reasonable cause for it, without first procuring a warrant, filing an affidavit and procuring a warrant, was given to them on the condition that they would not detain him longer than was reasonably necessary to enable an affidavit to be filed and a warrant to be procured. Not having complied with that condition, the fact that he was arrested in the first instance for reasonable cause is not even a colorable defense. Three of these defendants were subordinate officers of the superintendent of police. They did what they did pursuant to orders given by one who had a right to command, presumably. That may, as it ought to, make you feel that they ought not, in a moral sense, be held responsible in damages. But the orders of a superior, or of one who had a right to command them, is not a legal reason for their omission to comply with the law which required them, in a reasonable time, to file an affidavit and procure a warrant. The court having this conception of the law applicable to the case, there is nothing for you to do but to assess the damages.”

It was shown on the trial, that the plaintiff was arrested by the defendant officers without warrant, as alleged in the petition, and was imprisoned after such arrest for a period of more than five days, without any warrant for his detention, and without any charge having been made against him before any competent tribunal, or opportunity allowed him for a trial; that during his imprisonment he frequently demanded to be informed of the nature of the charge on which he was detained, and to be taken before a proper court for a hearing thereon; and that, at the end of the period named, when he was discharged from prison, no complaint had been filed against him, nor trial allowed him. These facts were not disputed. The evidence of the defence was directed entirely to the establishment of good cause for the arrest, and to the subject of damages. There was no impropriety, therefore, in the court treating as undisputed, the facts above stated and no complaint is urged here on that account. The objection made, is to that part of the charge by which the jury were instructed, in substance, that though the defendants making the arrest or causing it to be made, had good cause therefor, that did not justify the imprisonment of the plaintiff thereunder for a longer period than was reasonably necessary to enable the defendants to obtain a warrant, or authority from some competent tribunal, for his further detention; and, that his continued imprisonment without such warrant or authority, rendered them liable as wrongdoers from the beginning, leaving only the question of damages for the consideration of the jury. In this charge we think there was no error. It is provided by Section 7130, of the Revised Statutes, that:. “When a felony has been committed, any person may, without a warrant arrest another who he believes, and has reasonable cause to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained.” And Section 7143, contains the provision that: “If it becomes necessary, for any just cause, to adjourn the examination of the accused, the magistrate may order such adjournment, and commit the accused, from time to time, for safe keeping, to the jail of the county, until the cause of the delay is removed, and no longer; but the whole time of such confinement in jail shall not exceed four days; or, the officer having in custody any such person may, by the written order of the magistrate, detain him in custody in some secure and convenient place, other than the jail, to be designated by the magistrate in his order, not exceeding four days.”

The right to make arrests without warrant, is conferred by the statute in order to prevent the escape of criminals where that is likely to result from delay in procuring a writ for their apprehension; and it was not the purpose to dispense with the necessity of obtaining such writ as soon as the situation will reasonably permit. To af ford protection to the officer or person making the arrest, the authority must be strictly pursued; and no unreasonable delay in procuring a proper warrant for the prisoner’s detention can be excused or tolerated. Any other rule would leave the power open to great abuse and oppression. The detention of the plaintiff in prison for a period of five days, and more, without any writ, or order of any court, and in disregard of his repeated demands to be given a hearing, was without excuse or palliation. None was offered. It was a palpable and arbitrary abuse of official powar Not having pursued their authority to arrest without warrant, by failing to obtain within a reasonable time, a Avrit or order for the plaintiff’s detention, the defendants placed themselves in the same situation as if they had originally acted without authority. It is a familiar rule that one Avho abuses an authority given him by law becomes a trespasser ab initio. That rule has often been applied in cases like the present one. In Brook v. Stimson, 108 Mass., 520, it was held that: “An officer who arrests an offender without warrant, by authority of a statute which authorizes such arrest only as preliminary to taking him before a court, is liable for assault and false imprisonment if he omits to take him before the court.” Numerous authorities for the similar application of the rule are collected in the opinion of the court in that case, and many others might be cited, some of which are referred to in the brief of the defendant in error. The arresting officer, in such case, cannot justify the holding of the prisoner without warrant, on the ground that time is necessary to investigate the case, and procure evidence against him. Section 7143, of the Revised Statutes, already quoted, provides for cases where such delay becomes necessary, by authorizing the magistrate before whom the accused is taken to adjourn the examination from time to time, and commit the accused until the cause of the delay is removed. But that section forbids the imprisonment for any period exceeding four days.

In behalf of the plaintiffs in error, Leger, Miller, and Frank, it is contended that, as they were subordinate officers acting under orders from the chief of the police force in arresting the defendant in error and delivering him into the custody of the patrolmen, who conveyed him to the city prison in obedience to the chiefs orders, they should not be held responsible for' his subsequent imprisonment, nor for the omission to obtain the necessary warrant and bring him to trial. But the delivery of the plaintiff after his arrest, into the custody of another person, to be by him taken to prison, could not, we think, absolve the arresting officers from the duty required of them to obtain the writ necessary to legalize his further imprisonment. If it could, the imprisonment might with impunity be prolonged indefinitely by the change of custodians and places of confinement, at short intervals. The arrest having been made without warrant, it was necessary, in order to preserve the legality of that action, that the proper steps should be taken to prevent the further detention of the prisoner from becoming unlawful; for, as we have seen, unless those steps be taken, all legal protection for such arrest ceases, and the arresting officers become wrongdoers from the beginning, liable as such, equally with those by whom the unlawful imprisonment is continued. If the arresting officers choose to rely on some other person to perform that required duty, they take upon themselves the risk of its being performed, and unless it is done in proper time, their liability to the person imprisoned, is in ho wise lessened or affected. There was no order of a superior officer in this case that did or could prevent the defendants who made the arrest from complying with the requirement of the law in the respect indicated, nor excuse their omission to comply therewith.

Judgment affirmed.  