and if force is used which is greater than is reasonably necessary for the carrying out of his duty, the officer is not protected from the consequences of his acts,12 and the person so attacked may resist force with force. 13 Nor is it an officer's duty under cover of a valid warrant for one man to force his way into the home of a third person where the wanted person may be lodging.14 There is a marked difference of opinion as to whether an officer is under a duty to go so far as to kill a man who resists arrest or who is trying to escape from an arrest already made. In Plummer v. State,15 it was held that an officer may use force to overcome resistance to arrest, even to killing the resister. But Stephen v. Commonwealth16 holds that resistance to arrest for breach of peace does not justify killing the resister. Not only an officer of the law but a civilian also who is called upon to assist the officer, is protected from the consequences of his acts. It is the right and duty of a bystander to assist an officer in the discharge of his duty even to the extent of killing the one whom the officer is trying to get. But a civilian cannot, upon his own initiative, undertake to act as an officer of the law.18 In this connection, however, an interesting case is that of State v. Shockley.19 The W. (Ky.) 294; Cf. also, Pennington v. Commonwealth, 51 S. W. 818; Neeley v. Comm., 93 S. W. 596: Jackson v. Comm., 93 S. S. 598; State v. Evans, 161 Mo. 95; 61 S. W. 590; State v. Horner, 53 S. E. 136, 139 N. C. 603; State v. Davis, 31 S. E. 62, 53 S. C. 150; State v. Byrd, 51 S. E. 542, 72 S. C. 104; Harden v. State, 49 S. W. 607, 40 Tex. Cr. Rep. 208. (12) Burton v. Commonwealth, 66 S. W. 516; State v. Harper, 149 Mo. 514, 51 S. W. 89. (13) Hughes V. Commonwealth, 41 S. W. (Ky.) 294; Coleman v. State, 49 S. E. 716, 121 Ga. 591. Cf. also some of the cases cited in note 11 supra. (14) Oystead v. Shed, 13 Mass. 520. (16) 47 S. W. 229. In acc. Commonwealth v. Rhodes, 23 Pa. Sup. Ct. 512; Harden v. State, 49 S. S. 607, 40 Tex. Cr. R. 208; Cf. also State v. Hickey, 57 A. 264; 70 N. J. Law 623, and Head v. Martin, 7 Ky. Law Rep. (Abs.) 361. facts were as follows: A highwayman entered a street car for the purpose of robbing the passengers. He ordered them to "throw up their hands." One of the passengers refused to comply with the order, drew a revolver and ordered the highwayman to throw up his hands. Shots were exchanged and the passenger was killed. It was held, that when the robber was told to put up his hands he was, in effect, put under arrest, as by statute, a citizen can arrest another for a public offense committed or attempted in his presence. It was further held that the robber when indicted for murder cannot claim self-defense.20 Soldiers and sailors are also free from liability for acts performed in obedience to orders given by their superiors. The case of United States v. Clark, decided in 1887. is a leading one.20a Here one S was a military prisoner. He made an attempt to escape. After calling upon him to halt, C. a sentry, doing prison guard, shot and killed S. A court of inquiry found that C had killed S in line of duty and considered further action unnecessary. As an act which is criminal by both civil and military law, can be tried by both civil and military tribunals,21 C was arrested and brought before a civil court. It was held, that C was not guilty of murder. The court quoted with approval from McCall v. McDowell, where it is said, "that except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his commander."23 More recently the same result was reached in Pennsylvania where a member of the militia was arrested for killing a man in line of duty. This of course, does not (20) But compare this case with Vann V. State, 77 S. W. 813. 606. (24) L. R. A. 193. Cf. Wilkes v. Dinsman, 7 How. 89. Commonwealth v. Shotall, 55 Atl. 952, 65 hold true if the soldier belongs to forces | such cases the social interest is paramount that are in armed rebellion against the Sovereign by whose court he is tried.25 In all of these cases there is obviously a balancing of the interests of the individual who is hurt against the interests of the State, and the general rule to be deduced from the cases is this: Where the act which is done in line of duty impairs the individual interest of personality, but secures the public interest, that is the integrity and the existence of the State, the doer of the act will be protected from any evil consequences of his act. Two other cases can be noted in passing. The first of these is People v. Fitzgerald.26 In this case a public officer exhumed a body for a post mortem examination as he feared that foul play had been committed. There was a statute making "body-snatching" a crime. Under this statute the lower court convicted the public officer of the crime of body stealing. On appeal the judgment was reversed. Rappalo, J., said: and acts done in line of duty and in accordance with the social interest will not be punished. The second case is State v. Mayor and Aldermen of Knoxville.27 There was a smallpox epidemic in the city of Knoxville. The Mayor of the city established a hospital about two miles away from the city to which the smallpox patients were taken. To prevent the spread of the disease all clothing, beds and bedsteads used by the patients were burned in pits under proper supervision of the physicians of the hospital. The pits were some four hundred yards away from the nearest dwellings. This burning created smoke and offensive smells which annoyed the inhabitants of the surrounding dwellings. The Mayor and others were indicted for maintaining a nuisance. It was held that the defendants were not criminally liable. Freeman, J., said: "The rule applicable to such a case is "The intent of the statute is manifest. It that if the act was done by public authority certainly was not intended to apply to ex- or sanction, and in good faith, and was done humations made by legally constituted pubfor the public safety and to prevent the lic authorities for the purpose of ascertain- spread of the disease, and such means used ing whether crime has been committed in as are usually resorted to and approved by producing the death of the person whose medical science in such cases, and was done body is exhumed. When the exhumation is with reasonable care and regard for the made not secretly but publicly, on open ap- safety of others, then the parties were jusplication to the officer of justice charged tified in what they did, and the parties inwith the duty of inquiring into the cause of convenienced could not complain, nor could death of any person whose body is brought the state enforce a criminal liability for rewithin his jurisdiction, it is a total misap-sults of temporary inconvenience or unplication of the statute against body stealing to use it for the purpose of imposing its punishment on all persons concerned in the exhumation, in case any proceedings of the officer, under whose direction it was made, should be found irregular." pleasantness that accrue from the use of such proper and accredited means for the safety of the community against the spread of disease." Here the social interest in the general security was considered as being more important than the individual interests of personality and acts done in furtherance of the former were supported. That is: Where the act which is done in line of duty impairs the individual interest of personality but promotes the social interest in the general security, by safeguarding the general health of the community, the (27) 12 Lea (Tenn.) 146. doer of the act will be protected from any evil consequences of his act. Where There Is Authority to Act.-Legal terminology is, at times, elusive and unsatisfactory. One cannot always be sure as to just what meaning will be attached to a word or phrase that is used. This is quite true of the word "authority." In the digests, dictionaries and decisions, the word is used in two distinct senses. In the first sense a man is said to be authorized to act if he is so related to another that he must obey the commands of that other, and the command is given. An example of this is where a court issues a warrant for the arrest of X and policeman Y is told to make the arrest. Y is said to "have the authority" to make the arrest. Here Y is simply a conduit for the desires of the court, and acts for the court. The impulse to act comes from the court and not from Y. On the other hand, suppose that one, A, is trying to kill his wife. B, a civilian, comes along, interferes and does some harm, necessary under the circumstances, to A, while rescuing the wife of A. B is said "to have the authority" to interfere.27a But as compared with the preceding case this "authority" is rather vague and general. There has been no definite order to act, which order had to be obeyed. B is not a conduit for anyone else. The imWhen pulse to act comes from himself. we say that he has "authority" to act we mean simply that if he does act he will be immune from punishment for his acts. In this sense "authority" means "privilege" as Dean Pound defines that word. He says: "A privilege is an exemption from legal accountability for what, but for the privilege, would be a breach of duty."28 In the first sense "authority" connotes a duty to act; that is the one acting will be punished for a failure to act and will be protected if he does act. In the second sense, "authority" connotes a privilege to act; the one acting does not have to do so, but if he (27a) Hancock v. Baker, 2 B. & P. 260. (28) Roscoe Pound; Outline of a Course on the History and System of the Common Law, page 5. does he will not be punished for so acting. In this article the word "authority" is used in the second sense. Authority to Injure Animals Belonging to Another. The general rule is that if a person is attacked by an animal, or finds a dangerous animal roaming at large, he may kill that animal.29 One case extends the doctrine somewhat by holding that if a dog disturbs the quiet of the inhabitant of a dwelling house, and he cannot otherwise prevent the dog from being an annoyance, the inhabitant may kill the dog.30 But one cannot kill a non-dangerous animal unless a real attack is made;31 and the mere presence of such animals on one's premises does not give authority to kill, if no present damage is being done. Nor can one go upon another's premises to kill an animal even if such killing is justifiable and there is a statute permitting such killing. Some specific instances are these; one who has been bitten by a dog can kill it as a common nuisance; nor need the killing be done at the time one is bitten to have the protection of a statute giving immunity from the killing. But a case contra to this last one is Allen v. Camp. Here the plaintiff's dog bit the defendant's child. A few days later the defendant went on the plaintiff's premises and killed the dog, so that he could have 32 33 33 (29) Woolf v. Chalker, 31 Conn. 121; Brent v. Kimball, 60 Ill. 211; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Dunlap v. Snyder, 17 Barb. (N. Y.) 561; People v. Board of Metropolitan Police, 24 How. Prac. (N. Y.) 481; Putnam v. Payne, 13 Johns (N. Y.) 312; Russell v. Barrow, 7 Port. Ala.) 106; Reynolds v. Phillips, 13 Ill. Appls. (13 Bradw.) 557; Nehr v. State, 35 Neb. 638, 53 N. W. 589. 17 L. R. A. 771; Credit v. Brown, 10 Johns (N. Y.) 365. (30) Brill v. Flagler, 23 Wend. 354 (1840). (31) Perry v. Phillips, 32 N. J. Law (10 Ired.) 259; Spaight v. McGovern, 16 R. 1. 658, 7 L. R. A. 388; Atchison v. State, 72 S. W. (Tex.) 998. (32) Brent v. Kimball, 60 III. 211; Barrett v. Utley, 75 Ky. (12 Bush) 399. (33) Gibbons v. Van Alstyne, 9 N. Y. S. 156; Bishop v. Fahey, 81 Mass. (15 Gray) 161; McAnny v. Jewett, 92 Mass. (10 Allen) 151; Kerr v. Seaver, 93 Mass. (11 Allen) 151; Cozzens v. Nasons, 109 Mass. 275. (34) Bowers v. Fitzrandolph, Add. 215 (Denn. 36 the dog's head examined to find out if it were infected with rabies. It was held that the killing was illegal and the defendant was liable for the death of the dog. That is, I take it, that an animal cannot be killed simply because it is suspected of being a dangerous animal. This idea is supported by Dodson v. Mock, where a dog snapped at one man's heels, barked at another man's horse, stole an egg, was suspected of worrying sheep several years before and was killed by the defendant in the case. It was held not to have been a justifiable killing. Authority to Arrest and Imprison. "Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law." This applies to officers of the law as well as to civilians, and the rule is of very long standing that an officer cannot arrest a person without a warrant (which shows that he is under a duty to make the arrest), unless a felony or misdemeanor is committed in his presence,* or unless the officer has reason 42 43 able grounds for suspicion that the person arrested has committed a felony. Where such facts do not exist the officer making the arrest is liable in damages for injuries and indignities received at the hands of the officer, or other officers to whom custody was transferred, and for all damages resulting therefrom." It therefore follows that an officer who makes an arrest on the sole authority of a telegram received from a private person does so at his peril;45 nor can he act in reliance upon a void process, the rule of a railroad company, or a city ordinance dealing with the rights of a policeman to ride free on a street-car, or a city ordinance prohibiting girls under eighteen from entering a public dance hall.49. 48 46 Selling meat without a license does not authorize a policeman to make a summary arrest without a warrant;50 nor does selling popcorn without a license in violation of a city ordinance authorize the mayor of the city to make a summary arrest without a warrant.51 A game warden cannot arrest a person who, he has probable cause or reason to believe, has broken the game laws, without a warrant.52 But a night watch tent to mislead him. Cf. Emerson v. Balch, 5 Dane Abr. 566. (43) Thierrault v. Breton, 95 Atl. 699, 114 Me. 137: Burns v. Erber, 40 N. Y. 463. (44) Ross v. Kohler, 174 S. W. 36, 163 Ky. 583; Cf. Johnson v. Collins, 89 S. W. 253 (Ky.); J. C. R. R. Co. v. Wilson, 103 S. W. 364 (Ky.); Hall v. Hall, 3 Allen (Mass.) 5; Fenelon v. Butts, 53 Wis. 344; 10 N. W. 501; Jacques v. Parke, 96 Me. 268, 52 Atl. 763. Scott v. Flowers, 60 Neb. 680, 84 N. W. 81; Abrahams v. Cooper, 81 Pa. 232; Drum v. Cessnum, 61 Kan. 472, 59 Pac. 1078; Kindred v. Still, 51 I. 401; Miller v. Fano, 134 tal. 109, 66 Pac. 185. (In the last case a policeman arrested the wrong man and he was held liable for false imprisonment and for damages resulting therefrom.) (45) Janes v. Wilson, 44 Sp. 275, 119 La. 491; Polansky v. Pa. R. R. Co., 184 Fed. 561; The Tillie Baker, 168 F. 41. (46) Field v. Loftes, 88 N. E. 281; 240 II. 105. ut for voidable process see, Johnson v. Scott, 121 S. W. 695, 134 Ky. 736. (47) Hull v. B. & M. R. R., 96 N. E. 58, 210 Mass. 159. 28. (48) Wrvin v. Burke, 83 Atl. 772, 83 N. J. Law (49) Cullen v. Dickinson, 144 N. W. 656. (50) Schnider v. Montrose, 122 N. W. 534, 158 Mich. 263. (51) Tillman v. Beard, 121 Mich. 475. (52) Jackson v. Miller, 86 A. 50, I. R. N. J. Law 189. man catching a thief in the building which the watchman is hired to guard can arrest the thief without a warrant.53 These cases show that; The public interest in the State as the guardian of social interests will not prevail over the individual interest of personality, unless re-inforced by the social interest in the general security. Authority of Parents and Teachers to Chastise Children.—In the case of State v. Koonse, a Johnson, J., states the law governing the punishment of children by parents as follows: "It is essential to pronounce the test by which in a given case, corporal punishment inflicted on a child by his parent is to be classified as a lawful chastisement or as an assault for which the parent should be punished. The law accords to parents a wide latitude in which to exercise discretion in the enforcement of family discipline. The extent and nature of the punishment to be applied as a corrective of youthful disobedience or excess is wisely left to the judgment of the parent, whose natural love for his child is deemed to provide an efficient barrier against any impulse to punish with undue severity. The parent is the sole judge of the necessity for the exercise of the disciplinary right and of the nature of the correction to be given, and the mere fact that a castigation he gives his child may appear to others to be unnecessarily harsh or severe does not make of his conduct a subject of judicial cognizance. So long as he acts in good faith, honestly thinking that what he does is for the benefit of the child, he is within his prerogative, and the law will not interfere. Courts do not and should not institute themselves the arbiters of the household. There the authority of the parents, within the limits. we shall presently define, is supreme and from their judgment there is no appeal. But these domestic tribunals have limits to their jurisdiction beyond which they may not go with impunity. The welfare of the child is the principal ground on which the parental right to chastise him is founded, and, where the punishment inflicted is so excessive and cruel as to show beyond a reasonable doubt that the parent was not acting in good faith for the benefit of the child, but to satisfy his own evil passion, (53) Giorgio v. Batterman, 118 N. Y. S. $28. (53a) 101 S. W. 139. he no longer is to be considered as a judge administering the law of the household, but as a malefactor guilty of an unlawful assault upon a helpless person entrusted to his care and protection. Thus to maim the child, or to endanger his life or health, or to severely beat him with an improper and dangerous instrument, or to subject him to unusual forms of physical torture, or to whip him with such excessive severity as implies the absence of a due appreciation of parental duty, are acts which in themselves bespeak evil intent, and a parent guilty of such excess will not be heard to say that he thought he was acting for the benefit of the child."54 Cf. (54) Rowe v. Rugg, 101 S. W. 139, 141. also State v. Boyer, 70 Mo. Appl. 156; Commonwealth v. Randall, 4 Gray (Mass.) 36; Danenhoffer v. State, 69 Ind. 295; State v. Jones, 95 N. C. 588; State v. Dickerson, 98 N. C. 708. (55) Some of the cases are: Hutchinson v. Hutchinson, 57 P. 674, 124 Cal. 677; Hornbeck v. State, 45 N. E. 620, 16 Ind. Appl. 484; Rowe v. Rugg, 91 N. W. 903, 117 Iowa 606; Proctor v. Rhodes, 4 Ky. Law Rep. 320; Van Meter v. True, 16 Ky. Law Rep. 320; People v. Greene, 119 N. W. 1087, 155 Mich. 524, 21 L. R. A. (N. S.) 216; State v. Washington, 29 Sp. 55, 104 La. 443. (56) Cf. Roscoe Pound; Individual Interests in the Domestic Relations, 14 Michigan Law Review 177. (57) Cf. my paper, "The Domicile of a Married Woman, II," 91 Central Law Journal, 24. (58) Rowe v. Rugg, 117 Iowa, 606, 91 N. W. 903; Proctor v. Rhodes, 4 Ky. Law Reports (abstract) 453; Van Meter v. True, 16 Ky. Law Rep. 320: Clasen v. Pruhs, 95 N. W. 640, 69 Neb. 278. (59) Rowe v. Rugg, 117 Iowa 606, 91 N. W 903. |