
    Commonwealth vs. Timothy Coughlin.
    Suffolk.
    Nov. 26.
    Dec. 31, 1877.
    Colt & Lord, JJ., absent.
    Tha St. of 1876, c. 17, authorizing the arrest of intoxicated persons without a warrant, covers the case of a person found in a public place in a state of intoxication, whether the intoxication was or not produced by means which render the intoxicated person guilty of the crime of drunkenness under the Gen. Sts. c. 165, § 25.
    A person who is arrested on a charge of drunkenness by an officer in the discharge of his duty without a warrant, under the St. of 1876, c.117, and who commits an assault upon the officer while under arrest, may be convicted of such assault, although he has been acquitted of the charge of drunkenness in the lower court; such acquittal not being conclusive evidence that he was not drunk when arrested, nor that the officer was not in the discharge of his duty in making the arrest.
    Indictment for assault upon an officer while in the discharge of his duty.
    At the trial in the Superior Court, before Dewey, J., it appeared that the defendant had been arrested under the St. of 1876, e. 17, by Emery A. Dresser, a police officer of the city of Boston, without a warrant, on a charge of drunkenness; that he was tried for this offence before a court of competent jurisdiction, and was found not guilty and discharged; and that while under arrest on the charge of drunkenness, and when about to be locked up by the officer, he committed the assault complained of.
    The defendant requested the judge to instruct the jury that the officer, having arrested the defendant without a warrant, on the charge of drunkenness, of which the defendant was found not guilty after due hearing and trial, was a trespasser, and guilty of an illegal arrest; that said trespass and illegal arrest continued, and that he could not therefore be considered as an officer in the discharge of his duty when assaulted. There was evidence tending to show that the defendant was drunk when arrested, and this was not denied by the defendant in his testimony on the stand.
    The judge declined to rule as requested; but instructed the jury that the officer had a right to arrest for drunkenness without a warrant; that the discharge of the defendant in the lower court was not conclusive that he was not drunk; and that the jury might on this evidence convict the defendant of an -assault, as charged in the indictment, on an officer in the discharge oí his duty.
    The jury returned a verdict of guilty; and the defendant alleged exceptions to the ruling and refusal to rule as requested.
    
      W W. Doherty, for the defendant.
    
      W. C. Loring, Assistant Attorney General, (0. It. Train, At - tomey General, with him,) for the Commonwealth.
   Soule, J.

The crime of drunkenness as set forth in the Gen. Sts. o. 165, § 25, is “ drunkenness by the voluntary use of intoxicating liquor.” It is possible, therefore, that one may be drunk without being guilty of the offence described. Arrested in a public place, kept in custody till sober, and then brought before a court of justice, he may be able to show that the intoxication, which he admits existed, was produced by some other cause or means than the voluntary use of intoxicating liquor. If he does this, he is entitled to acquittal and discharge.

The right of an officer to arrest without a warrant reaches, by the St. of 1876, c. 17, the case of any person found in a public place in a state of intoxication, and does not depend on the intoxication having been produced by means which render the intoxicated person guilty of the crime of drunkenness. The mere fact therefore, that one arrested, by an officer without a warrant, for drunkenness, was acquitted at the trial of the complaint, is not conclusive evidence that he was .not drunk when arrested, nor that the officer was not in the discharge of his duty in making the arrest and keeping him in custody afterward, as a preliminary to making complaint against him. The in structions asked for by the defendant were therefore properly refused; and there is nothing in the exceptions to show that the instructions given were not warranted by the evidence in the case. Exceptions overruhcL  