Stittgen v. Rundle

Bardeen, J. Some twenty different exceptions were taken to the charge of the court at the trial, but the only ones relied on by appellant are printed in his brief as follows: “ A constable or police officer is a conservator of the peace, and has the right to arrest persons for a breach of the peace committed in his view, but he has no right to arrest one who has committed a breach of the peace concerning which he (the officer) has merely the information of third persons, and which was not committed in his view.” “ So, in this case, I instruct you that the evidence is uncontradicted that the arrest of the plaintiff in this action by the officer was without due process. I instruct you, therefore, that the 80 plaintiff is en titled to recover damages against the defendant Officer G-leason, because there is no pretense that he arrested this plaintiff for an offense, breach of the peace, or disorderly conduct committed within view of the officer who made the arrest.” This is supposed to be bad law, because it is said to be contrary to an ordinance of the city of Milwaukee regulating the conduct of and granting authority to policemen of that city in cases of misdemeanors. The ordinance was not mentioned in the pleadings or introduced in evidence, and first makes its appearance in the case when printed in appellant’s brief. The obligations of courts are sufficiently burdensome when they are required to take cognizance of all acts creating and granting powers to municipal corporations. They have uniformly refused to take notice of the acts and ordinance of such bodies except upon due proof. Jones, Ev. § 117; Pettit v. May, 34 Wis. 666, 674; Cox v. St. Louis, 11 Mo. 431. And the introduction of such an ordinance in evidence when not pleaded, against proper objection, is error. Horn v. C. & N. W. R. Co. 38 Wis. 463. There is no pretense or claim that respondent, at the time of his arrest, was doing any act that would justify his being taken into custody. The act complained of had been committed some twenty or thirty minutes previous to the arrest, and not in the presence of the officer who made the arrest. An arrest without warrant has never been lawful except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches ■of the peace committed in the presence of the officer. 2 Am. & Eng. Enoy. of Law (2d ed.), 869; In re Way, 41 Mich. 299, 304. The charge of the court seems clearly within the lines above indicated. By the Court.— The judgment of the superior court of Milwaukee county is affirmed.