People v. Bush

1 Wheel. Cr. Cas. 137

• Court: New York Court of Common Pleas
• Decided: January 15, 1823
• Status: Published

Opinion

By the Court.

“If the witnesses have been subpoenaed “ and the process returned, let an attachment issue against “ them : the court will not order the trial on until time has “ been given for the issuing, execution, and return of the ° a} 3 u attachment.”

This was an indictment against Jonas Bush, a' captain; of the city watch, for assault and battery upon Ann Baxter, onjhe 10th day of December, 1822, between 10 and °’clock in the evening.

The facts of the case appeared as follows : Miss Baxter was walking along the street on the collect a few minutes1 a^er ^ °’c^ock- She came up to Mr Bush and called him “ cousin,” and repeated the expression two or three tknes to him. He took hold of her arm and called Mr, M’Kinney, a watchman, and ordered him to take care of the prisoner. Mr. M’Kinney took her to the watch-house, where she was confined, and next morning discharged.

Process was issued against Bush, and bail entered for his appearance at the sessions, to answer for an assault and battery.

Wilson proved, upon the cross-examination of M’Kinney and other witnesses, that Bush took hold of the prosecutor in a mild and gentle manner, that he used no harsh expression to her. He also offered to show that she was-a woman of bad character, and known to be such : that she was, but a moment before, seen by Mr. Bush/coming' out of a house of ill-fame : that she had separated herself from her husband, and was notoriously a bad woman.

Maxwell objected to the introduction of such testimony,, and contended that no officer had a right to arrest and detain the person of a citizen, however bad his character might be, who was guilty of no crime : that the liberty of the citizen was too precious to be violated with impunity by the power of any officer.

The court overruled the evidence. They observed that it would not alter the case whether the prosecutor was a woman of good or bad character : that she had a legal sight to walk the streets unmolested—provided she conimitted no breach of the peace, and gave no good ground to suspect her of felony : that ,the "person of a citizen was sacred : they could not be arrested and thrown into prison at the whim or caprice of the watch or any other thority : that in this case it did not appear that any of-fence at all was committed; the prosecutor came up to the defendant and called him “ cousin this certainly cannot ■be an offence to merit an imprisonment: besides, it appears by the evidence, that she really mistook the defendant for her cousin,

'Note.—Watchmen, by the common law, have authority to arrest, and detain in prison for examination, all persons walking the street at night, whom there is a reasonable ground to suspect guilty of felony, although there may be no proof of a felony having been committed. Chit. vol. 1. p. 20. 2 Hale, 96.

But at common law, no peace-officer is justified in taking up a night-walker, unless he has committed some disorderly or suspicious act. 2 Ld. Raymond, 1301.

See also Bac. ab. Trespass, D. 2 Hale, 96—98. 3 Taun. 14. Burns, J. Watch. 1 East. P. C. 303. 2 Inst. 52. City Hall JEtec. vol, 1. p. 39.

See Williamson’s case, City Hall Rec. vol. 4. p. 57.

See also a, leading case. 11 John. Rep. 486.