Evening star. [volume] (Washington, D.C.) 1854-1972, 1879-09-17
What Policemen c.uuo, M.

tslbany Law journal. September ls1
There Is subject to which attention ia con.
the assizes and other criminal courts and
which was lately illustrated by a judicial daci-
sion In the Queens bench, and appears to ne.
received; we mean the onense OF assaulIing or
obstructlng the police in the execution of their
duty. The law, while providing peculiarly Sc.
we're penalties for the ofrense OF assaulting or
obstructing them in the execution OF their duty,
imposes, In the very definition OF the offense, q
condltlon that they, at the time OF the assault
or obstruction, are engaged sin the execution
careful consideration; yet it is too often very
carelessly passed over In many classes OF cases
IN winch IL appears clear that the first act OF
force or violence emanated from the police
man, and he has attempted to take the man.
or he has pushed him, or the like. 1t is In ali
such cases to be considered whether the DO
nceman, whether by common law or by stat
ute, had any power TO touch the party, either
by pushing him or taking him into custody.
For, If not, then the man would have q right
to resist him and defend himself from assault,
and II death ensued In the struggle the man. il
he killed the policeman, would not be guilty of
murder, and perhaps not even of manslaugh.
ter, and II The policeman killed the man he
would be guilty OF murder. If policeman,
without warrant, endeavOrs to arrest man
for mere misdemeanor not committed in his
presence, the man may resist even to death,
and, unless he uses cruelty and unnecessarily q
deadly weapon or deadly violence, even IL he
Kill the policeman, he will not be guilty of
murder, and may be legally tustifiable. A con-
stable has no right to arrest a disorderly person
unless ne Is committing or is on the point of
attempts 1t he may be resisted. And If the
constable is killed in resisting him it is not
even manslaughter, unless there is some ex-
cess. Thus 1t is clear that where the police
man attempts to arrest, unless he is legally
Justifled In arreSttng, resistance to him to any
extent necessary will be lawful and justfiable,
and cannot form subject of q criminal charge
nrtncinlp fhaf r no
policeman, having no power to arrest offer
any force or violence to the person, as by push
ing This Will justify resistance or so far excuse
1t that he Will not be justified In arresting the
party for the resistance; and IL he attempts to
arrest, the man may resist apprehension. and
the poltcemantf assaulted viii not be assault
contrary win be guilty of illegal violence while
being lawfully resisted. The police have a
notion, for Instance, that II any one is drunk,
or is making little noise, the person may be
daily persons are thus treated, and IL they re-
sist are charged with assaulting the police in
the execution of their duly, and probably con-
vlcted sunmarily or on trial and visited with
severe punishment.
Magistrates constantly allow very loose and
arbitrary application OF these statutory powers
OF the police; and some years ago this misap-
prehension OF the law was painfully illustrated.
The managing clerk to large city house going
home one night after dining out, stopped to
nave little badfnage With a servant girl. A
policeman-jealous, perhaps, Of what looked
like poaching on his manor-roughly told him
to go on. The gentleman refused; the police
man pushed and hustled him, no doubt TO pro-
woke him; the gentleman resisted scuffie en-
blow, upon which the policeman arrested him
for assaulting him In the execution OF Ills duty;
and, supporting the charge by his own testi-
moDy, the magistrate convicted the accused
gentleman, and sent him to prison for month
A body OF gentlemen who knew the unfortunate
party-1ncludtng q barrister OF eminence-
waited on the magistrate 10 entreat him to
reconsider his sentence but in vain, and the
sentence was suffered. 1t is manifest that the
magistrate, misled by the dangerous looseness
IN some enactment In the police act, mistOOk
the law, and too easily assumed that the police
man was justified 10 using force to compel
person to move on who was simply having q
conversation. 1t is obvious that the accused
ought to have been discharged, and the police
man punished and dismissed from the force
case occurred at the last asSiZes at Lewes
before Mr.. Justus Grove which will illustrate
the question. A young man sued policeman
Tor assault, and proved by several Witnesses
was merely talking with one or two companions
at the corner OF street when the policeman
suddenly came over and told him to 60 on, and
on his refusing seized him violently and pushed
him across the street and knocked him down,
and then took him into custody and dragged
him through the streets to the police station
ana iodged him In cell, where he was impris-
Sunday night until Monday morning, when he
was discharged by the magistrate. The con-
stable denied knocking the man down, but ad-
m1tted pushing him across the road and taking
him into custody; and although he alleged that
the man struck him, this he admitted was after
he had seized him and pushed him; and all he
could allege In justification was that the man
he could give no other definite description than
he was talking loudly with two of his friends.
Thus. therefore, the question came to this,
whether, II man be talking loudly to friend
q tn nox oFF
When desired TO do so, policeman may seize
him, push or drag him along, and II he ressts,
then drag him off to police station and place
MIN IN cell for day or night until he can be
brought before magistrate on such an utter
absence OF any legal charge as TO be at once dis
charged. For there Is nOt-aS the MAGISTRATES
common law as merely making disturbance
by talking loudly" And so they discharged TIE
man. But II he had committed no ofense then
he was entitled to make counter charge
made such charge In the action. The learned
Judge also very properly inquired whether
there was any police act In force In Brighton
mat could give peculiar powers to the police
there was none. He appears, however, to have
been under the impression that mere noise
without any idea Of breach Of the peace or
noisy talking Of friends-might amount to
preach OF the peace justifying the exercise of
force. Nor will any threat OF resistance to
LlLlocll, IL ucs WITHOUT que cause, threatens
the use OF force, amount to an ARRAY which
Will justify his arrest OF party for the ARRAY
must arise before he threatens or offers force;
and he cannot by his own menace of Illegal
violence provoke an ARRAY to justify an arrest.
for then 1t Is be himself who creates the breach
Of the peace by the threat of Illegal Violence
He has in such case no right to interfere at
all. Mere talking or singing does not at CON-
mon law constitute an offense or breach OF
the peace, and constable cannot arbitrarily
make 1t one by calling 1t q disturbance" I'm
less there Is an actual breach of the peace or
an ARRAY, there Is nothingsOf which the CON-
mon law takes cognizance- nothing which
Justffies constable's interference and If he in
terferes and the parties do not desist and he
then threatens force they may threaten re-
ststance, and If he uses force they may resist,
and If he suffers any violence unless excessively
1t is his own fault, and If he inflcts violence he
is himself civilly or cr1minally answerable, and
Ii he causes homicide he is guilty Of murder
while II the person he has assaulted causes
death (unintentfOnally and with no wicked ex-
cess) he is not guilty Of murder or even OF man.
slaughter, but 1t Is eXcuSable homicide.
CITY ITEMS.