Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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was not made, as it is here, that, as a matter of fact, the de-
fendant at the time of the arrest was committing any offence ;
nor was there any evidence, as I understand the case, to sup-
port 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 com-
mission of the ofiFence, 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 offence^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 con-
cealed on his person, and it truns out, as matter of fact, that
the party arrested is, at the time of the arrest, committing the
offence for which he is arrested, the officer is protected, and
the arrest is lawful. This claim, I say to the jury, cannot be
allowed. In such case, to make the arrest lawful, the officer
should believe that the party arrested is guilty of the offence
for which the arrest is made, and the belief should be based
on such facts or such information, or both, as might reason-
ably induce such belief."

Counsel for defendant excepted to this charge on the ground
that it did not correctly state the law of arrest without war-
rant, 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 R. S., " a sheriff, deputy^heriff,
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 any city or village,

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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 processes, etc. By section 1849 he is to arrest all disorder-
ly 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 per-
son in the act of committing any offence against the laws of
the State or ordinances of the corporation, and forthwith
bring such person before the mayor or other competent au-
thority for examination or trial.

These two sections, 1849 ^"d 7129, provide what a marshal
of a municipal corporation may do as a conservator of the
peace without a warrant. Section 1849 ^^ th&same as section
142 of the Municipal Code of 1869,66 Ohio L. 173, where the
authority extends to the arrest of any person " in the act of
committing an offence," etc. Section 7129 is copied from 66
Ohio L. 291, section 21 of the Code of Criminal Procedure,
where the words are, " any person found violating," etc.

Section 1849 ^s the primary source of a marshal's authority,
and if there was any substantial difference in the words " in
the act of committing any offence** 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 in the
other. Both equally enlarge the power to arrest without
warrant, in cases of misdemeanors, from what it was at com-
mon law. There a constable had original and inherent power
to arrest for breach of the peace, or for felony actually com-
mitted, etc., or in the act of committing treason or felony,
etc. 4 Bl. Com. ^292 ; Hale, P. C, 587 ; i Bish. Crim. Proc.
167, 168. Section 1849 ^s, in legal effect, the adoption of the
common-law rule as to arrests by sheriffs and constables with-
out warrant, made applicable to other crimes than treason,
felony, or breach of the peace.

With respect to the charge g^ven, there was evidence tend-
ing to show that the deceased was marshal of the town 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

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law ; that he discharged the pistol, killing the marshal, 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 be 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
ARREST BY an arrest without warrant, on a mere venture, with-
ouT^iMAjS^" out knowledge or reliable information, though, in
fact, as afterwards discovered, concealed weapons were found.
The accused was " in the act of committing an offence" with-
in the purview of section 1849, ^^^ "was found violating a
law of the State" within the terms of section 7129. The ac-
cused 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 re-
liable information, which proves to be true, is all the law re-
quires. We need not inquire what is the law if the informa-
tion 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 defence 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*

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State ex rel. Cunningham, Plaintiff,



(Advance Case, New Hampshire, July 31, 1885.)

A statute which authorizes a justice of the peace to commit to the indus-
trial school a minor under the age of seventeen years, upon a complaint
chargring a crime with respect to which the jurisdiction of the justice only
extends to requiring the accused to recognize with sureties for his appear-
ance at court, is in conflict with art. 1 5 of the Bill of Rights.

Where minors under sixteen years of age are brought before a justice
of the peace upon a complaint charging them with burglary, a crime pun-
ishable by imprisonment in the State prison for a term of years, an order
requiring them to recognize for their appearance before the Supreme Court
exhausts the authority of the justice, and a further order committing them
to the industrial school till respectively attaining their majority is null
and void.

Habeas Carpus, The relator is father of John Cunningham,
aged sixteen years, and of Eddie Cunningham, aged thirteen
years, who were arraigned upon a complaint for burglary
before a justice of the peace, June 10, 1884, and pleaded not
guilty. After an examination, the justice ordered them to
recognize in the sum of $100 each, with sureties, for their
appearance at the October Term of this court, but imme-
diately thereafter, upon the application of the State's counsel,
under ch. 287, § 14, and without the consent of said minors
or their friends, the justice revoked the order to recognize,
refused to take bail, and sentenced John to the industrial
school for two years, and Eddie for three years, and issued
a mittimus for their commitment, which was executed June

At this term, Ray, as superintendent of the industrial
school, having produced them before the court on a writ of
habeas corpus issued upon the relator's petition, a hearing was
had and they were discharged, on the ground that the justice
had no jurisdiction to impose the sentence aforesaid, and the
defendant excepted.

Hoskins & Stoddard for plaintiff.

E. P. Dole for defendant.

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1 36 STATE ex rel. Cunningham v. ray.

Smith, J. — " When any minor under the age of seventeen
years, charged with any offence punishable by imprisonment
faow. otherwise than for life, shall be convicted and sen-

tenced accordingly, or shall be ordered to recognize for his
appearance at the Supreme Court, the court or justice, upon
application of such minor, his friends, or the State's counsel,
may order that, instead of such imprisonment or recognizance,
the said minor may be sent and kept employed and instructed
at the reform school for such term, not less than one year,
nor extending beyond the age of twenty one years, as said
court shall judge most for his true interest and benefit, pro-
vided he shall conduct himself according to the regulations of
said school ; and a copy of such order shall be sufficient
authority for his commitment and detention at such school,"
G. L. c. 287, s. 14. By Laws 1881, c. 37, the name of the
institution was changed to the industrial school. Under the
authority of this statute, the relator's minor sons, one of the
age of thirteen and the other of the age of sixteen years, had
been sent to the industrial school for the terms of three and
two years respectively, neither having been convicted of any
crime or offence. They were brought before a justice of the
peace upon a complaint charging them with having committed
the crime of burglary, — ^a crime of the gravest character and
punishable by imprisonment in the State prison for a long term
of years. The crime was one which the magistrate had not
jurisdiction to determine, but only to inquire if just cause
appeared to hold the accused to answer at the Supreme
Court. They were heard upon no other charge than that set
out in the complaint, and were not in law required to defend
against any other. An order was made requiring them to
recognize for their appearance before the Supreme Court.
So far the justice had jurisdiction. At this stage of the pro-
ceedings, the counsel for the State moved for an order that
the accused be sent to the industrial school, and the justice,
declining the offer of the accused to recognize agreeably to
the order then just made by him, issued an order committing
them to the school for the terms above mentioned. The
commitment was not for the purpose of securing their appear-
ance at the Supreme Court, for the shortest term for which
they might be sent to the school would extend much beyond
the next term of the Supreme Court. If they were committed

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STATE ex rel. Cunningham v, ray. 137

as a punishment for having committed the crime of burglary.,
they have never been tried or convicted of that crime by the
judgment of their peers. Article 15 of the Bill of Rights
provides that " no subject shall be arrested, imprisoned, de-
spoiled, or deprived of his property, immunities, or privileges,
put out of the protection of the law, exiled, or deprived of his
life, liberty, or estate, but by the judgment of his peers or the
law of the land." This clause in our Constitution is a trans-
lation from Magna Charta, and dates from 12 15. Its mean-
ing has become fixed and well determined, " and asserts the
right of every citizen to be secure from all arrests not war-
ranted by law." Mayo v. Wilson, i N. H. 53, 57.

It guarantees the right of trial by jury in all cases where the
right existed at common law in this State at the adoption of
the Constitution. That a person charged with having com-
mitted the crime of burglary is entitled to a jury trial has
never been questioned. As the justice only had jurisdiction
to inquire and not to convict, the accused have had no trial.
Provision is, and ever since the adoption of the Constitution
has been, made by statute for a trial by jury of every crime
indictable by a grand jury, and of every offence where an ap-
peal is taken from the judgment of a justice or poHce court.
Final judgment cannot be enforced for the commfssion of any
police offence, however trivial, until the appellant has been
convicted by a jury of his peers. If the relator's sons were
sent to the industrial school for some other crime or offence,
it was one of which they have never been convicted, and in
violation of article 15 of the Bill of Rights, which provides
that "no subject shall be held to answer for any crime or
offence until the same is fully and plainly, substantially and
formally described to him, or be compelled to accuse or fur-
nish evidence against himself. And every subject shall have
a right to produce all proofs that may be favorable to him-
self, to meet the witnesses against him face to face, and to
be fully heard in his defence by himself and counsel."

But the commitment and detention of the relator's sons is
justified by the respondent upon the ground that
the industrial school is not a prison ; that the order PJ^Ju^^TiIl

f , '^ 111- SCHOOL ILLEGAL.

01 commitment was not a sentence; and that their
detention is not a punishment. The contention is that the
industrial school is a part of the school systena of the State»

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and that the State as parens patria may detain in the school
such scholars as may need its discipline. If it is a privilege
to be admitted a member of the school, it is a privilege limited
to " offenders against the law." At no time since its institu-
tion in 1855 have its doors been open to the admission of any
other class of scholars. Its advantages have not been offered
to every minor under the age of seventeen years who might
CHABAOTKi OF dcslrc to cutcr, or whose parents or guardian might
icHooi!*'''^^ seek to place him there. The relator's sons were
sent to the school, either because they had committed some
crime or offence, or because the justice judged it to be for
their "interest and benefit'* to be placed there. For which-
ever of these causes they were committed, the commitment
was illegal. As already remarked, they have never been con-
victed of the crime of burglary, and they have not been tried
or had any opportunity to defend against any other charge.
If the order for their commitment was made because the
justice judged it to be for their " interest and benefit," the
answer is that he had no authority by statute to commit them
for that cause. Whenever a court or a justice may send a
minor to the school, he may fix the term during which he may
be kept at the school at not less than one year nor extending
beyond the age of twenty-one years, as the court or justice
"shall judge most for his true interest and benefit." The
limit of his stay or confinement in the school is determined by
the consideration of what shall be " most for his true interest
and benefit ;" but the statute does not confer upon the court
or justice the power to send a minor to the school solely for
the reason that the court or justice may be of opinion that it
may be for the interest or benefit of the minor to be sent there.
The original name of the school " House of Reformation for
Juvenile and Female Offenders against the Laws," Laws 1855,
c. 1660, indicated the character of the institution. The act
provided that any boy under the age of eighteen years, or any
female of any age, " convicted of any offence known to the
laws of this State, or punishable by imprisonment, other than
such as may be punished by imprisonment for life," might be
sentenced to the house of reformation. 7^., s. 4. At no period
in its history could a person become an inmate of the institu-
tion, unless, being within the prescribed age, he or she had
been convicted of a crime or offence. The only exception is

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the unconstitutional provision inserted in the revision of 1867
(Gen. Stats, c. 2, s. 14 ; G. L. c. 287, s. 14) authorizing a jus-
tice to send to the school a minor less than seventeen years of
age whom he shall have ordered to recognize for his appear-
ance at the Supreme Court. We cannot ignore the fact that
in the public estimation the school has always been regarded
as a quasi penal institution, and the detention of its inmates
or scholars as involuntary and constrained. The great pur-
pose of the institution was the separation of youthful offenders
from hardened criminals of mature years, in the hope of their
ultimate reformation, and of their becoming useful citizens.
But the fact cannot be overlooked that the detention of the
inmates is regjarded to some extent as a punishment, with
more or less of disgrace attached on that account. comnniBNT to
If the order committing a minor to the school is i^ooif^B ^i
not a sentence, but the substitute for a sentence, as ^"'^'*^
claimed by the respondent, what is a substitute for a sentence
but a sentence in and of itself ? It is worthy of remark that
the legislature has not undertaken to authorize the commit-
ment of a minor to the industrial school upon the mere pre-
sentment of the grand jury.

In this case, the relator, the natural guardian of his sons,
has been deprived of. their care, nurture, education, and
custody, against his consent, and without any trial or hearing
to which he was a party, upon the ground, and dkpwvks
only ground, that the justice found there was just ^5
cause to require them to appear at the Supreme Court to
answer further. If he is not a suitable person to have the
care and education of his children, that fact has not been
found, nor does it appear that their education has been
neglected. But how far he is entitled to be heard upon that
question we do not decide. We have only alluded to the
matter as showing what consequences may flow from the un-
lawful commitment of a minor to this school. Where the
commitment is lawful the loss by the parent of his custody of
his child follows as one of the incidents for which there is no
remedy, and pprhaps in many instances, because of his unfit-
ness, there ought to be none.

It is further deservirtg of consideration that the ?S?'?SlD''iS:
relator's sons, if indicted for the crime of which '^^^ *^"*
they were charged before the justice, cannot plead autrefois


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convict, although they may remain at the schcK)l the full
term for which they were sentenced ; and if their detention
at the school is a punishment, they are liable to be punished
twice for the same offence, in violation of the fundamental
maxim, " Netno debet bis puniri" etc. Broom, Legal Max. 348.
In coming to this conclusion, we have not overlooked the de-
cisions in other States. Milwaukee Industrial School v. Super-
visor Milwaukee County, 40 Wis. 328; s. c, 22 Am. Rep.
702 ; M*Lean Co. v. Humphreys, 104 III. 378 ; Petition of
Ferrier, 103 III. 367; s. c, 42 Am. Rep. 10; Roth v. House
of Refuge, 31 Md. 329 ; Ex parte Crouse, 4 Whart. (Pa.) 9.

In these cases the detention of abandoned, or dependent,
depraved children in houses of refuge or in industrial or re-
form schools is upheld upon the ground that the power of
magistrates and county courts to commit, and of such institu-
tions to detain such children, is " of the same character of
the jurisdiction exercised by the Court of Chancery over the
persons and property of infants, having foundation in the
prerogative of the Crown, flowing from its general power
and duty d^ parens patrice to protect those who have no other
lawful protector; 2 Story Eq. Jur. 1333" (Sheldon, J., in Peti-
tion of Ferrier, supra), or, as stated in Ex parte Crouse, supra,
*' May not the natural parents, when unequal to the task of
education, or unworthy of it, be superseded by the parens
patrice, or common guardian of the community?" As to
the soundness of the reasons given in these cases, we have
nothing to say. No one of them is an authority for the
commitment of a minor charged with the commission of a
crime to such an institution without some kind of a trial and

The People v. Turner, 55 111. 280, was an application by the
AuTHORiTiM fathcr for a writ of habeas corpus for the discharge
REVIEWS. from a reform school of his minor son. A statute
of Illinois authorized the commitment to a reform school of
children between six and sixteen years of age, who are
** vagrants, or destitute of proper parental care, or are grow-
ing up in mendicancy, idleness, or vice," " to remain until re-
formed, or until the age of twenty-one years." The relator's
son, committed to the school under this statute, was dis-
charged, the commitment being held not to have been for any
criminal offence, and the statute was declared unconstitu-

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tional. His confinement was held to be imprisonment with-
out due process of law. Thornton, J., said : " Such a restraint
upon natural liberty is tyranny and oppression. ... If a
father confined or imprisoned his child for one year, the
majesty of the law would frown upon the unnatural act, and
every tender mother and kind father would rise up in arms
against such monstrous inhumanity. Can the State, ?^ parens
patri(By exceed the power of the natural parent, except in pun-
ishing crime ?**

In Commonwealth v. Horregan, 127 Mass. 450, it was held
that certain statutes relating to juvenile offenders, so far as
they purport to give inferior tribunals jurisdiction of offences
punishable by infamous punishment, are unconstitutional.

A statute of Ohio authorizing the grand jury, where a
minor under the age of sixteen years is charged with crime,
and the charge appears to be supported by evidence sufficient
to put the accused upon trial, instead of finding an indict-
ment to return to the court that the accused is a suitable
person to be committed to the house of refuge, directed the
court thereupon to order his commitment without trial by
jury. The statute was declared constitutional. Prescott v.
State, 19 Ohio St. 184 ; s. c, 2 Am. Rep. 388.

The decision is put upon the ground that the case " is nei-
ther a criminal prosecution nor a proceeding according to the
course of the common law, in which the right to a trial by
jury is guaranteed. The proceeding is purely statutory, and
the commitment, in cases like the present, is not designed as
a punishment for crime, but to place minors of the descrip-
tion and for the causes specified in the statute under the
guardianship of the public authorities named, for proper care
and discipline, until they are reformed or arrive at the age
of majority. The institution to which they are committed is
a school, not a prison ; nor is the character of their detention
affected by the fact that it is also a place where juvenile con-
victs may be sent, who would otherwise be condemned to
confinement in the common jail or penitentiary." The statute
further provided that in case the cause for the child's deten-
tion shall be inquired into by a proceeding in habeas corpus, it
shall be a sufficient return to the writ that he was committed
to the guardianship of the directors of the school, and that
the period for his discharge had not arrived. It is intimated,

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in the opinion of the court, that it is questionable whether this
provision can operate to restrict the power of the court, in-
vested by the constitution with jurisdiction in habeas carptis,
from inquiring fully into the cause of the detention of a per-
son restrained of his liberty.

With due respect for the learned court who pronounced
this opinion, we are not convinced of the soundness of the
reasoning or conclusion. The proceedings by which the
accused was adjudged a suitable person to be committed to
the house of refuge were conducted in secret, without his
knowledge or consent, or that of his parent or guardian, with
no opportunity to be represented by counsel, to be confronted
with and cross-examine the witnesses for the prosecution, or
to produce witnesses in his own behalf. The liberty of the
minor during the term of his minority, which might be for a

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 15 of 73)