Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1903-01-14
Judge Weaver Discusses Right
of Phillips and Brooks to
Defend Themselves.
METHOD OF MAKING ARRESTS
Question as to Whether the Actions of
Posse Which Sought Arrest of Pris-
oners, Could Be Considered an Assault
Thus Justifyins Defense Discussed
by the Supreme Court.

Special to Times Republican.
, Des Moines, Jan. 14.-In view Of TIN
! wide discussion which has been had il
the newspapers of the state relative
to the rulings of the supreme cour
of Iowa in the matter of the two con
demned men, Brooks and Phillips, from
Buena Vista county, and the SECOND
trial of the men now under way Al
lStorm Lake, the exact wording of the
tdecision will be of especial interest
None of the newspapers purported t.
give anything more than the briefes
summary Of what the court said. But
that portion of the decision, written
by Judge Weaver, in which was dis
|cussed in full the question of the right
of the prisoners to defend themselves
from what might have been considered
an unprovoked assault by a furious
tmob, is of more than ordinary inter-
4 est In this part OF the opinion is
laid down in very plain language the
law in Iowa in regard to making ar
rests and the method by which arrests
may be made and the rights of ar
rested persons or those about to be
larrested, whether guilty or innocent
something which evidently is very little
understood by the mass of people.
The opinion makes 1t plain that the
verdict Of guilty of first degree murder
was not warranted in the Buena Vista
county case. The closing portion of the
/ - 81, xl,S.
| ton, is as follows, the legal citations
being omitted:
THE legality Of the arrest or at
tempted arrest by the marshal and
his posse is deliberately argued by the
counsel and was the subject of several
paragraphs. of the courts charge to the
jury. The theory of the appellants Is
first that the marshal having no war
rant was without any authority to
make the arrest, and second that even
IL the authority existed IL was exercised
| in an unlawful manner and thereby
provoked the fight in which Sundblnd
was killed. A public officer may make
an arrest without warrant whenever
a public offense has been committed
and he has reasonable ground for be-
lieving that the person to be arrested
committed 1t. A private citizen may
exercise like authority when felony
has been committed. The question
whether a felony had been committed
and whether Iodine had reasonable
ground to believe the defendants to be
the guilty parties was for the jury.
We think it was sufficiently clear thnt
a felony had been committed by some
one. The defendants completely In
that crime is not open to doubt. The
marshal upon a somewhat uncertain
and fugitive rumor of such offense had
his suspicion directed to the men in
the waiting room of the station and
undertook their arrest.
Had 1t proved that no crime was
in fact committed or that the defen-
dants were wholly innocent thereof, 1t
would doubtless have been very diff
cult for him to defend an action for
damages for wrongful arrest. But SO
long as the rumored offense was ii;
fact committed and the parties arrested
were in fact guilty thereof the truth
when ascertained should be held suffi-
cient Justification of the act of the
officers. In other words IL an officer
makes an arrest upon insufficient in
formation, he acts at his peril and as
sumes that risk of being held in dam
ages to an innocent person thus injured,
but II felony has been committed and
the officer seizes the guilty party with
out undue violence he does no wrong.
In such case the information upon
which he acted is immaterial. 1t would
be an anomalous proposition to hold
an officer chargeable with wrong in:
~ ~,:-~ a
course that the arrest be made in
proper and lawful manner.
The manner in which the marshal
and his assistants undertook to seize
the defendants and Dolan presents
less clear question. The statute pro-
vides that a person making an arrest
must inform the person to be arrested
OF the intention to arrest him and
of the cause thereof and require him
TO submit to custody. No particular
form of words is prescribed but the
information is to be given to the per-
son accused and opportunity
given him to submit in an orderly
and peaceable manner, unless good rea-
son appear for the omission of such
duty. 1t is doubtless true that under
some circumstances, as when the ac-
cused person Is fleeing from the officer
or making active resistance, these for
malities need not be strictly observed.
That the marshaPs party acted in the
highest good faith as citizens desiring
to vindicate the law can not be nues-
toned and If the defendants knew or
as reasonable men should have known
that nothing but their arrest was
sought and no bodily harm was in
tended then they could not justify the
use of deadly weapons in resistance
even tho the arrest was unlawful.
ION the other hand If the posse, even
tho acting in good faith and with no
intention of violating the law suddenly
advanced upon the accused with loaded
guns presented in a threatening manner
thereby impressing the latter as rea-
sonable men with the belief that they
were about to suffer great bodily harm
or be placed at the mercy of an angry
mob, then they had the right to re-
sist and employ such force as was rea-
sonably adequate to defend themselves
against the attack without regard to
their guilt of the charge upon which
their arrest was sought. The language
Hands up! hands up!' or Hands up;
we want you!' emphasized with rifles
shotguns and revolvers, may Of course
be used with the idea that the party
thus addressed is required to submit to
arrest, but 1t must be admitted that to
the average mind 1T ordinarily conveys
a much more uncomfortable suggest
ion.
"The defendants tho charged with
-