Deemer, J.
i. action for ^ onmenfcjusstructions. That plaintiff was arrested by defendant, who is a policeman in the city of Burlington, taken to the city jail, and there searched, locked in a cell, and within twenty minutes thereafter released by defendant and the station officer is conceded. The arrest was made about 9 o’clock a. m., and there is evidence tending to*show that it was accompanied by harsh, severe, and brutal treatment, although this is denied by defendant, and the jury accepted the denial as truth. Defendant pleaded in justification that he arrested plaintiff without a warrant under an ordinance of the city of Burlington, giving him authority and making it his duty to make an arrest of all suspicious characters wandering about the thoroughfares of said city, or who are acting suspiciously, and who cannot give sati factory reasons why they are so wandering about. He further [526]*526pleaded, that plaintiff was so wandering and acting at the time of his arrest, and refusing to give satisfactory reasons ' therefor, defendant placed him under arrest. It will be observed that defendant relied solely on the plaintiff’s violation of the city ordinance in justification of the arrest, and pleaded that plaintiff had in fact violated that ordinance.
Notwithstanding the issues thus plainly made by these pleadings, the trial court instructed with reference to vagrancy, under the general statutory provisions, and also gave the following:
“Fifth. It is provided by the statute law of this state that all persons wandering about, and having no visible ■calling or business to maintain themselves, shall be considered vagrants, and that peace officers, upon finding persons engaged in the violation of this law, may arrest them and take them before a magistrate, to be dealt with as by law provided. It is claimed on the part of the defendant that in the arrest and detention of the plaintiff he was acting under this provision of law, and that he had at the time reasonable grounds to believe that the plaintiff was a violator of the same.”
“Sixth. The defendant sets forth in his answer a certain ordinance of the city of Burlington, under which he claims to have acted in the said arrest of the plaintiff. But you aré instructed in this connection that said ordinance is valid only so far as it states and is consistent with the said statute of the state relating to vagrants, as above explained to you; and so far as the said ordinance may attempt to extend the said law of the state, and impose additional restrictions upon citizens, it is void and has no effect, and will afford the defendant in this case no protection for any act he may have committed in violation of law.”
As defendant did not claim to have acted under the state law, but in virtue of the specific provisions of an [527]*527ordinance adopted by the council of the city of Burlington, these instructions were plainly erroneous. Plaintiff was not required to negative any offense save that for which he was arrested, and when the trial court injected into its instructions another, and one which plaintiff was not called upon and had not attempted to meet, it committed error for which there must be a reversal.
The defendant pleaded that plaintiff was wandering about the thoroughfares of the city, and refused to give satisfactory reasons therefor. In its ninth instruction the trial court said, among other things, “that if defendant had reasonable grounds, under the circumstances, and in the exercise of ordinary prudence and cáution, to believe, as a reasonable man, that the plaintiff was without visible calling or business by which to maintain himself, and acted in good faith upon such belief in making the arrest, you should find that the same was lawful, even-if the defendant had no formal warrant for the same.” No such issue as is here presented was involved in the case,' and the error in the charge is apparent.
The sixth instruction, which we have quoted, was also erroneous, for the reason that it was the duty of the court to tell the jury that the provision of the ordinance on which defendant relied was either valid or invalid, and not to leave it to that body to select out what it conceived, under the instruction, to be good, and reject that which was bad.
As the arrest was made without a warrant, and as defendant claimed that plaintiff was actually violating the ordinance of the city, the court was in error in submitting the question as to reasonable grounds of belief that plaintiff had committed the offense claimed. Nothing but actual damages were asked, and defendant’s plea was that plaintiff was guilty of the offense for which he was arrested. Other instructions along the same line were also erro'neous. Holmes v. Blyler, 80 Iowa, 365.
[528]*528Defendant made the arrest without a warrant, and plaintiff asked th,e court to instruct as follows: “(c) In the case it is admitted by the defendant that he had no warrant for the arrest of the plaintiff. The laws of the state permit an arrest without a warrant, ‘on view,’ as it is sometimes termed, either (1) when a public offense is committed or attempted in the presence of the officer; or (2) when a public offense has been in fact committed, and he has reasonable ground for believing that the person to be arrested has committed it. It is claimed by the defendant in his answer that he arrested plaintiff for the first cause, — that is, for a public offense committed or attempted in his presence; and, unless this fact has been proven by him by a fair preponderance of the evidence, 'his plea of'justification has failed, and justification at your hands cannot be made out upon any other ground than that set up by the defendant in his plea of justification. ” This should have been given.
2. manner of arrest: instmction. As to the manner of making an arrest, the court instructed as follows: “Twelfth. It was also the duty of the defendant, if he had lawfully arrested the plaintiff, to inform him of the nature of the charge against . . him, and to take him before a magistrate within a reasonable time, in order that a judicial examination of the charges made against him might be had, and their correctness or falsity be determined. And if the jury should find, from a preponderance of the evidence, that the defendant, after arresting the. plaintiff, failed to inform him of the charge against’ him, and to take him before a magistrate for examination within a reasonable time, and that the plaintiff has suffered damages by reason of such wrongful neglect of duty by the defendant, then it will be your duty to allow the plaintiff such damages as you may find, from a preponderance of the evidence, that he has sustained as the direct result of the said wrongful failure of the defendant to comply with the laws relating [529]*529to the arrest and detention of persons charged with crimes.” This was also erroneous. Code, section 5199, defines the manner of making an arrest and the instruction is not in harmony therewith.
- release from eíafciSmV’ for damages. Defendant released plaintiff without taking him before a magistrate. The trial court gave the following 'instruction with reference thereto: “Thirteenth.
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Deemer, J.
i. action for ^ onmenfcjusstructions. That plaintiff was arrested by defendant, who is a policeman in the city of Burlington, taken to the city jail, and there searched, locked in a cell, and within twenty minutes thereafter released by defendant and the station officer is conceded. The arrest was made about 9 o’clock a. m., and there is evidence tending to*show that it was accompanied by harsh, severe, and brutal treatment, although this is denied by defendant, and the jury accepted the denial as truth. Defendant pleaded in justification that he arrested plaintiff without a warrant under an ordinance of the city of Burlington, giving him authority and making it his duty to make an arrest of all suspicious characters wandering about the thoroughfares of said city, or who are acting suspiciously, and who cannot give sati factory reasons why they are so wandering about. He further [526]*526pleaded, that plaintiff was so wandering and acting at the time of his arrest, and refusing to give satisfactory reasons ' therefor, defendant placed him under arrest. It will be observed that defendant relied solely on the plaintiff’s violation of the city ordinance in justification of the arrest, and pleaded that plaintiff had in fact violated that ordinance.
Notwithstanding the issues thus plainly made by these pleadings, the trial court instructed with reference to vagrancy, under the general statutory provisions, and also gave the following:
“Fifth. It is provided by the statute law of this state that all persons wandering about, and having no visible ■calling or business to maintain themselves, shall be considered vagrants, and that peace officers, upon finding persons engaged in the violation of this law, may arrest them and take them before a magistrate, to be dealt with as by law provided. It is claimed on the part of the defendant that in the arrest and detention of the plaintiff he was acting under this provision of law, and that he had at the time reasonable grounds to believe that the plaintiff was a violator of the same.”
“Sixth. The defendant sets forth in his answer a certain ordinance of the city of Burlington, under which he claims to have acted in the said arrest of the plaintiff. But you aré instructed in this connection that said ordinance is valid only so far as it states and is consistent with the said statute of the state relating to vagrants, as above explained to you; and so far as the said ordinance may attempt to extend the said law of the state, and impose additional restrictions upon citizens, it is void and has no effect, and will afford the defendant in this case no protection for any act he may have committed in violation of law.”
As defendant did not claim to have acted under the state law, but in virtue of the specific provisions of an [527]*527ordinance adopted by the council of the city of Burlington, these instructions were plainly erroneous. Plaintiff was not required to negative any offense save that for which he was arrested, and when the trial court injected into its instructions another, and one which plaintiff was not called upon and had not attempted to meet, it committed error for which there must be a reversal.
The defendant pleaded that plaintiff was wandering about the thoroughfares of the city, and refused to give satisfactory reasons therefor. In its ninth instruction the trial court said, among other things, “that if defendant had reasonable grounds, under the circumstances, and in the exercise of ordinary prudence and cáution, to believe, as a reasonable man, that the plaintiff was without visible calling or business by which to maintain himself, and acted in good faith upon such belief in making the arrest, you should find that the same was lawful, even-if the defendant had no formal warrant for the same.” No such issue as is here presented was involved in the case,' and the error in the charge is apparent.
The sixth instruction, which we have quoted, was also erroneous, for the reason that it was the duty of the court to tell the jury that the provision of the ordinance on which defendant relied was either valid or invalid, and not to leave it to that body to select out what it conceived, under the instruction, to be good, and reject that which was bad.
As the arrest was made without a warrant, and as defendant claimed that plaintiff was actually violating the ordinance of the city, the court was in error in submitting the question as to reasonable grounds of belief that plaintiff had committed the offense claimed. Nothing but actual damages were asked, and defendant’s plea was that plaintiff was guilty of the offense for which he was arrested. Other instructions along the same line were also erro'neous. Holmes v. Blyler, 80 Iowa, 365.
[528]*528Defendant made the arrest without a warrant, and plaintiff asked th,e court to instruct as follows: “(c) In the case it is admitted by the defendant that he had no warrant for the arrest of the plaintiff. The laws of the state permit an arrest without a warrant, ‘on view,’ as it is sometimes termed, either (1) when a public offense is committed or attempted in the presence of the officer; or (2) when a public offense has been in fact committed, and he has reasonable ground for believing that the person to be arrested has committed it. It is claimed by the defendant in his answer that he arrested plaintiff for the first cause, — that is, for a public offense committed or attempted in his presence; and, unless this fact has been proven by him by a fair preponderance of the evidence, 'his plea of'justification has failed, and justification at your hands cannot be made out upon any other ground than that set up by the defendant in his plea of justification. ” This should have been given.
2. manner of arrest: instmction. As to the manner of making an arrest, the court instructed as follows: “Twelfth. It was also the duty of the defendant, if he had lawfully arrested the plaintiff, to inform him of the nature of the charge against . . him, and to take him before a magistrate within a reasonable time, in order that a judicial examination of the charges made against him might be had, and their correctness or falsity be determined. And if the jury should find, from a preponderance of the evidence, that the defendant, after arresting the. plaintiff, failed to inform him of the charge against’ him, and to take him before a magistrate for examination within a reasonable time, and that the plaintiff has suffered damages by reason of such wrongful neglect of duty by the defendant, then it will be your duty to allow the plaintiff such damages as you may find, from a preponderance of the evidence, that he has sustained as the direct result of the said wrongful failure of the defendant to comply with the laws relating [529]*529to the arrest and detention of persons charged with crimes.” This was also erroneous. Code, section 5199, defines the manner of making an arrest and the instruction is not in harmony therewith.
- release from eíafciSmV’ for damages. Defendant released plaintiff without taking him before a magistrate. The trial court gave the following 'instruction with reference thereto: “Thirteenth. In this connection, however, you are instructed that, if the defendant had lawfully arrested the p]aintiff, he was entitled to a reasonable time within which to bring him before a magistrate or court for trial, and that it was his duty in the meantime to continue him in custody; and you are further instructed that while the plaintiff was entitled to a speedy consideration of his case by a judicial officer, and while the defendant had no right to determine the extent of his guilt or innocence, yet if the defendant, before trial of the plaintiff could be had, became satisfied of his innocence, and offered to release him, and the plaintiff willingly accepted such release, he then cannot complain that he has suffered damages by reason of the failure of the defendant to place him upon trial before a court or magistrate.” This was also erroneous, in that plaintiff’s release, under the circumstances, would not amount to a waiver of any' claims for damages.
4 withl dutyWofrrant: officer. Other instructions are complained of. We do nob set them out, for to do so would unduly extend this opinion. We have sufficiently indicated our views as to the principles °f law involved to guide the trial court on every proposition involved, save one, and that is the effect to be given the release of plaintiff by the defendant without trial. As the arrest was made without a warrant, it was the duty of defendant to take plaintiff before a magistrate, and make complaint before such officer. Code, section 662, 661, 5208. As he [530]*530failed to do this, but discharged plaintiff on his own motion, he became a trespasser ab initio. Brock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390, and cases cited. The release, under the circumstances.disclosed, did not constitute' a waiver of damages. Joyce v. Parkhurst, 150 Mass. 243, 22 N. E. Rep. 899.
For the errors pointed out, the judgment must be, and it is, reversed.