
    PAYMENTS — CRIMINAL LAW.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Haynes, Parker and Hull, JJ.
    Fred B. Brusoe v. The Retreat and Toledo.
    1. Money Deposited in Lieu of Bail in Unlawful Arrest, not a Voluntary . Payment.
    Money, voluntarily deposited by a person lawfully arrested, in lieu of bail for appearance and forfeited for nonappearance, cannot, be recovered, but this rule does not apply when the arrest is unlawful. Hence, where persons are arrested for the violation of a city ordinance without a warrant, and it does not appear that they were discovered by the officer in the commission of the crime charged or that the circumstances were such as to authorize an arrest without a warrant, a deposit of money by such persons in lieu of bail is not a voluntary payment of money and may be recovered from the city, or a charitable institution to which it ijas been paid by the. city.
    2. Forfeited Moneys Paid by City to Charitable Association Held in Trust.
    A charitable association to which all fines and forfeitures arising from certain offenses are paid over by a city’s courts under a statute, as for instance Sec. 781-30 Rev. Stat., receives such moneys as gratuities and acquires no better title thereto than the city which holds the funds in trust for the parties paying in the money, and is bound upon demand of the person entitled thereto to deliver them up.
    Peter Emslie and A. C. Bowersox, for plaintiff in error.
    M. R. Brailey, city solicitor, for defendants in error.
   PARKER, J.

This action was brought by Brusoe in the court below against The Retreat and the city of Toledo, to recover back $160 which he had deposited in lieu of bail, in the police court of the city, and which money had been forfeited and. withheld from him. It appears that on August C, 1900, Mr. Brusoe and his wife, and some other women who were said to have been living at a place kept by himself and wife, were arrested by a police officer and taken to the police station on a charge of keeping a house of prostitution; that is to say, Brusoe and his wife were arrested on that charge and the others were arrested on the charge of being in.mates. They were arrested without affidavits having been previously filed charging them with these offenses and without warrants having been issued and put into the hands of the officers for their arrest.

It is charged in the petition in the case that these moneys were wrongfully and unlawfully exacted from Brusoe and such money unlawfully detained and delivered to The Retreat, an institution established in the city of Toledo for a home for friendless girls, which, under a certain statute of the state of Ohio, is authorized to receive all funds or forfeitures arising from the prosecution of houses of ill fame or prostitution. It is not charged in the petition that the arrest was made without warrant, but the evidence in the case tends to show that that was true. Upon trial of the case in the court of common pleas, a verdict was returned by the jury in favor of both defendants — both Toledo and The Retreat. On motion of plaintiff, that verdict was set aside as to The Retreat, but it was allowed to stand as to the city. Error was not prosecuted to that ordef or to the judgment founded upon it in favor of the city, 'and the petition in error in this case was not filed within four months from the date of that judgment, so that the case against the city came to an end. Subsequently the case was retried as against The Retreat, and after the evidence was in on behalf of the plaintiff, a motion was made to rule the evidence from the jury and to enter judgment in favor’of The Retreat. It does not appear from the bill of exceptions that this motion was acted upon, and witnesses were then called on behalf of the city, who gave some testimony, and thereupon the motion was renewed and the court ruled in favor of The Retreat and directed the jury to return a verdict in favor of The Retreat, which was done. A motion for a new trial being made and overruled, judgment was entered, and now error is prosecuted here by Brusoe.

The testimony in the case tends to show that Brusoe and his wife were arrested without a warrant having been legally issued, no proper affidavit having been filed; it tends to show that the arrest occurred about 11:30 p. m. of August 6, 1900. Mr. Brusoe testified that he was in custody not to exceed about twenty minutes; that then the bail was fixed by some officer, in his case at $100, and in his wife’s case at $100; they having previously searched him and taken from him about $117, or, as other witnesses say, $122; that he de'sired them to retain $100 of his money as the. bail in his case, and as he was not able at the time to furnish bail in his wife’s case, the $100 was retained and the excess was returned to him. Upon the next day, the bail in his wife’s case having been reduced to $50, he produced $50 and paid it over in lieu of entering into a bond, and thereupon his wife was released. The records Introduced in the case tend to "show, from their dates, that the affidavits charging these offenses upon Brusoe and his wife, were made out and signed upon the following day, to wit, upon August 9, and that the warrant was issued upon August 9. The cases were continued by the police court for a few days to a time set for trial, and neither Mr. Brusoe nor his wife appearing to answer to the charges, the bail was declared forfeited. The evidence tends to show that this money was paid over to The Retreat in pursuance of the provisions of the statute which I have mentioned.

Now it is insisted on behalf of The Retreat, that the evidence shows clearly that this money was voluntarily paid into the hands of the city officers in lieu of bail, and, that, therefore, it cannot be recovered back, and that therefore the direction of the court to the jury was right. And the testimony does tend to show, and perhaps it would not be out of place to say that, as it stands it does show, that Mr. Brusoe was not unwilling, under the circumstances, to deposit this money to obtain the freedom of himself and his wife; indeed that he was quite willing to do so. He did not tender a bail bond; there is nothing tending to show that he tendered such a bond and that it was declined and that the money was exacted in lieu thereof, but it tends to show that it was at the suggestion of Mr. Brusoe that the cash was taken in lieu of a bond.

Now that such an exaction of cash is illegal and that it may not be retained by the city, is decided in the case of Reinhard v. Columbus, 49 Ohio St. 257 [31 N. E. Rep. 35]. It is also decided in the case of Columbus v. Dunnick, 41 Ohio St. 602, that where one is arrested and at his own request makes a deposit of cash in lieu of bail, such deposit of cash, being voluntary, it may be retained and cannot be recovered back. It appears, however, in that case that the arrest was lawful, that is to say, legal. In the case at bar, however, and in the case of Reinhard v. Columbus, supra (as held in the case), the arrests not being upon affidavit and warrant, were prima facie unlawful; and’ it is therein held that where an arrest is unlawful it cannot be said that if cash or a bond is exacted, that the cash is voluntarily paid or the bond voluntarily given. The case of Reinhard v. Columbus, supra, seems to us to answer every legal question submitted to us in this case, and I read from the syllabus:

“It is illegal, unless authorized by statute, for a police officer or magistrate, to receive money in lieu of bail for the appearance of a person accused of a criminal offense.
“A police officer arrested a person for an alleged misdemeanor under a state law, before any charge had been preferred against him or warrant had been issued for his apprehension; and demanded from him, while under arrest, a deposit of money in lieu of bail for his appearance before the mayor, which deposit was made by the person arrested, to avoid imprisonment. The money was paid into the city treasury, and afterwards the city, by its promissory note, paid the same to the county; but while the money was in the hands of the city, the party who was arrested demanded of the city that it pay over the same to him, which the city refused to do. In an'action against the city by the party arrested, to recover the money, in which the legality of his, arrest became a material issue, it was incumbent on the defendant, to show, that such a. state of facts existed as justified the officer- in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.
“Unless established by satisfactory evidence that the circumstances were such as to authorize the officer to make the arrest without the previous issue of a¡ warrant, the payment of the money by the party arrested as a substitute for bail for his appearance, and to avoid imprisonment, is to be deemed an involuntary payment, and the sum so paid may be recovered by him in an action against the city, as money by it had and received for the use of the plaintiff.”

The matter is fully discussed by Dickman, Judge, and in the course of his opinion a number of authorities are cited in support of the decision and of what is set forth in the syllabus.

In the case at bar there was no evidence submitted tending to prove that the defendants in the police court (Brusoe and his wife) were in the commission of the crime charged, or were discovered by the ■officer in the commission of the crime charged, at the time he made the arrest without a warrant. Therefore, there being in the case at bar no testimony tending to show that there had been a legal arrest and it appearing prima facie to have been an illegal arrest, the exaction of the money, under such circumstances, cannot be said to have been a voluntary payment or delivery of the money. Precisely what the court below had in view, precisely what defect it found in the plaintiff’s case, we are not advised.

It is argued that even though the plaintiff had a cause of action against the city of Toledo, he has none against The Retreat; that the money cannot be followed, into the hands of this institution. Now it appears - that the money was not received by The Retreat in the ordinary course of business, as that phrase is used in law — it was not received for. a consideration. The Retreat was the beneficiary'; The Retreat received the money as a gift, a gratuity, and the court holding in this case of Reinhard v. Columbus, supra, that, in a case of this kind the money can be recovered back as money had and received to the use of the. person paying it, the city became substantially a trustee for the parties paying in the money, and was bound to hold the money for them, and one receiving these funds from the trustee without consideration, acquires no better title thereto than the trustee had, and is bound upon demand of the person entitled to the fund, to deliver it up, and, therefore in our opinion, a prima facie case was made out against The Retreat, and the action of the court in taking the case from the jury was wrong and erroneous, and for that reason the judgment of the court below will be reversed and the cause remanded for a new trial.

It may be that upon the first trial there was so'me testimony that convinced the jury that the arrest was legal and that therefore the city was exonerated. Unless that were true, we cannot understand why the city should have prevailed.  