Murphy v. Kron

20 Abb. N. Cas. 259

Opinion

By the Court.

Footnotes

•

*—Haight, J.

Section 170 of the Code of Criminal Procedure provides that: “ If the crime

charged be a felony, the arrest may be made on any day and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday or at night unless by direction of the magistrate endorsed upon the warrant.” It follows that the defendants were not justified in making the arrest at the time that they did, and that the court properly charged that there was a false imprisonment as soon as the defendants took the plaintiff into custody.

It is contended that the complaint should hav.e been dismissed as against the defendant Bletzer, on the ground that there is no evidence on which the jury could find a verdict against him, and that the court erred in refusing such motion. If, however, the testimony of the plaintiff is to be believed, Bletzer was present in the house aiding and assisting the defendant Kron in making the arrest, even to the extent of putting his hands upon the plaintiff and holding him by the shoulder whilst walking down the street as far as the bridge.

But, again, he admitted in his answer that he made the arrest. The defendants united in their answer, and as to the complaint for false imprisonment, they denied each and every allegation, “ except as hereinafter expressly and specifically admitted or alleged.” They then proceeded to allege that the warrant was issued by the police justice and delivered to the defendants. That the defendants thereupon proceeded to the house of the plaintiff, in the city of Rochester, and found the outer door of the house locked ; that the defendants rapped upon the door ; that the defendants informed the plaintiff that they were police officers and had a warrant for his arrest. Again, the defendants further allege, that they thereupon arrested the plaintiff ami took him to the police office. It is a familiar rule that a party is bound by his pleading, and under this answer the defendant Bletzer not only admits, but alleges, that the arrest was made by him.

It is contended that the court erred in refusing to dismiss the complaint as to the allegation of an assault and battery. As we have already stated, the evidence upon this branch of the ease was conflicting, and it consequently became a question for the jury under proper instructions.

The court was also asked to instruct, the jury that it may find against one defendant and in favor of the other if the evidence warrants it. This was declined and exception taken. Tiiis request, would have been proper had it not been for the joint, answer of the defendants in which they both admit and allege that the, arrest was made by them. In view of the answer the roque» t 'was properly denied.

It also appeared in the evidence that after the defendants had rapped upon the door of the plaintiff’s house, some conversation took place between the plaintiff and the defendants in which they demanded admittance, stating that they were officers; that thereupon the plaintiff fired off a revolver in the house. The defendants requested the court to charge that if the plaintiff aimed or discharged the pistol at or toward any human being, that that constituted a crime, and for that the defendants were justified in arresting him, and also that if the plaintiff wilfully discharged any kind of a firearm in any place where any person was put in danger thereby, even though no injury did ensue to any per- ' son, if it was committed in the presence of the defendants, they were justified in arresting him. These requests were refused and exception taken. Had the defendants arrested the plaintiff for firing off the pistol, it is possible that the defendants would have been entitled to this charge; but it appears that after they entered the house they arrested the plaintiff upon the warrant. It further appears, that after they had taken him to the station-house the warrant was returned, endorsed thereon that he had been arrested “ By virtue of the within warrant,” and that no complaint was made Against him of any other crime. We are consequently of the opinion that the requests were properly denied.

Upon the trial it appeared that the plaintiff was discharged by the magistrate, and was again, subsequently, arrested upon another warrant, issued upon the complaint of Mr. Homan for the same offence. Upon the cross-examination the plaintiff was asked, “ if he paid Hem an anything' to settle the matter of the stealing of the dog.”

This was objected to and an exception taken. If he was under arrest and had settled the matter, it is claimed that it would amount to an admission that he was guilty of some offence, and the evidence would consequently have been proper as bearing upon his credibility. This, however, would not amount to a defence, for under the conceded facts in the case, the arrest was made in the night-time, by virtue of a warrant that did not authorize an arrest at that time. The evidence, consequently, would not change the result, and "wo are of the opinion that the error, if any, may be disregarded.

The judgment and order should he affirmed.

Present, Smith, P. J., and Haight and Eradle?, JJ„,