Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-30

ficer, and that under the stipulation
and admission the arrest of George
Meyers, under the circumstances was
an unlawful arrest. In addition TO
the instruction, objected to, the court
upon this point instructed the jury as
follows:
Peace officers must obey the law
describing the limits Of their author
ity. They have no right to make ar
bitrary arres-5 not sanctioned by
law, and II a peace officer makes an
unlawful arrest without cause, his
official character as a peace officer
will not protect him further than
that If an arrest is made by a known
officer and nothing is to be reasona-
bly, apprehended beyond a mere tenn
pOrary detention in Jail, resistance
cannot lawfully be carried to the eX-
tent of taking life. If the defendant
was in a place where he had a right
to be, and was not disturbing the
peace, or otherwise violating the law,
Eckhart would have no right, with
out warrant to arrest him or eject
him from the place. An arrest un-
der such circumstances would be an
unlawful arrest. An unlawful arrest
made by even a peace officer without
warrant or other authority of law
would amount at least to an assault
upon the person arrested, which such
person would have right to resist
under the law of self-defense, the
same as an assault by any individual
not a peace officer"
1t would seem that the purpose of
the first part of the instruction OBJ
jected to was to advise the jury that
the policeman was a peace officer. To
comply with the contention of cOun-
sci 1t would be only necessary to
change this to, "Eckhart, being a po-
liceman in the city of Salem, he was
therefore a peace officer" We think
the instruction given was in effect as
contended it should be by counsel.
In the latter part of the instruction
the language is, being a policeman. 4"
The charge should be considered as
whole. The burden of the objection.
however, appears to be that the court
Talled to instruct the jury that the
arrest of George Meyers, under the
circumstances, was unlawful, as
shown by the stipulation above quot
ed, from an examination of which it
Will be seen that it Was admitted
that Eckhart was an officer of the
city of Salem; that he ned no war
rant for the arr Z OF C,scndent, or
any orders fro |"on aycept Ar
thur Meyers. 1t does not, however.
in our opinion, go to the extent of
admitting that the arrest of defen-
dant was an unlawful arrest, as de-
scribed by the court in its instruc
lions, to which no exception was
taken, but leaves this to the Jury.
The stipulation does not extend to
the conduct of defendant in the pres
ehce or the officer, 1t is true there
may be no evidence tending to show
that defendant was violating any law
or ordinance, except the indirect or
clrcumstantial evidence We do NOT
thlnk the court was required to in
struct the jury as to whether or not
there was really any cause or neces-
sity for defendants arrest by the no.
lice officer. The court could not 90
to the extent of instruction the iurv
that the arrest was an unlawful one
without going beyond the facts as
stipulated. The instructions given
upon this point were fair and favora-
Bile to the defendant, and taken as a
whole we find no reversible error
therein.
The defendant has had the benefit
~ two trials, and finding no error in
the record, the judgment of the lower
court must be affirmed, and it is so
ordered.
Mr., Justice Burnett, having once
tried the case in the lower court,
took no part in this opinion.