Eldredge v. Mitchell

De Courcy, J. In this action for assault and battery the defendants pleaded in justification that they were police officers of the town of Hull, and that they used only such force as was necessary in making a lawful arrest of the plaintiff. There was a verdict for the plaintiff; and the case is here on three exceptions taken by the defendants. 1. The judge rightly instructed the jury that unless they found that the plaintiff was drunk at the time of the arrest, the defendants had shown no justification and there was no defense to the action for assault. The arrest was made without a warrant. The defendant Eugene Mitchell, who made the complaint against Eldredge for drunkenness and assault on an officer, testified that [483] he made the arrest for drunkenness and nothing else, and that the charge of assault was made for acts alleged to have been done while the officers were arresting him for drunkenness. Clearly, if Eldredge was not in fact drunk at the time, the arrest without a warrant and the assault in connection therewith were without justification in law and made the officers liable. 2. The instruction requested by the defendants was not applicable to the evidence in the case, which shows that the arrest was made for the offense of drunkenness. Furthermore, in the absence of any special statutory authority, they had no right to arrest without a warrant upon mere information that assaults had been committed by Eldredge on the day before; Commonwealth v. Carey, 12 Cush. 246; Commonwealth v. Ruggles, 6 Allen, 588; Scott v. Eldridge, 154 Mass. 25; and there-was nothing in the evidence to call for an instruction as to the right of a constable to arrest without a warrant for the purpose of preventing an imminent breach of the peace. It is needless to add that the judge could not properly instruct the jury, as the defendants requested, that the officers would be justified in arresting Eldredge on the ground that they believe that he was “a dangerous person to leave at large.” 3. The verification of the accuracy of the photograph rested with the judge, as an inquiry preliminary to its admission; and the question whether it would be of practical assistance to the jury must be determined by his sound discretion. McKarren v. Boston & Northern Street Railway, 194 Mass. 179. Exceptions overruled.