Friesenhan v. Maines

Grant, J. (after stating the facts). There are 52 assignments of error. We will mention and dispose of those we deem of sufficient importance to discuss. 1. The court instructed the jury that the crime of seduction is a felony, and that, under the undisputed evidence, the arrest of the plaintiff by the defendant without a warrant was justifiable, and that the facts placed before defendant justified him in believing that plaintiff was guilty of the crime. That he was in fact guilty is established beyond controversy. The instruction was correct. Plaintiff, however, contends that, though the arrest was legal, the unlawful detention made defendant a trespasser ab initio. The rule invoked has no application to this case. That rule is applied to cases where the legal arrest is used as a cover to subsequent illegal conduct. There is no evidence in this case even tending to show that the arrest was made with any intent to detain plaintiff an unreasonable time, or to do him any other wrong. In such case the legality of the arrest is not tainted by the subsequent illegal detention. Taylor v. Jones, 42 N. H. 25; Page v. De Puy, 40 Ill. 506; Griel v. Hunter, 40 Ala. 542. 2. The court instructed the jury that the discharge of the plaintiff on habeas corpus proceedings was a-final [15] adjudication that the detention was illegal. Plaintiff’s counsel insist that it also was conclusive that the arrest was illegal. No testimony was taken upon that hearing. The petition of plaintiff’s father for the writ of habeas corpus averred that two justices of the peace had offices within 100 feet of the jail, and that plaintiff had been detained during that time without bail, and without being brought before a magistrate having authority to admit to bail. No claim is made in the petition that the arrest was illegal. The return of the defendant to the writ stated the circumstances of the arrest. It was also shown by parol evidence — no order of the circuit judge being found — that plaintiff was discharged from custody because he had been detained for an unreasonable length of time. It seems clear that, under these circumstances, the discharge was not and could not have been based upon the illegality of the arrest, and that plaintiff’s father did not ask for his discharge upon that ground. It follows that the instruction of the judge was correct. It was also competent to show the reason on which the discharge was based. 3. Plaintiff’s subsequent admission of guilt was admissible in mitigation of damages. 4. Error is assigned upon the refusal of the judge to instruct the jury to allow plaintiff as damages the cost of the habeas corpus proceedings, amounting to- $54.13. The request was properly refused. There was testimony that the plaintiff had no hand in bringing that suit; that it was brought by his father; and that he desired his marriage with the girl to end all litigation growing out of the affair, including this suit. The court instructed the jury that, if the attorneys were employed by plaintiff either expressly or impliedly, they should include those expenses in their verdict. The evidence justified the instruction. 5. Complaint is made that the attorney for the defendant, in his árgument to the jury, used language not justifiable by the record. The entire argument of the attorney is printed in the record. We find nothing in it to con [16] demn. A confessed seducer was asking damages because he was detained in jail two days without being brought before a magistrate. The occasion and the facts justified severe criticism. We find no error in the record, and the judgment is affirmed. The other Justices concurred.