Roddy v. Finnegan

Stewart, J., delivered tlie opinion of tlie Court. Owen Finnegan sued Michael Roddy a police officer of Baltimore, in trespass vi et armis, for assault and battery. Roddy undertook to justify his acts as done in discharge of his official duty. One Curran had sold a wagon load of hay to Finnegan, and it had heen driven by a colored man to the street in front of Finnegan’s stable for delivery. Finnegan, Curran and the driver being there, Finnegan gave directions to put the hay in a window, opening into his stable-loft, and the team was driven hy the colored man, Curran’s driver, on the pavement to the window where the hay was being delivered from the wagon to the employees of Finnegan in the loft, when Roddy came up and made enquiry why the wagon and team were on the pavement in violation of' the Ordinance of the City. The Ordinance makes a party offending by driving on the pavement, liable to a fine. Finnegan having given direction as to the delivery of the hay, but Curran’s teamster having driven on the pavement, some question was .made on the trial below, as to Finnegan’s responsibility. Finnegan appearing as a witness for himself, gave his version of the occurrence, and when upon cross-examination had stated, “that he told Curran to put the hay in-at the window, and that a couple of colored men were employed by him -to put the hay in the counsel 'for Roddy proposed to ask him the following question : “When you pointed out to the witness Curran, the window through which you wished the hay put into the stable, and told him to put it in at that window) did you or did you not intend that the wagon and horses should be driven on the pavement, for the purpose of putting in the hay? ” Objection being made to the question, it was ruled to be inadmissible. This is the ground of the first exception. — 501 — If there was no other way in which the wagon could be got to the window except over the pavement, the conclusive inference to be deduced by Curran or his driver, from the order would be that Finnegan so intended; but no matter what he intended, the order was incapable of conferring authority upon Curran to violate the Ordinance. It is against the policy of the law to permit a party to authorize another to do an unlawful act; such authority can impose neither duty nor obligation as to either, but may involve both in punishment. Story on Agency, sec. 11. If the order of Finnegan in its inception was of unlawful tendency, and was carried into effect by Curran in the violation of the Ordinance ; both Finnegan, the author, and Curran, who executed it, were offenders. Assuming the order to have been of doubtful character, it was competent to prove by Finnegan that when he gave it, he intended or contemplated a violation of the Ordinance, by its execution through Curran ; or that it was to be carried into effect non obstante the Ordinance ; for the purpose of showing his illegal complicity with Curran, in the transaction ; or that such was not his intention, as the case might be. That the order in reference to any legal responsibility for its character, depended upon its design, legal or otherwise, there can be no doubt. If intended for mischief, and such was its result, the legal and logical responsibility therefor to that extent, attached to its author. |( The enquiry into the intention of Finnegan is relevant to a proper comprehension of the nature and import of the order. If he is reliable he can give bettor testimony than inferential. In criminal cases the guilty intention of a party committing an illegal act is implied from his conduct; and he is not permitted upon principles of public policy to give evidence of a different intention, although he may rebutt the same by other evidence. In fact he is not — 502 — allowed to be a witness in his own case. Upon the inference from his own acts alone, his conviction of the offence may be founded, but he may in truth be innocent. In such case for the reasons stated, under the rule of his exclusion, the conduct of the accused, from which his guilt has been inferred, is the best evidence. In a civil proceeding growing out of an alleged criminal act of one of the parties, where he is allowed by law to testify, there is no such reason operating as in criminal cases to exclude his testimony, as to his intentions connected with the commission of an act by himself, or by another, under his direction. On the contrary, the policy is- to relieve the witness of restrictions growing out of his interest, and to allow fuller latitude in the discovery of truth. The witness ordinarily has the privilege of declining to answer a question, that might subject- him to criminal prosecution ; but this he can waive. It is the privilege of the witness not of the party. Where he is both paidy, and witness for himself, he must be held on his cross-examination as waiving the privilege, as to any matter about which he has given testimony-in-chief. Having testified to a part of the transaction in which he was concerned, he is bound to state the whole. See Roscoe Crim. Evi., 149, note C. No difficulty therefore exists on account of this privilege, to exclude the question, nor was it interposed as an objection. There was error in excluding the question in this exception. If objection had been made, it is questionable if the testimony proposed to be' rebutted, in the second exception, was admissible for the purpose of proving malice on the part of Roddy. If Finnegan and his employees had been frequently arrested by Roddy, that would not show malice without further proof that the arrests were without foundation. Repeated arrests by an officer would not, per se. show malice. — 503 — A multiplicity of cases against Finnegan would only show he was a persistent offender, and sharp vigilance on the part of the officer. No testimony had been offered by Finnegan which required to be rebutted. The testimony proposed as rebutting, was, therefore, irrelevant. As original testimony it was not admissible, being the mere declarations of third persons. If the jury found the facts as stated in the appellant’s first, second, sixth, eighth and ninth prayers, in substance that Finnegan gave the order for the delivery of the hay at the window, and that it could not be delivered without driving on the pavement, or that he intended the wagon to be driven over the'pavement, and Curran so understood the order ; or that Finnegan stood by and made no objections thereto, but acquiesced as done in pursuance of his direction, lie was guilty of a violation of the Ordinance, and Roddy was justifiable in his arrest, if he used no more force than was necessary to make the arrest and detention for hearing, effectual. If Curran’s driver, under his direction, drove over the pavement, he was an offender, and Finnegan’s order could not relieve him from the consequences. Finnegan’s order would have been harmless without the execution of it. If Curran was guilty, that did not exonerate Finnegan for having given the order, if he knew its execution was impracticable without going over the pavement, or standing by and seeing the wagon driven on the pavement; and the hay delivered to his employees without objection ; such conduct on the part of Finnegan made him an offender, and guilty of the violation of the Ordinance. Whether he was the most active offender or not is immaterial. Both parties, Curran and Finnegan being present, contributing to the commission of the offence, were liable as principal offenders. By the common law, in all offences below felony, there can be no accessories. In misdemeanor all are principals, — 504 — and there are no accessories in the technical Sense of that term. Roscoe’s Crim. Evi., (7 Ed.,) 178, 185; 1 Starkie Crim. Plead., (2nd Ed.,) 81; 1 Stark. Crim. Law, secs. 622, 629, quoted in 2nd Ed. of 2 Bishop on Crim. Proceed. All advisers, contrivers and procurers are equally'principals, with those who commit the offence, though they be absent at the time of its commission. In misdemeanor the act may be charged as done by the principal himself, without reference to the agent. 1 Wharton Crim. Law, sec. 152. A participation in the act committed, in any way, makes the party liable as principal. Anything in the.conduct of a mere bystander, evincirig a design to encourage, incite, approve of, or in some manner affording aid or consent to the act, will render him liable as a principal, in a misdemeanor, and it is not necessary to prove the party actually aided in the commission of the offence. 1 Wharton’s Crim. Law, sec. 116. * Finding the parties in the act of violating the Ordinance, Roddy was not only justified in making the arrest and detention of the offenders for hearing, but his duty required him to do so, upon his responsibility as a police officer, without obtaining a warrant from any other quarter. The consequent delay in the procurement of a warrant, might have enabled the parties to make their escape— such narrow construction of his duty would be unreasonable, and is utterly unwari’anted. The Board of Police Commissioners, and the police officers appointed by their authority, are State officers ; but they exercise the police power of the city, and it is their duty to enforce all the laws and ordinances of the city, which . can be enforced by the police. They have the power to prevent the commission of criine, and to arrest ’and detain offenders for hearing, without warrant, wherever other police officers can do so by the common law, that is, where the offence whether by the common law, by statute, — 505 — ordinances of the city, or police regulation, is committed within their view, it is their duty to do so. Mayor & City Council of Baltimore vs. Howard, 15 Md., 376; Altvater vs. Mayor & City Council of Balt., 31 Md., 462; Mitchell vs. Lemon, 34 Md., 176. The appellant’s first, second, sixth, eighth and ninth prayers ought to have been granted. Nis third prayer was properly rejected. The other transactions referred to therein, could not be used for the purpose ol' showing the intention of the appellee in the matter in question. The appellee’s prayer was calculated to mislead the jury by its selection and collocation of specific items of testimony prominently detailed, totally ignoring other material facts. The consideration of all the facts, however minute, might have established a conclusion inconsistent with the theory of that prayer. Walsh vs. Taylor, 39 Md., 592. But another conclusive objection to the prajmr was, that it contained instructions in conflict with the theory of the appellant’s prayers which we have stated, ought to have been granted. There was error in the allowance of the prayer. The proviso to this prayer, and the fourth, fifth and seventh prayers of the appellant, which were granted, very correctly stated the law upon another branch of the defence. If Finnegan had not been concerned in the violation of the ordinance, yet, if when Roddy was enquiring into the circumstances, to enable hitn to ascertain the offending party, Finnegan obstructed him in the discharge of his duty ; such conduct was unlawful, and justified Roddy in arresting him. The fact that Finnegan was under the influence of liquor, afforded no excuse for such conduct. Police officers, like other officers of the law, are not to be maltreated in the faithful discharge of duty, free from — 506 — malice, ill-will,-oppression, or the use of unnecessary force, but are entitled to aid and assistance. (Decided 21st January, 1876.) If they fail in the performance of duty, or their conduct proceeds from a spirit of oppression or annoyance, they place themselves beyond the immunity afforded by the law, and become offenders themselves, and are liable to the severest penalties. ■With reference to such indemnity and peril, their conduct must be considered. Judgment reversed, and new trial ordered.