Monthly Archives: May 2011

People v. Parker 374 Ill. 524, 30 N.E.2d 11

Supreme Court of Illinois.

PEOPLE

v.

PARKER.

No. 25595.

Oct. 11, 1940.

Rehearing Denied Dec. 4, 1940.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Harrison Parker was adjudged guilty of criminal contempt, and he brings error.

Judgment affirmed.

West Headnotes

[1] Grand Jury 193 33

193 Grand Jury

193k33 k. Conduct of Proceedings in General. Most Cited Cases

A citizen should not be permitted to communicate with a grand jury, but, if he possesses any information justifying the accusation of anyone, he should impart the information to the State’s attorney, and, if the State’s attorney refuses to act, the citizen can make his complaint to a committing magistrate.

[2] Contempt 93 14

93 Contempt

93I Acts or Conduct Constituting Contempt of Court

93k14 k. Misconduct of or Affecting Jury. Most Cited Cases

The sending to a grand jury by a citizen of letters, charging that newspaper and certain individuals had entered into a criminal conspiracy to defraud the state of revenue by illegal omission of personalty from tax rolls, constituted a “criminal contempt” on the part of the citizen, though the state’s attorney was one of those against whom the charges were made, and though the charges made did not concern matters then pending before the grand jury.

[3] Grand Jury 193 33

193 Grand Jury

193k33 k. Conduct of Proceedings in General. Most Cited Cases

The rule forbidding communications by a citizen to a grand jury is not limited to cases then pending before the grand jury.

[4] Contempt 93 54(4)

93 Contempt

93II Power to Punish, and Proceedings Therefor

93k54 Preliminary Affidavit or Information

93k54(4) k. Sufficiency. Most Cited Cases

An information charging a citizen with writing two letters to members of a grand jury, and incorporating the letters which on their face showed that the citizen was in contempt of court, was sufficient to charge contempt of court.

[5] Contempt 93 58(4)

93 Contempt

93II Power to Punish, and Proceedings Therefor

93k58 Plea, Answer, or Counter Affidavit

93k58(4) k. Disclaimer of Intention to Commit Contempt. Most Cited Cases

Where citizen was charged by information with writing to a grand jury letters which showed on their face that the citizen was in contempt of court, and the citizen’s sworn answer admitted the writing of the letters and merely denied an intention of being contemptuous, the answer did not entitle the citizen to an acquittal.

[6] Contempt 93 58(4)

93 Contempt

93II Power to Punish, and Proceedings Therefor

93k58 Plea, Answer, or Counter Affidavit

93k58(4) k. Disclaimer of Intention to Commit Contempt. Most Cited Cases

Judgment holding individual, who communicated with the grand jury guilty of contempt, would not be reversed on ground that there was no malevolent intention to impede, embarrass, or obstruct the administration of justice, since a disavowal or denial, under oath, of intent to insult a court or to slander or deter the grand jury in its duty, should be considered by the court only in mitigation of the offense, and not as a complete justification.

*525 **12 Irving Breakstone, of Chicago, for plaintiff in error.

John E. Cassidy, Atty. Gen., Thomas J. Courtney, State’s Atty., of Chicago, and A. B. Dennis, of Springfield (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Blair L. Varnes, all of Chicago, of counsel), for defendant in error.

JONES, Chief Justice.

Harrison Parker was adjudged guilty of criminal contempt in the criminal court of Cook county, and sentenced to imprisonment in jail for a period of ten days. He has sued out a writ of error, arguing, among other things, that by the judgment of conviction he has been deprived of his constitutional right of free speech.

The information charged Parker with writing two letters to the members of the Cook county grand jury, which was then in session. The letters are set forth in the information. Parker’s answer, filed after his motion to dismiss was overruled, admitted writing the letters, but denied they constituted contempt of court or that they were written with the intention of showing contempt.

The letters are quite lengthy and are couched in exceedingly vicious and inflammatory language. They state, in substance, that The Chicago Tribune, a newspaper, Robert R. McCormick, its president, Thomas J. Courtney, State’s *526 attorney of Cook county, John S. Clark, the Cook county assessor, and a firm of attorneys which represented The Chicago Tribune, had entered into a criminal conspiracy to defraud the State of Illinois of revenue by the illegal omission from the Cook county tax rolls of personal property of The Chicago Tribune. In the first letter Parker charged The Chicago Tribune had already ‘stolen’ from the State approximately forty-three million dollars. In the second letter the amount was stated to be one-hundred million dollars. The letters also charged the above parties, or some of them, with perjury, subornation of perjury, bribery, malfeasance in office, and specifically charged The Chicago Tribune with ‘influencing, intimidating or bribing the courts to prevent a trial on the law and the facts’ and with ‘giving orders’ to the courts. One of the letters states that McCormick, ‘under whose directions this enormous steal has been effected, is a coward, a liar, a cheat, a thief, a court-fixer and an all-around scoundrel who, after he has cunningly robbed the State that shelters and protects him, will pollute the Channels of Justice to hide his thefts.’ Parker also charged McCormick with having ‘railroaded’ two innocent men to prison and with having cheated the State out of every penny of inheritance tax due from the estate of his mother. He stated that Courtney had refused to prosecute the crimes because of his own complicity in them. He also compared Courtney with a State’s attorney in Los Angeles, California, who ‘was playing fast and loose with the organized thieves of Los Angeles’ and who was indicted by an alert and law-respecting grand jury, tried and convicted. He also referred to the corruption which had been prosecuted in New York, Connecticut, Kansas City and Louisiana. Parker stated three attempts had been made to murder him, but neither the allurements of fortune nor the terrors of death could deter him from doing his duty. He offered to appear before the grand jury and present legal proof of the **13 charges with reference to the conspiracy, ‘which *527 is mildly described above,’ to rob the homeowners of Cook county. He also warned the grand jury that great pressure would be brought to bear upon it to ignore his letters.

The position of the People is that defendant was in contempt of court for voluntarily communicating with the grand jury at all, and that, in any event, it was a contempt of court to address the grand jury in a manner so as to leave the grand jurors’ minds in such a state that they could not fairly and without prejudice investigate the charges made. Defendant contends any citizen has the right, without any previous authorization, to communicate in writing to the grand jury, informing it of evidence of crime in his possession which he offers to produce before the grand jury, on a subject not then before it for consideration, and charging that the State’s attorney refuses to bring the evidence before it because of his own complicity in the crime. He also contends his motive was praiseworthy; that he did not intend to be contemptuous or seek to influence the action of the grand jury but to give it information, if desired, and that the language of the letters is calculated to aid, rather than impede, the action of the grand jury in the performance of its duties. The criminal court found Parker guilty of ‘acts and conduct directly calculated to impede, embarrass and obstruct the court in the due administration of justice.’

There is no authority in this State as to when a communication to a grand jury is a contempt of court. In Storey v. People, 79 Ill. 45, 22 Am.Rep. 158, the defendant was tried for contempt of court in publishing articles censuring the grand jury and questioning its integrity in returning three indictments against defendant. We held that they were not a contempt of court, though libelous, since the publications did not concern matters then pending before the grand jury, but were about completed acts and concerned matters on which the grand jury had already discharged its duty. We laid down as the test of when a publication concerning *528 a grand jury was a contempt of court whether the articles had a tendency to directly impede, embarrass or obstruct the grand jury in the discharge of any of its duties remaining to be discharged after the publications were made.

The authorities in other jurisdictions cannot be harmonized. Some courts hold that a stranger has a right voluntarily to bring facts to the knowledge of the grand jury, In re Lester, 77 Ga. 143; State v. Stewart, 45 La.Ann. 1164, 14 So. 143. On the other hand, Wharton, in his treatise on Criminal Practice and Pleading, eighth edition, section 307, states: ‘Sending an unofficial volunteer communication to the grand jury, inviting them to start, on their own authority, a prosecution, is a contempt of court, and a misdemeanor at common law.’ To this same effect is Commonwealth v. Crans, 2 Pa.L.J. 172.

Mr. Justice Field announced the same rule in his charge to the Federal grand jury, (30 Fed.Cas. pages 992, 994, No. 18,255) which is frequently quoted. He charged: ‘You will not allow private prosecutors to intrude themselves into your presence, and present accusations. Generally such parties are actuated by a private enmity, and seek merely the grantification of their personal malice. If they possess any information justifying the accusation of the person against whom they complain, they should impart it to the district attorney, who will seldom fail to act in a proper case. But if the district attorney should refuse to act, they can make their complaint to a committing magistrate, before whom the matter can be investigated, and if sufficient evidence be produced of the commission of a public offense by the accused, he can be held to bail to answer to the action of the grand jury.’

Mr. Justice Field is also quoted by Wharton on Criminal Procedure, tenth edition, section 1295, as follows: ‘There has hardly been a session of the grand jury of this court for years at which instances have not occurred of personal solicitation to some of its members to obtain or *529 prevent the presentment or indictment of parties. And communications to that end have frequently been addressed to the grand jury filled with malignant and scandalous imputations upon the conduct and acts of those against whom the writers entertain hostility, and against the conduct and acts of former and present officers of this court and of previous grand juries of this district. All such communications were calculated to prevent and obstruct the due administration of justice, and to bring the proceedings of the grand jury into contempt. ‘Let any reflecting man’, says a distinguished judge, ‘be he layman or lawyer, consider of the consequences which would follow, if every individual could, at his pleasure, throw his malice or his prejudice into the grand jury room, and he will, of necessity, conclude that the rule **14 of law which forbids all communication with grand juries, engaged in criminal investigations, except through the public instructions of courts and the testimony of sworn witnesses, is a rule of safety to the community. What value could be attached to the doings of a tribunal so to be approached and influenced? How long would a body, so exposed to be misled and abused, be recognized by freemen as among the chosen ministers of liberty and security? The recognition of such a mode of reaching grand juries would introduce a flood of evils, disastrous to the purity of the administraction of justice, and subversive of all public confidence in the action of these bodies.’’

[1][2] We think the reasoning of Mr. Justice Field is sound and that he announced a wise principle of law. The letters written by defendant, Parker, are a glaring example of the evil against which that rule is directed. They are replete with mailgnant accusations against private citizens and public officials and are, in all probability, the result of personal enmity. Couched in the language they are, they could serve no useful purpose. Rather they expose the grand jury to the danger of being misled and abused by one motivated *530 by personal animosity. If such communications with the grand jury were permitted and had their desired effect, many innocent people would be indicted solely because of personal enmity or the malice of one seeking revenge.

[3] It cannot seriously be argued that defendant, by these letters, was not seeking to influence the action of the grand jury. We cannot agree that the rule forbidding such communications should be limited to cases pending before the grand jury.

[4][5] Defendant also contends the information is insufficient to charge a contempt of court. It incorporates the letters written by Parker and they show on their face that the writer is in contempt of court. Nor is defendant entitled to an acquittal upon his sworn answer, under the rule announced in People v. Seymour, 272 Ill. 295, 111 N.E. 1008. Here the answer admits the writing of the letters and merely denies an intention of being contemptuous. Such an answer does not entitle him to an acquittal.

[6] Defendant contends the judgment should be reversed because there was no malevolent intention to impede, embarrass or obstruct the administration of justice. This contention is based on Parker’s statement in his answer denying such an intention. A disavowal, or denial under oath, of intent to insult the court or to slander or deter the grand jury in its duty, should be considered by the court in mitigation of the offense, but it cannot be considered as a complete justification. People v. Serveringhaus, 313 Ill. 456, 145 N.E. 220. It is not claimed this part of the answer was not considered by the court in mitigation of the offense. The contention cannot be sustained.

The judgment is affirmed.

Judgment affirmed.

Ill. 1940

People v. Parker

374 Ill. 524, 30 N.E.2d 11

END OF DOCUMENT

Date of Printing: Jul 31, 2010

KEYCITE

People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (Ill.,Oct 11, 1940) (NO. 25595)

History
Direct History
=> 1 People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (Ill. Oct 11, 1940) (NO. 25595)
Certiorari Denied by
2 Parker v. People of State of Illinois, 313 U.S. 560, 61 S.Ct. 836, 85 L.Ed. 1520 (U.S.Ill. Apr 07, 1941) (NO. 804)
Negative Citing References (U.S.A.)
Disagreed With by
3 In re Grand Jury Appearance Request of Loigman, 370 N.J.Super. 406, 851 A.2d 671 (N.J.Super.A.D. Jun 29, 2004) (NO. A-5546-02T2)
Distinguished by
4 Brack v. Wells, 184 Md. 86, 40 A.2d 319, 156 A.L.R. 324 (Md. Nov 01, 1944) (NO. 17)

Date of Printing: Jul 31, 2010

KEYCITE

People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (Ill., Oct 11, 1940) (NO. 25595)

Date of Printing: Jul 31, 2010

KEYCITE

People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (Ill. Oct 11, 1940) (NO. 25595)

Citing References
Negative Cases (U.S.A.)
Disagreed With by
1 In re Grand Jury Appearance Request of Loigman, 851 A.2d 671, 673, 370 N.J.Super. 406, 410 (N.J.Super.A.D. Jun 29, 2004) (NO. A-5546-02T2)
Distinguished by
2 Brack v. Wells, 40 A.2d 319, 322, 184 Md. 86, 93, 156 A.L.R. 324, 324 (Md. Nov 01, 1944) (NO. 17)
Positive Cases (U.S.A.)
Examined
3 In re New Haven Grand Jury, 604 F.Supp. 453, 458+ (D.Conn. Feb 21, 1985) (NO. MISC. CIV. 85-11, MISC. CIV. H 83-62) HN: 2,6 (N.E.2d)
Discussed
4 People v. Sears, 273 N.E.2d 380, 388+, 49 Ill.2d 14, 29+, 52 A.L.R.3d 1300, 1300+ (Ill. Jun 23, 1971) (NO. 44287, 44288, 44299, 44348) HN: 1,2,6 (N.E.2d)
5 People v. Doss, 46 N.E.2d 984, 988+, 382 Ill. 307, 312+ (Ill. Jan 21, 1943) (NO. 26862) HN: 2,6 (N.E.2d)
Cited
6 People v. Javaras, 281 N.E.2d 670, 673, 51 Ill.2d 296, 301 (Ill. Mar 30, 1972) (NO. 44030)
7 People v. Parker, 74 N.E.2d 523, 525+, 397 Ill. 305, 307+ (Ill. May 22, 1947) (NO. 29894) HN: 3 (N.E.2d)
8 Piracci v. State, 115 A.2d 262, 268, 207 Md. 499, 514 (Md. Jun 22, 1955) (NO. 162, 163) HN: 1 (N.E.2d)
9 In re Grand Jury Appearance Request by Loigman, 870 A.2d 249, 256, 183 N.J. 133, 145 (N.J. Apr 11, 2005) (NO. A-51 SEPT.TERM2004) ” HN: 2 (N.E.2d)
Mentioned
10 People v. Bennett, 281 N.E.2d 664, 667, 51 Ill.2d 282, 287 (Ill. Mar 30, 1972) (NO. 43514)
11 People v. Ryan, 104 N.E.2d 821, 823, 412 Ill. 54, 58 (Ill. Mar 20, 1952) (NO. 32237) HN: 5 (N.E.2d)
12 Petition of Thomas, 434 A.2d 503, 507, 24 A.L.R.4th 306, 306 (Me. Sep 04, 1981) HN: 2 (N.E.2d)
Secondary Sources (U.S.A.)
13 Individual’s right to present complaint or evidence of criminal offense to grand jury, 24 A.L.R.4th 316 (1983) HN: 1,2,3,4,6 (N.E.2d)
14 Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney, 66 A.L.R.3d 732 (1975)
15 Communicating with grand jury as contempt, 29 A.L.R. 489 (1924)
16 Criminal Procedure, Second Edition s 15.2(B), Control over proof (2009) HN: 2 (N.E.2d)
17 Criminal Procedure, Second Edition s 8.4(B), Independent investigative authority (2009)
18 Grand Jury Law and Practice s 4:19, Right to testify or present evidence (2010)
19 Am. Jur. 2d Grand Jury s 39, Generally (2010) HN: 6 (N.E.2d)
20 CJS Grand Juries s 114, Access to grand jury by private complainant (2010) HN: 1 (N.E.2d)
21 Illinois Law and Practice Contempt s 21, Misconduct of, or affecting, jury (2010) HN: 2 (N.E.2d)
22 Illinois Law and Practice Contempt s 50, Pleading indirect contempt (2010)
23 Illinois Law and Practice Contempt s 54, Answer–Sufficiency (2010) HN: 5,6 (N.E.2d)
24 Illinois Law and Practice Juries s 73, Liability for interference with grand jury (2010) HN: 1,3,6 (N.E.2d)
25 REGULATION AND CONTROL OF EX PARTE COMMUNICATIONS WITH ADMINISTRATIVE AGENCIES, 76 Harv. L. Rev. 233, 274+ (1962) HN: 2 (N.E.2d)
26 RODNEY KING AND THE DECRIMINALIZATION OF POLICE BRUTALITY IN AMERICA: DIRECT AND JUDICIAL ACCESS TO THE GRAND JURY AS REMEDIES FOR VICTIMS OF POLICE BRUTALITY WHEN THE PROSECUTOR DECLINES TO PROSECUTE, 53 Md. L. Rev. 271, 357+ (1994) HN: 2,4 (N.E.2d)
27 PRIVATE PROSECUTION: A REMEDY FOR DISTRICT ATTORNEYS’ UNWARRANTED INACTION, 65 Yale L.J. 209, 234 (1955) HN: 1 (N.E.2d)
Court Documents
Appellate Court Documents (U.S.A.)
Appellate Petitions, Motions and Filings
28 Nally v. Members of the Bartow County Grand Jury, April 2005 Term, 2006 WL 2569805, *2569805 (Appellate Petition, Motion and Filing) (U.S. Aug 26, 2006) Petition for Writ of Certiorari (NO. 06-312) HN: 2 (N.E.2d)
Appellate Briefs
29 Wood v. Georgia, 1962 WL 115357, *115357+ (Appellate Brief) (U.S. Mar 15, 1962) Brief for Respondent. (NO. 369) HN: 2,6 (N.E.2d)
30 Parker v. People of the State of Illinois, 1948 WL 47532, *47532+ (Appellate Brief) (U.S. Feb 04, 1948) Brief of the People of the State of Illinois, Respondent. (NO. 428) HN: 2,6 (N.E.2d)
31 In the Matter of the Grand Jury Appearance Request By Larry S. LOIGMAN, Esq., 2001 WL 36095126, *36095126+ (Appellate Brief) (N.J. Dec 30, 2001) Brief on Behalf of County Prosecutors Association Amicus Curiae (NO. 56621) ” HN: 1 (N.E.2d)

ANDREW J. KINDRED v. JOSEPH STITT et al. 51 Ill. 401, 1869 WL 5352 (Ill.)

Supreme Court of Illinois.

ANDREW J. KINDRED

v.

JOSEPH STITT et al.

September Term, 1869.

West Headnotes

Arrest 35 64

35 Arrest

35II On Criminal Charges

35k64 k. Private Persons, Arrest Without Warrant. Most Cited Cases

A private person has no right to arrest another on mere suspicion that he has been guilty of a crime.

Arrest 35 66

35 Arrest

35II On Criminal Charges

35k66 k. Place of Arrest or Stop. Most Cited Cases

The fact that a person is police constable in a county gives him no authority to make an arrest without a warrant in another county.

False Imprisonment 168 29

168 False Imprisonment

168I Civil Liability

168I(B) Actions

168k21 Evidence

168k29 k. Aggravation of Damages. Most Cited Cases

In an action for false imprisonment, it is proper for the plaintiff to show what occurred after the arrest, his transportation to another county and confinement in a filthy cell, and his discharge without examination, as bearing upon the question of damages.

*1 APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was an action of trespass, for an assault and false imprisonment, brought in the court below by Andrew J. Kindred against Stitt, Blair and Towers.

It appears from the evidence that prior to the 5th of Octotober, 1867, several burglaries, and other crimes, had been committed in Woodford county, in this State, and that the plaintiff, Kindred, was suspected of being one of the guilty parties. Accordingly, on the 5th of October, the defendants, Stitt and Blair, citizens of Woodford county, and Towers, a police constable and detective, residing in Peoria county, placed handcuffs upon him and conveyed him to Peoria county, where he was placed in jail, in a filthy cell, and detained there for a period of three days, when he was discharged without an examination, and without having been taken before a magistrate for that purpose. Neither of the parties who participated in the arrest had any warrant therefor.

It seems that the detective, Towers, had been informed, by telegraph, by a citizen of Woodford county, that some horses had been stolen near Eureka, in that county, and upon coming to Eureka, Towers was informed by some of the citizens of the various other crimes which had been committed in the neighborhood, and was employed by them to ferret out the guilty parties. Towers testified that he had been informed that the plaintiff kept company with Chambers, Moss and Mishler–persons of bad character–Chambers and Mishler being supposed to be thieves, and Moss being in the habit of gambling and drinking. It was also proven by several witnesses that a few days before the burglaries were committed, on a Sunday, the plaintiff was seen in Cruger, a place about two miles from Eureka, in company with his brother William, (who was also a suspected character,) and Chambers and Mishner. Evidence was also adduced showing that the plaintiff had a bad character by report.

These were the principal facts relied upon as showing probable cause for the arrest of the plaintiff.

The jury returned a verdict for the defendants, and judgment was entered accordingly. The plaintiff thereupon, appealed, and assigns for error that the verdict was contrary to the law and evidence.

Messrs. HARPER & CASSELL, Messrs. INGERSOLL & MCCUNE, and Mr. S. D. PUTERBAUGH, for the appellant, insisted that the arrest was illegal; that under our statute an officer is not authorized to make an arrest out of his proper county without a warrant, and that in this case there was no reasonable ground of suspicion to justify any of the defendants. Counsel also contended that even if all the defendants had authority to make the arrest, it could only be for the purpose of taking the accused before a magistrate for examination. Citing Dodds et al. v. Bowen, 43 Ill. 95.

Messrs. BURNS & BARNES, for the appellees Stitt and Blair.

*2 An action will not lie against a peace officer for arresting a person, bona fide, on a charge of felony, without warrant, though it turn out that no felony was committed. So when one is suspected of receiving stolen goods, he may be so detained without warrant to answer to the charge, and the party arrested may be taken to prison till he can be put upon his examination, without first taking him before a magistrate. 1 Hilliard on Torts, 235; Samuel v. Payne, 1 Doug. 359; Rohan v. Swaine, 5 Cush. 281;Davis v. Russell, 2 Moore & Payne, 590; 3 Eng. Com. Law 190; 9 do 688; 12 do 735; 13 do 287; 15 do 618.

An officer may act upon information, not under oath, of his neighbors in whom he has confidence, and if he acts with the belief that the arrest is necessary and detains the felon a reasonable time for the purposes of fair investigation as to the charge, he is not liable for false imprisonment, and it is for the officer to judge of the necessity of an immediate arrest to prevent escape, and for the jury alone to say whether he had cause to suspect the party charged, guilty, and if he act in good faith he is not chargeable, whether the party arrested turn out to be guilty on examination or not. Rohan v. Swaine, 5 Cushing, 281; 1 Hale’s P. C. 587; Dane’s Abrid. 588; Bacon’s Ab. Constable (C.;) Samuel v. Payne, 1 Doug. 359;Beckworth v. Philby, 6 Barn. & Cress. 635.

The officer may, after arrest, discharge the prisoner without taking him before a magistrate. McClougan v. Clayton and Reding, 3 English Com. Law 190; 24 do 673.

Proof of reasonable suspicion of felony where a private person imprisons, goes in mitigation of damages, and where such person acts in good faith, nominal damages only should be allowed. 12 English Com. Law, 617.

Mr. JOHN CLARK, for the same appellees, in addition, cited 2 Hale’s Pleas of the Crown, 76, 80; 1 Russ on Crimes, 593, 595; Law Reporter, 169, 173, N. S. 6 Term R. 315; section 40 of the Criminal Code.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of trespass, for an assault and false imprisonment, and a verdict and judgment for the defendants. To reverse this judgment the plaintiff appeals, and makes the point, that the verdict was contrary to the law and the evidence, and a new trial should have been granted.

The facts show the arrest of the plaintiff, without any warrant, by private persons, in the county where he lived, and taken to another county, and there confined in jail in a filthy cell, and discharged without examination.

Writers on criminal law and proceedings say, that, in general, an arrest may be made in three ways: by warrant; by an officer without a warrant; by a private person without a warrant.

A warrant, under our law, is usually issued by a justice of the peace, on a complaint made to him, under oath, that a criminal offense has been committed in his county. The warrant for the arrest is usually directed to all sheriffs, coroners and constables within the State. If the criminal be arrested, he is to be proceeded against as provided by secs. 203-207 of the criminal code. Gross’ Stat. The execution of the warrant for the arrest is confined to the county in which it issues, except when the offender shall cross the line into an adjoining county the officer may pursue him into such adjoining county, and there make the arrest. Sec. 207 ib.

*3 The magistrate issuing the warrant may make an order on it authorizing a person (to be named in the warrant) to execute it, and he may execute it anywhere in the State, by apprehending and conveying the offender before the magistrate who issued the warrant, or before some other justice of the peace of the same county. Sec. 208.

The law enjoins upon all persons making an arrest to acquaint the party named in the warrant, either before or after his arrest, with the substance of the warrant, if requested. 1 Ch. Crim. Law, 51; 2 Hawkins’ Pleas of the Crown, Ch. 13, sec. 28.

After making the arrest, it is the duty of the officer to convey the party, as soon as possible, before the magistrate, according to the import of the warrant, (2 Hale’s Pleas of the Crown, 119) and in conveying him the officer should use no more restraint than is necessary to prevent his escape.

As to the arrest by an officer without a warrant, it is settled, that a justice of the peace may apprehend, or cause to be apprehended, by verbal order merely, any person committing a felony or breach of the peace in his presence. 1 Hale’s P. C. 86. But if it is committed in his absence, he must issue a warrant in due course of law to apprehend the offender. 1 Ch. Cr. Law, 24, 25. Sheriffs and coroners and constables may, by the common law, apprehend any felon within their county without warrant. 4 Bl. Com. 289; 1 Hale’s P. C. 587. In case of a felony actually committed, a constable may, upon probable suspicion, arrest the party; but if the suspicion does not arise in his own mind, he should inquire scrupulously into the causes of the suspicion, and he will be justified in making the arrest, should it afterwards appear that no felony had been committed, provided he had reasonable grounds to suspect the party arrested–such grounds as should influence the conduct of a prudent and cautious man under the circumstances. This by the common law; but under our statute it is made the duty of a constable, when any felony or breach of the peace is committed in his presence, forthwith to apprehend the person committing it, and bring him before some justice of the peace to be dealt with according to law. Gross’ Stat. 401, sec. 88.

In the case of Board v. Dodds et al., 43 Ill. 95, which was an action for an assault and false imprisonment, it was held, that a plea, intended as a justification by the officer making the arrest averring that the plaintiff was an idle person, and consorted with persons of known bad character, and that a larceny had been recently committed in the neighborhood, and that he had been informed the plaintiff was accessory to the crime, and that he believed, and had probable cause for believing, that he was guilty, and had, therefore, arrested him, and taken him before two justices of the peace, and had him examined on the charge, and that the defendant was a peace officer, would be a good plea of justification. To authorize an officer without warrant to arrest a person on suspicion that he is guilty of crime, there must be such circumstances of suspicion that the party arrested was guilty as renders it probable that the accused had committed the crime; and it was further said, a private person had no right to arrest on mere suspicion–that a mere suspicion of guilt does not authorize all persons, without a warrant, to make an arrest. To prevent breaches of the peace, and perhaps bloodshed, a private individual should not be justified unless a crime has been committed, and the person arrested is shown to be the guilty party. A constable, having reasonable ground to suspect a felony has been committed, is authorized to detain the suspected party until inquiry can be made by the proper authorities. Whether or not there was reasonable ground for suspicion, is a mixed question of law and fact–the circumstances to show it reasonable being the fact, but whether, admitting the facts to be true, they amount to a justification, being a question of law.

*4 As to an arrest by a private person, it is held, that any private person who is present when a felony is committed, is bound by law to arrest the felon, on pain of fine and imprisonment if he escape through his negligence. This is the common law. 2 Hawkins’ Pleas of the Crown, 74. Yet we should hardly consider, under our statute and usual practice in such cases, that this obligation rests upon a private individual, though it would be, doubtless, his duty to attempt an arrest if one could be made without injury or peril to himself. Our criminal code provides that every male person above eighteen years of age must go to the assistance of an officer having criminal process for the arrest of an offender, and to aid in retaking a person who, after having been arrested or confined, may have escaped, and to aid in preventing any breach of the peace or the commission of any criminal offense, when lawfully required by the officer, or by any judge, justice of the peace, or other officer concerned in the administration of justice, under penalties for his refusal, in any sum not less than ten dollars, nor more than fifty dollars. Gross’ Stat. 211, sec. 140.

When a private person has apprehended another for felony, he may either deliver him into the hands of a constable, or he may carry him to any jail in the county; but the safest course is to cause him, so soon as convenience will permit, to be brought before some justice of the peace, by whom the prisoner may be examined and bailed, or committed to prison. Ib.

The plea in this case was, not guilty, with leave to give special matter in evidence; and it was proved, by Harvey, Parker and Murray, that shortly before the arrest of plaintiff, several burglaries had been committed by some one or more persons, near Eureka, and valuable property stolen, and that plaintiff had been seen in Crugers, with his brother William, Perry Chambers and Mishler, noted and suspected characters, the Sunday preceding the burglaries, and evidence was adduced showing the plaintiff had a bad character by report, though none was adduced against him as a man of truth and veracity. We do not think that single circumstance afforded probable ground for his arrest by the defendants, neither of them having a warrant, and neither of them an officer of the county authorized to make an arrest without a warrant.

What occurred after the arrest, transporting him to a foreign county and there confining him in a filthy cell, and discharging him without an examination, the arrest being unjustifiable, were proper to be considered by the jury in estimating the damages. The conduct of Towers, who had no more official authority in Woodford county than any private citizen of another State, can not be justified on any principle of law with which we are familiar. Being a police constable in Peoria, he usurped authority in Woodford, and ought to be punished for it. Detectives, as they are called, have no more right to disregard the law than any other person, nor, under the guise of authority, play “their fantastic tricks.”

*5 We are of opinion, the arrest of the plaintiff was illegal, and the verdict contrary to the law and the evidence. And if the arrest was legal, they did not proceed according to law, and take him before a magistrate for examination, but conveyed him to another county, and there imprisoned him in the county jail, in a filthy cell, thus invading one of the dearest and most sacred rights of the citizen, secured to him by the great charter of our land. Failing to take him before a magistrate of the county where arrested, hand-cuffing him, transporting him against his will to another county, and there imprisoning him in a filthy cell, is such evidence of malice, there being no probable cause to suspect him of guilty participation in crime, as to require the jury to award to him some damages.

The judgment must be reversed and the cause remanded, that a new trial may be had.

Judgment reversed.

Ill. 1869.

Kindred v. Stitt

51 Ill. 401, 1869 WL 5352 (Ill.)

END OF DOCUMENT

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill.,Sep Term 1869)

History
Direct History
=> 1 Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill. Sep Term 1869)

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill., Sep Term 1869)

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill. Sep Term 1869)

Citing References
Positive Cases (U.S.A.)
Cited
1 People v. Galan, 893 N.E.2d 597, 624, 323 Ill.Dec. 325, 352, 229 Ill.2d 484, 531 (Ill. Jul 24, 2008) (NO. 103845) (in dissent)
2 Lindquist v. Friedman’s, Inc., 8 N.E.2d 625, 627, 366 Ill. 232, 237 (Ill. Apr 16, 1937) (NO. 23914)
3 People v. Poncher, 192 N.E. 732, 734, 358 Ill. 73, 78 (Ill. Oct 24, 1934) (NO. 22545)
4 People v. Humphreys, 187 N.E. 446, 448, 353 Ill. 340, 347 (Ill. Oct 21, 1933) (NO. 21935)
5 People v. Doody, 175 N.E. 436, 442, 343 Ill. 194, 205 (Ill. Feb 18, 1931) (NO. 20033)
6 People v. McGurn, 173 N.E. 754, 756+, 341 Ill. 632, 636+ (Ill. Dec 18, 1930) (NO. 20379)
7 People v. Scalisi, 154 N.E. 715, 721+, 324 Ill. 131, 146+ (Ill. Dec 23, 1926) (NO. 17745)
8 Enright v. Gibson, 76 N.E. 689, 691, 219 Ill. 550, 556 (Ill. Feb 21, 1906)
9 Krug v. Ward, 77 Ill. 603, 605, 1875 WL 8374, *2 (Ill. Jun Term 1875)
10 People v. Marino, 400 N.E.2d 491, 494, 80 Ill.App.3d 657, 661, 36 Ill.Dec. 71, 74 (Ill.App. 2 Dist. Jan 22, 1980) (NO. 77-516)
11 People v. Royer, 242 N.E.2d 288, 290, 101 Ill.App.2d 44, 48 (Ill.App. 5 Dist. Nov 01, 1968) (NO. 68-57M)
12 People v. Fischetti, 273 Ill.App. 215, 218, 1933 WL 2734, *2 (Ill.App. 1 Dist. Dec 29, 1933) (NO. 36665)
13 Winans v. Congress Hotel Co., 227 Ill.App. 276, 283, 1922 WL 2648, *3 (Ill.App. 1 Dist. Dec 11, 1922) (NO. 27768)
14 Siegel, Cooper & Co. v. Connor, 70 Ill.App. 116, 117+, 1897 WL 2435, *1+ (Ill.App. 1 Dist. May 06, 1897)
15 Sundmacher v. Block, 39 Ill.App. 553, 553+, 1890 WL 2493, *1+ (Ill.App. 3 Dist. Jun 12, 1891)
16 Tojo v. Illinois & St. Louis Bridge Co., 13 Ill.App. 589, 592, 1883 WL 10553, *2, 13 Bradw. 589, 589 (Ill.App. 4 Dist. Oct 10, 1883)
17 Scott v. Flowers, 84 N.W. 81, 84, 60 Neb. 675, 675 (Neb. Nov 08, 1900)
Mentioned
18 People v. Ford, 191 N.E. 315, 317, 356 Ill. 572, 576 (Ill. Jun 15, 1934) (NO. 22216)
19 People v. Macklin, 186 N.E. 531, 532, 353 Ill. 64, 67 (Ill. Jun 22, 1933) (NO. 21775)
20 People v. Durham, 390 N.E.2d 517, 518, 71 Ill.App.3d 725, 726, 28 Ill.Dec. 350, 351 (Ill.App. 5 Dist. May 16, 1979) (NO. 77-538)
21 People v. Carnivale, 315 N.E.2d 609, 613, 21 Ill.App.3d 780, 785 (Ill.App. 1 Dist. Aug 01, 1974) (NO. 57677, 57678, 57679, 57680, 57681, 57682, 57683, 57684, 57685)
22 People v. Coleman, 261 N.E.2d 705, 706, 127 Ill.App.2d 38, 42 (Ill.App. 1 Dist. Jun 15, 1970) (NO. 54343)
23 Lindquist v. Friedman’s, Inc., 1 N.E.2d 529, 532, 285 Ill.App. 71, 77 (Ill.App. 1 Dist. Apr 20, 1936) (NO. 38696)
24 Schramko v. Boston Store of Chicago, 243 Ill.App. 251, 257, 1927 WL 4009, *3 (Ill.App. 1 Dist. Feb 07, 1927) (NO. 31255)
25 Hight v. Naylor, 86 Ill.App. 508, 509+, 1899 WL 2524, *1+ (Ill.App. 3 Dist. Dec 13, 1899)
26 Miller v. Fano, 66 P. 183, 185, 134 Cal. 103, 109 (Cal. Sep 06, 1901) (NO. 817)
27 Ross v. Kohler, 174 S.W. 36, 40, 163 Ky. 583, 583, L.R.A. 1915D,621, 1915D,621 (Ky. Mar 17, 1915)
28 Rodgers v. Schroeder, 287 S.W. 861, 863, 220 Mo.App. 575, 575 (Mo.App. Sep 21, 1926) (NO. 19511)
29 State v. Nall, 404 S.E.2d 202, 206, 304 S.C. 332, 338 (S.C.App. Feb 25, 1991) (NO. 1613)
Secondary Sources (U.S.A.)
30 Information, belief, or suspicion as to commission of felony, as justification for arrest by private person without warrant, 133 A.L.R. 608 (1941)
31 Territorial extent of power to arrest under a warrant, 61 A.L.R. 377 (1929)
32 CRIMINAL LAW-AUTHORITY OF A PRIVATE PERSON TO ARREST WITHOUT A WARRANT, 8 Tex. L. Rev. 140, 141 (1929)
Court Documents
Appellate Court Documents (U.S.A.)
Appellate Briefs
33 Andre WALLACE, Plaintiff-Appellant, v. CHICAGO POLICE OFFICERS KRISTEN KATO and Eugene Roy, Defendants-Appellees., 2005 WL 5806902, *5806902+ (Appellate Brief) (7th Cir. Mar 2005) Brief of Defendants-Appellees (NO. 04-3949)
34 Andre WALLACE, Plaintiff-Appellant, v. CITY OF CHICAGO, and Chicago Police Officers Kristen Kato and Eugene Roy, Defendants-Appellees., 2004 WL 5402440, *5402440+ (Appellate Brief) (7th Cir. 2004) Brief and Short Appendix of Plaintiff-Appellant (NO. 04-3949)

ENRIGHT v. GIBSON. 219 Ill. 550, 76 N.E. 689

Supreme Court of Illinois.

ENRIGHT

v.

GIBSON.

Feb. 21, 1906.

Appeal from Appellate Court, First District.

Action by Estella A. Gibson against Michael G. Enright. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

West Headnotes

Appeal and Error 30 173(10)

30 Appeal and Error

30V Presentation and Reservation in Lower Court of Grounds of Review

30V(A) Issues and Questions in Lower Court

30k173 Grounds of Defense or Opposition

30k173(10) k. Time of Bringing Suit, Limitations, and Laches. Most Cited Cases

An objection that an action was prematurely brought cannot be raised on appeal where not interposed at the trial.

Appeal and Error 30 580

30 Appeal and Error

30X Record

30X(E) Abstracts

30k580 k. Necessity and Duty to Make. Most Cited Cases

A party bringing a cause into the Appellate Court must furnish a complete abstract or abridgment of the record, such as will fully present every error and exception relied on, and sufficient for the examination and determination of the case without the examination of the written record.

Arrest 35 64

35 Arrest

35II On Criminal Charges

35k64 k. Private Persons, Arrest Without Warrant. Most Cited Cases

Under S.H.A. ch. 38, § 657, private citizen may arrest only when offense is committed or attempted in his presence.

False Imprisonment 168 20(1)

168 False Imprisonment

168I Civil Liability

168I(B) Actions

168k20 Pleading

168k20(1) k. Declaration, Complaint, or Petition. Most Cited Cases

An averment in a count in a declaration for false imprisonment that the same was committed without “reasonable or probable cause” was surplusage.

 

False Imprisonment 168 40

168 False Imprisonment

168I Civil Liability

168I(B) Actions

168k37 Trial

168k40 k. Instructions. Most Cited Cases

Where a declaration in an action against a private citizen joined two counts, one for false imprisonment and the other for malicious prosecution, instructions with reference to the doctrine of probable cause were properly modified by the court, so as to be rendered applicable only to the count charging malicious prosecution, where, under S.H.A. ch. 38, § 657, a private citizen was authorized to arrest only for offenses committed or attempted to be committed in his presence, and not to arrest on the ground of probable cause.

*551 **690 William E. Mason and Lewis F. Mason, for appellant.

Morse Ives and G. I. Haight, for appellee.

RICKS, J.

This was a suit brought by appellee, Estella A. Gibson, against appellant, in the superior court of Cook county. The declaration consisted of two counts. The first count alleged false imprisonment, and the second malicious prosecution. The cause was tried before a jury, and a verdict rendered for $5,000, $2,500 of which was remitted and judgment entered for the sum of $2,500, from which an appeal was prosecuted to the Appellate Court, where the judgment of the superior court was affirmed, and a further appeal is now prosecuted to this court.

Appellant conducted an employment office in the city of Chicago. Appellee was his clerk and in charge of what is termed by the evidence ‘the female department.’ For that department she kept a certain book, which contained merely the list of persons wanting female help, their locations and street numbers, the class of work, and the wages proposed to be paid. Appellee had been thus employed about six weeks. On Saturday evening, May 25, 1901, she took the book in question home with her, claiming that it was for the purpose of sewing the covers on the index to it and completing the index to the entries of orders. Appellant suspicioned that she had taken this book for the purpose of copying and furnishing to his competitors the entries therein contained. He missed the book the same evening that appellee took it, and sent a clerk to recall appellee to the office, who claims that when he saw appellee she directed him to return to appellant *552 and say to appellant that he did not see her. On Sunday afternoon she returned to the office with the book. Appellant was there and requested her to take a seat. She offered to show him the book and to tell him what she had been doing with it. Appellant immediately called an officer, directed him to arrest appellee, and accompanied the officer and appellee to the police station, where appellee was confined over night. Appellee claims that the door of the room in which she was detained until the officer arrived was locked, while the evidence on the part of appellant tends to show the contrary. On Monday morning, after appellee had been taken to the police station and confined overnight, appellant made a complaint charging appellee with larceny of the book in question. The cause was heard the following day, and appellee was discharged, and the suit at bar followed. Appellant was not an officer, and it is not contended that there is no evidence in the record fairly tending to support the first count, being the count for false imprisonment.

The errors relied upon relate wholly to the instructions. The complaint is that instructions 16, 17, 18, 19, and 20 offered by appellant were not given as offered, but were modified by the court and given as modified. Instructions 16, 17, and 18 relate to the elements of probable cause and good faith on the part of Enright. The sixteenth, as offered, defined probable cause, and advised the jury that unless they believed that the appellant acted without probable cause and with malice they should find him not guilty. The seventeenth, as offered, advised the jury that the burden of proof was upon appellee to show that the defendant did not have probable cause, and that if she failed to do so the jury should find the defendant not guilty. The eighteenth, as offered, was, in effect, that if Enright acted in good faith, upon evidence, whether true or false, which was sufficient to create in the mind of a reasonably cautious man a reasonable belief of guilt of the plaintiff, then they should find the defendant not guilty. The nineteenth, as offered, was that the plaintiff *553 must show that the defendant acted without probable cause and with malice, and that if the jury believed from the evidence there was probable cause and no malice was shown, they should find the defendant not guilty. The twentieth, as offered, advised the jury that it was not necessary for appellant to prove the actual guilt of appellee of the crime of larceny as bailee, but that if he acted upon facts and circumstances known to him, and they were such as would lead a reasonable and prudent man to believe her guilty, and that he did believe her guilty, then the jury should find the defendant not guilty. All these instructions, as offered, were general, and, unless modified, would be applicable alike to each count of the declaration. The court refused them as offered, and modified each of them by restricting its application to the second count of the declaration. As modified and given they stated correct principles of law applicable to the charge of malicious prosecution.

Counsel for appellant, however, take the position that the instructions are also applicable to the charge of false imprisonment contained in the first count, and in support of the contention cite Harpham v. Whitney, 77 Ill. 32, Bourne v. Stout, 62 Ill. 261, McGuire v. Goodman, 31 Ill. App. 420, and Ford v. Buckley, 68 Ill. App. 447. While those cases announce the principle that appellant contends for, they are applied wholly to cases for malicious prosecution, and not to cases for false imprisonment. Not one of the cases cited arose upon the charge of false imprisonment. By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested **691 committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, § 342, p. 677), it is provided: ‘An arrest may be made by an officer or by a private person without warrant, for a criminal*554 offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute.

The policy of the law in this state seems to be that a citizen must not be permitted to take the law into his own hands and to make arrests upon suspicion or upon probable cause of guilt. If the citizen knows a crime has been committed, it is his duty to appear before a magistrate and make a complaint, in which he states that the crime has been committed, and in which he may state, upon reasonable information and belief, that the party named is the guilty party, whereupon the magistrate will issue his warrant, directed to all sheriffs, coroners, and constables in the state, or, in case of emergency or in the absence of such officer, may direct the same to a private individual. When this course is pursued, ample protection is given to the citizen who makes the complaint or who may make the arrest under the warrant, and to the accused person named in the warrant. If the private citizen, without observing these formalities of law, may constitute himself an officer and jailer upon mere suspicion or probable cause of guilt of the accused person, it would place in the hands of the vicious or ill-disposed a power the exercise of which might result in a greater evil than might arise from the occasional escape of guilty parties before the officers can be called or the forms of law observed. Such has been the view of this court from an early date, and is clearly expressed*555 in Dodds v. Board, 43 Ill. 95. There Board brought suit against Dodds and others for false imprisonment. Logan, one of the defendants in that suit, attempted to justify by a plea in which he alleged that a larceny had recently been committed in that neighborhood and that he had reasonable ground to believe that the plaintiff was guilty as an accessory to said crime. A demurrer was sustained to this plea, and on appeal this court said: ‘This plea, as a defense, is defective in not stating that Logan was a peace officer authorized to make arrests of persons guilty of crime, if intended as a justification by such an officer. If intended as a justification as a private individual, it should, to constitute a bar, have averred the guilt of plaintiff. The demurrer was therefore properly sustained to this plea.’ The other defendants to the suit attempted to justify by a plea stating that they had reasonable ground to suspect that plaintiff was guilty of a larceny which had been recently committed, and that so suspecting, they induced and caused Logan, who was a peace officer, to make the arrest. A demurrer was sustained to this plea, and of it this court said: ‘To hold this plea good as a justification to the persons causing the arrest would be to hold that private individuals might arrest on probable cause to believe that the party was guilty, as the arrest thus caused is, in principle, precisely the same as if the arrest had been made by a private person. The mere fact that they induced even an officer, without a warrant, to make the arrest, does not protect them. They do not act under the direction of the officer, but he under theirs. Whilst in such a case the officer, acting upon facts reasonably calculated to raise the presumption of guilt, would no doubt be protected, the party causing him to make the arrest would not be unless guilt were shown. There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent *556 breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crime. This case was followed and quoted with approval in Kindred v. Stitt, 51 Ill. 401; and to the same effect is Johnson v. Von Kettler, 84 Ill. 315. These cases, as we think, are in keeping with the provisions of the statute above quoted. In fact, as we understand it, the statute above was enacted since the rendition of these opinions by this court, and we regard the statute as the enactment of the rule as formulated by this court.

The instructions, as offered, fall far short of meeting the requirements of the rule as above announced. They contain no reference to the actual commission of a felony or other crime by any person, nor are they predicated in any degree upon the guilt of **692 the appellee of such crime, and therefore, as a justification for the false imprisonment, were wholly insufficient and inapplicable to that count and charge. Appellant argues that these instructions should have been given because appellee, in the first count of the declaration, alleges that the arrest and false imprisonment were without any reasonable or probable cause. That allegation was not necessary, and doubtless was, as it should have been, treated by the trial court as surplusage. Johnson v. Von Kettler, supra.

We think there was no error in the modification of the instructions, and that the judgment of the Appellate Court should be affirmed, which is accordingly done.

Judgment affirmed.

Ill. 1906

Enright v. Gibson

219 Ill. 550, 76 N.E. 689

END OF DOCUMENT

Date of Printing: Jul 31, 2010

KEYCITE

Enright v. Gibson, 219 Ill. 550, 76 N.E. 689 (Ill.,Feb 21, 1906)

History
Direct History
1 Enright v. Gibson, 119 Ill.App. 411, 1905 WL 1905 (Ill.App. 1 Dist. Mar 27, 1905) (NO. 11867)
Affirmed by
=> 2 Enright v. Gibson, 219 Ill. 550, 76 N.E. 689 (Ill. Feb 21, 1906)
Negative Citing References (U.S.A.)
Distinguished by
3 People v. Picha, 44 Ill.App.3d 759, 358 N.E.2d 937, 3 Ill.Dec. 394 (Ill.App. 5 Dist. Dec 30, 1976) (NO. 75-299)

Date of Printing: Jul 31, 2010

KEYCITE

Enright v. Gibson, 219 Ill. 550, 76 N.E. 689 (Ill., Feb 21, 1906)

Date of Printing: Jul 31, 2010

KEYCITE

Enright v. Gibson, 219 Ill. 550, 76 N.E. 689 (Ill. Feb 21, 1906)

Citing References
Negative Cases (U.S.A.)
Distinguished by
1 People v. Picha, 358 N.E.2d 937, 939, 44 Ill.App.3d 759, 763, 3 Ill.Dec. 394, 396 (Ill.App. 5 Dist. Dec 30, 1976) (NO. 75-299)
Positive Cases (U.S.A.)
Discussed
2 Lindquist v. Friedman’s, Inc., 1 N.E.2d 529, 533+, 285 Ill.App. 71, 77+ (Ill.App. 1 Dist. Apr 20, 1936) (NO. 38696) “
Cited
3 Lindquist v. Friedman’s, Inc., 8 N.E.2d 625, 627, 366 Ill. 232, 236 (Ill. Apr 16, 1937) (NO. 23914)
4 Dutton v. Roo-Mac, Inc., 426 N.E.2d 604, 608+, 100 Ill.App.3d 116, 120+, 55 Ill.Dec. 458, 462+ (Ill.App. 2 Dist. Sep 15, 1981) (NO. 80-631)
5 Green v. No. 35 Check Exchange, Inc., 222 N.E.2d 133, 135, 77 Ill.App.2d 25, 28 (Ill.App. 1 Dist. Oct 28, 1966) (NO. 50460)
6 Winans v. Congress Hotel Co., 227 Ill.App. 276, 282, 1922 WL 2648, *3 (Ill.App. 1 Dist. Dec 11, 1922) (NO. 27768) “
7 Conkling v. Whitmore, 132 Ill.App. 574, 579+, 1907 WL 1751, *3+ (Ill.App. 2 Dist. Mar 13, 1907) (NO. 4,733)
8 U.S. v. Jones, 204 F.2d 745, 752 (7th Cir.(Ill.) Feb 20, 1953) (NO. 10607) “
9 Butler v. Goldblatt Bros., Inc., 432 F.Supp. 1122, 1128+ (N.D.Ill. Apr 15, 1977) (NO. 74 C 3000) “
Mentioned
10 Komorowski v. Boston Store of Chicago, 173 N.E. 189, 191, 341 Ill. 126, 129 (Ill. Oct 25, 1930) (NO. 19830)
11 Ferrell v. Livingston, 101 N.E.2d 599, 603, 344 Ill.App. 488, 495 (Ill.App. 1 Dist. Oct 24, 1951) (NO. 45229)
12 Haggard v. First Nat. Bank of Mandan, 8 N.W.2d 5, 15, 72 N.D. 434, 456 (N.D. Feb 09, 1942) (NO. 6864)
Secondary Sources (U.S.A.)
13 Admissibility and permissible use, in malicious prosecution action, of documentary evidence showing that prior criminal proceedings against instant plaintiff were terminated in his favor, 57 A.L.R.2d 1086 (1958)
14 Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause, 14 A.L.R.2d 264 (1950)
15 Information, belief, or suspicion as to commission of felony, as justification for arrest by private person without warrant, 133 A.L.R. 608 (1941)
16 Malice and want of probable cause as elements of action for false imprisonment, 19 A.L.R. 671 (1922)
17 Nichols Illinois Civil Practice s 68:6, Effect on time to appeal–Saving questions for review (2010)
18 Nichols Illinois Civil Practice s 69:9, Insufficiency of complaint as pleading (2010)
19 Illinois Law & Prac. False Impr. & Unlawful Restr. s 3, Detention or restraint–Illegality (2010)
20 Illinois Law and Practice Malicious Prosecution s 24, Termination of judicial proceedings (2010)
Court Documents
Appellate Court Documents (U.S.A.)
Appellate Briefs
21 PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Petitioner, v. Rudolfo CARRERA, Defendant-Respondent., 2001 WL 34387782, *34387782+ (Appellate Brief) (Ill. May 04, 2001) Petition for Leave to Appeal (NO. 91465) “
22 PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Ishmael WINFREY, Defendant-Appellant., 1999 WL 33755737, *33755737+ (Appellate Brief) (Ill.App. 1 Dist. Oct 12, 1999) Brief and Argument for Defendant-Appellant (NO. 1-98-4215)

The Right to Keep and Bear Arms, By Daniel J. Mckenna

The Right to Keep and Bear Arms, By Daniel J. Mckenna

THE RIGHT TO KEEP AND BEAR ARMS
By DANIEL J. MCKENNA

The right to keep and bear arms, 2 as interpreted in the opinions which have discussed it, presents many elements of confusion and uncertainty.

It is by no means a simple topic, to be settled by reference to the Second Amendment to the Constitution of the United States.3 Because of the elementary rule that the first ten Amendments apply only to federal legislation,’ the Second Amendment touches few of the cases which have arisen or are apt to arise. Congress has seldom taken steps which might lead to appropriate litigation concerning its own power thereunder. I Most of the judicial disputes have arisen from state legislation.

Before discussing the cases themselves, it is necessary to examine and compare those clauses in the several State constitutions which correspond to the Second Amendment. These are set forth in detail in the footnote.’
‘The author wishes to thank the editor of Adventure for permission to use material contained in a letter from the author to that magazine and printed in a section thereof devoted to such communications.

‘For an interesting discussion of the historical aspects of the matter, see “The Constitutional Right to Keep and Bear Arms,” by L. A. Emerey, 28 H.L.R.473. See also State v. Reid, 184o, I Ala. 612.

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”‘ U.S. v. Cruikshank, 1875, 92 U.S. 542, and many other cases. ‘Alabama. Art. I, No. 28. “That every citizen has the right to bear arms in defense of himself and the state. “Arizona, Art. II, Sec. 26. “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. “Arkansas. Art. II, No. 5. “The citizens of this State shall have the right to keep and bear arms for their common defense. “California. The Constitution says nothing upon this matter. Colorado. Art. II, No. i3. “That the right of no person to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein shall be construed to justify the practice of carrying concealed weapons. “Connecticut. Art. First, Sec. 17. “Every citizen has a right to bear arms in defense of himself and the State. “Delaware. Nothing.

The first impression a reader obtains from a perusal of these sections is that the framers of each constitution tried to make their own product as unlike the constitutions of all the other States as they could. Florida. Declaration of Rights, Sec. 20. “The right of the people to bear arms in defense of themselves and the lawful authority of the State shall not be infringed, but the legislature may prescribe the manner in which they may be borne. “Georgia. Art. I, Para. 22. “The right of the people to keep and bear arms shall not be infringed but the General Assembly shall have power to prescribe the manner in which arms may be borne. “Idaho. Art. I, Sec. ii. “The people shall have the right to bear arms for their security and defense- but the Legislature shall regulate the exercise of this right by law. “Illinois. Nothing. Indiana. Art. I, No. 77. “The people shall have a right to bear arms for the defense of themselves and the State. Iowa. Nothing. Kansas. Bill of Rights, No. 4. “The people have the right to bear arms for their defense and security; but standing armies in time of peace are dangerous to liberty; and shall not be kept up; and the military shall be in strict subordination to the civil power. “Kentucky. Bill of Rights, No. i. “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:7. The right to bear arms in defense of themselves and the State subject to the power of the general assembly to enact laws to prevent persons from carrying concealed weapons. “Louisiana. “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry concealed weapons. “Maine. Art. I, sec. 16. “Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned. “Maryland. Nothing. Massachusetts. Declaration of Rights, Art. 17. “The people have a right to keep and bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it. “Michigan. Art. II, sec. 5. “Every person has a right to bear arms for the defense of himself and the state. “Minnesota. Nothing. Mississippi. Art. III, sec. 12. “The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called into question but the legislature may regulate or forbid carrying concealed weapons. “Missouri. Art. II, sec. 17. “That the right of no citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons. “Montana. Art. III, sec. 13. “The right of any person to keep or bear arms in

But further examination permits one to detect certain group similarities and lines of cleavage. Defense of his own home, person and property or in aid of the civil power when thereto lawfully summoned, shall not be called into question, but nothing herein contained shall be held to permit the carrying of concealed weapons. “Nebraska. Nothing. Nevada. Nothing. New Hampshire. Nothing. New Jersey. Nothing. New Mexico. Art. II, sec. 6. “The people have the right to bear arms for their security and defense but nothing herein shall be held to permit the carrying of concealed weapons. “New York. There is no constitutional provision. However, Art. 2, No. 4of the Civil Rights Law (a statute) reads as follows: “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms cannot be infringed. “North Carolina. Art. I, sec. 24. “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power. Nothing herein contained shall justify the practice of carrying concealed weapons or prevent the legislature from enacting penal statutes against said practice. “North Dakota. Nothing. Ohio. Art. I, No. 4. “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty; and shall not be kept up; and the military shall be in strict subordination to the civil power. “Oklahoma. Art. 2, sec. 26. “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereunto lawfully summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of concealed weapons. “Oregon. Art. I, sec. 27. “The people shall have the right to bear arms for the defense of themselves and the state, but the military shall be kept in strict subordination to the civil power. “Pennsylvania. Art. I, sec. 21. “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. “Rhode Island. Art. I, sec. 22. “The right of the people to keep and bear arms shall not be infringed. “South Carolina. Art. I, sec. 28. “The people have a right to keep and bear arms for the common defense. As in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the General Assembly. The military power ought always to be held in an exact subordination to the civil authority and be governed by it. “South Dakota. Art. VI, sec. 24. “The right of citizens to bear arms in defense of themselves and the state shall not be denied. “Tennessee. Art. I, sec. 26. “That the citizens of this state have a right to keep and bear arms for their common defense; but the legislature shall have the power, by law, to regulate the wearing of arms with a view to prevent crime. “Texas. Art. I, sec. 23. “Every citizen shall have the right to keep and bear’

To begin with, fifteen constitutions are quite silent upon the matter of keeping or bearing arms.6Sixteen (including that of the United States) refer to the right as existing in “the People.”‘7Two say that it rests in “Individual Citizens.” 8Five use the single word “Citizens.” 9Eleven use the word “Citizen” or “Person” with an individual connotation, apparently intending that the individual may bear arms in his own private defense.’0Two do not specify the purpose for which arms may be borne. “Five say that the purpose is for the “Common Defense.”12Five more say that one of the purposes is “In Aid of the CivilPower.””3Another five say that it is for the people’s “Defense and Security.”‘ “arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. “Utah. Art. I, sec. 6. “The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law. “Vermont. Chap. I, art. 16. “That the people have a right to bear arms for the defense of themselves and the State-and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. “Virginia. Nothing. Washington. Art. I, sec. 24. “The right of the individual citizen to bear-arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men. “West Virginia. Nothing. Wisconsin. Nothing. Wyoming. Art. I, sec. 24. “The right of citizens to bear arms in defense of themselves and of the state shall not be denied.” ‘California, Delaware, Illinois, Iowa, Maryland, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Virginia, West Virginia and Wisconsin.’ United States, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Massachusetts, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, South Carolina, Utah and Vermont. ‘Arizona and Washington. ‘Arkansas, Pennsylvania, South Dakota, Tennessee and Wyoming. “Alabama, Arizona, Colorado, Connecticut, Michigan, Mississippi, Missouri, Montana, Oklahoma, Texas and Washington. “Georgia and Rhode Island. ‘Arkansas, Maine, Massachusetts, South Carolina and Tennessee. “Colorado, Mississippi, Missouri, Montana and Oklahoma Idaho, Kansas, New Mexico, Ohio and Utah.

Eight say that the right is to bear arms in defense of “Themselves(i.e., the people or citizens, using the plural or the collective noun)and/or the State.” 15Nine constitutions directly or indirectly discuss the matter of an army or militia in the clause in which they discuss the right to keep and bear arms, thus showing that they considered the matters to berelated.1 6 (Those which do not mention both subjects in the same clause contain elsewhere similar references to armies or militia.)Nine expressly except concealed weapons from the constitutionalprotection.17Six authorize the legislature to regulate the right. “Two expressly except private armies from the protection. 19Although it is commonly said that the right to keep and bear arms is not created by constitutions but that only its infringement is forbidden,20 eighteen constitutions appear to be broad enough to create such a right, even if it were theretofore non-existent. “The expectation of a judicial uniformity based upon such constitutional diversity is plainly unreasonable. For purposes of elimination, one should first consider those States in ‘which there is no constitutional reference to the keeping or bearing of arms. In New York, the validity of the Sullivan Anti-Weapon Law seems to have been expressly affirmed in the cases of People v. Warden’2and People v. Persce,”2 although these decisions hardly express the true situation, namely, that there is no restriction whatever upon this kind of legislation in New York. True, New York has a statutory Bill of Rights which embodies the same wording as the Second Amendment. But this was enacted only by the legislature itself. A later contradictory statute, being of equal dignity, will supersede the former one. ‘Florida, Indiana, Kentucky, Oregon, Pennsylvania, South Dakota, Vermont and Wyoming. ‘Kansas, Louisiana, Massachusetts, North Carolina, Ohio, Oregon, South Carolina, Vermont and the United States.” Colorado, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, North Carolina and Oklahoma. “Florida, Georgia, Idaho, Tennessee, Texas and Utah. “Arizona and Washington.’ U.S. v. Cruikshank, 1875, 92 U.S. 542. Presser v. Ill., i885, ii6 U.S. 252.’Alabama, Arkansas, Connecticut, Idaho, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, New Mexico, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah and Vermont.”1913, 139 N.Y. Supp. 277.M 1912, 204 N.Y. 397.

In a California case,24 the Court recognized the true doctrine that “the absence of such a guarantee (i.e., of the right to keep and bear arms) in the State Constitution leaves the legislature entirely free to deal with the subject. “In the famous case of Presser v. Illinois,25 in which the Supreme Court of the United States upheld the right of Illinois to forbid the parading of unauthorized bodies of armed men, the Court properly rejected the argument that the Second Amendment was violated. And Illinois has no similar clause in its own constitution. In the New Hampshire case of State v. Rheaume,26 no argument was even offered upon the right to keep and bear arms. Evidently, counsel realized that the Second Amendment did not apply. New Hampshire has no similar guarantee. Admitting that the Second Amendment applies only to Congress, what does it forbid Congress to do? That is a question as yet unanswered in full. judging from the prevailing trend of the cases, it would seem as if the Second Amendment only forbids Congress so to disarm citizens as to prevent them from functioning as state militiamen. Under Paragraph i6 of Section 8 of Article I, the Federal Government exercises a paramount control over, but may not destroy, the militia of the States and the latter may legislate concurrently, provided they do not contradict this Federal control.2 7The next problem is that of the State legislatures under their local constitutional restrictions. It is conceded that no American constitution robs its State of the latter’s general power to regulate the welfare of its citizens, protect the public peace, etc. In other words, the constitutional clause, if any, should be read in the light of the police power. The latter may be curtailed. It is not completely destroyed. It still exists, in some degree.2 8There are certain forms of weapon regulation so proper and necessary that they are universally conceded. The most noticeable of these is the restriction of the carrying of concealed weapons. Many of the constitutions expressly concede this right of legislation, but even in the absence of express constitutional provision, it exists everywhere. One old Kentucky case29 imagined that legislation forbidding the carrying” Ex Parte Ramirez, 1924, 226 P. 914. Accord, People v. Camperlingo, Calif.,2924, 231 P. 6o.I885, ii6 U.S. 252.1922, 8o N.H. 39, 116 A. 758.’Presser v. Ill., i885, xI6 U.S. 252; Dunne v. People, I879, 94 Ill. 120;Houston v. Moore, 5 Wheat. i; People v. Warden, I913, 139 N.Y. Supp. 277.’Strickland v. State, 1911, 137 Ga. if 72 SE 26o, 36 LRA (NS) 15; Andrews. State, 1871, 3 Heisk. (Tenn.) i65; State v. Reid, 1840, i Ala. 6iz.’ Bliss v. Commonwealth, 2 Litt. go.

of concealed weapons was unconstitutional but this decision was followed by a constitutional amendment authorizing such legislation. Other similar laws, which are not seriously questioned, are those against the pointing of weapons at people, against wearing arms in church, court, polling-place, etc., against the possession of arms by tramps, minors, convicts, insane or intoxicated persons, and against shooting within the city limits. 30
It is usually said that the only kind of weapons meant by the word “Arms” in the constitutions is the type of weapon suitable for use in civilized warfare. This means that sword-canes, bowie-knives, loaded canes, slung-shots, dirks, brass knuckles, pocket-pistols and Arkansas tooth-picks (which seem to have been very popular a few decades ago)do not come beneath the 2egis of the guarantee. Only such weapons asswords, bayonets, muskets, horseman’s pistols, field-pieces, mortars, etc., were intended to be protected.31 The few exceptions to this rule will be discussed later.

When a court says that only weapons suitable for warfare are protected, it is a fair inference that the Constitution expects the citizens to carry such weapons only as actual or potential members of the local militia. Some courts expressly enunciate this rule.32 Others, although not so definite in their phraseology, seem to mean the same thing when they say that the guarantee protects the people against oppression and aggression, since that connotes the citizenry acting as an organized unit’ Concealed weapons-Com. v. Murphy, 1896, 166 Mass. 171, 44 NE 138;State v. Gohl, 1907, 46 Wash., 408; Hill v. State, 1874, 53 Ga. 472; NztnN v.State, 1846, 1 Ga. 243; State v. Jumnel, 1858, 13 La. Ann. 399; State v. Kerner,1921, 107 SE 222 (N.C.) ; State v. Keet, 1916, I90 SW 573 (Mo) ; State v. Reid,184o, i Ala. 612; State v. Boone, 1903, 132 S.C. 1107, 44 SE 595; Wright v.Cont., 1875, 77 Pa. St. 470; Orrick v. Akers, 1904, 2O9 Mo. App. 662, 83 SW549;Haile v. State, 1882, 38 Ark. 564; Matthews v. State, 1926, 244 P. (Okla.) 56;State v. Angelo, 1925, 13o A. (N.J.) 458; State v. Nieto, 1920, 102 O.S. 409, 130NE 663. Other nuisances-Hogam v. State, 9oo, 63 O.S. 202, 52 LRA 863, 58NE 572; Hill v. State, I874, 53 Ga. 472; Parman v. Lernwn, 1926, 244 P. 930;Coleman v. State, 1858, 32 Ala. 581; State v. Shelby, 1886, 90 Mo. 302; Dave,-port v. State, 1895, 112 Ala. 49, 20 S 971; State v. Johnson, 1906, 76 S.C. 39;Walter v. State, 1905, 35 O.C.C. 567; People v. McCloskey, 1926, 244 P. (Calif.)930..Dabbs v. State, 1882, 39 Ark. 355; Fife v. State, 1876, 31 Ark. 633; Statev. Wilburnt, 1872, 66 Tenn. 57; Aymette v. State, 2 Humph. (Tenn.) 254; Andrewsv. State, 1871, 2 Heisk. (Tenn.) 165; Hill v. State, 1874, 53 Ga. 472;Ex Parte Thomas, 19o8, 21 Okla. 770, 97 P. 260, 20 LRA (NS) 1007.’Strickland v. State, 1911, 137 Ga. I, 72 SE 260, 36 LRA (NS) 115; Peoplev. Warden, 1913, 139 N.Y. Supp. 277; Salina v. Blacksley, 1905, 72 Kan. 230,83 P 619, 3 LRA (NS) 168; State v. Hogan, 19oo, 63 O.S. 202, 58 NE 572, 52LRA 863; Andrews v. State, 2871, 3 Heisk. (Tenn.) 165.

in defense of its liberties.3 3 The leading case of Salina v. Blacksley, supra, goes so far as expressly to decide that the word “people” means only the collective body and that individual rights are not protected by the constitutional clause. The only time that people are protected, according to this case, is when they are acting under the express authority of the State, as members of a military organization. According to the language of the opinion, “in some of the states, where it has been held, under similar provisions, that the citizen has the right to carry such arms as are ordinarily used in civilized warfare, it is placed on the ground that it was intended that the people would thereby become accustomed to handling and using such arms, so that in case of an emergency, they would be more or less prepared for the duties of a soldier. The weakness of this argument lies in the fact that in nearly every State in the Union, there are provisions for organizing and drilling State militia in sufficient numbers to meet any emergency.” This case said that the carrying even of unconcealed weapons might be forbidden. But this last point is by no means clear from the decisions.34A number of the constitutional provisions say that the guarantee of the right to keep and bear arms is to enable a man to defend his person, property, etc. Under American legal theory, clearly such a right of defense exists. The only difficulty is to discover how far the States may restrict his exercise of it through the employment of dangerous weapons. A few cases are quite liberal in allowing the use of firearms. But they are in the minority. They will be discussed later.33Whether or not a person may have weapons for self-defense, he clearly has no protection if he becomes the aggressor .3 In Carlton v.State,3 7 the Court, in pithy and forceful language, said that the guarantee in the Florida Constitution “was intended to give people means of protecting themselves against aggression and outrage and was not designed ‘as a shield for the individual man who is prone to load his stomach with liquor and his pockets with revolvers or dynamite and make of himself a dangerous nuisance to society. “There are a few decisions, to which reference was made in the second last paragraph, which, for want of a better adjective, can be described as liberal, in the sense that they do not try to whittle down the rights of the individual citizen.=Haiie v. State,’i8821 38 Ark. 564; Carlton v. State, 1912, 63 Fla. i; Walterv. State, I905, 35 O.C.C. 567; Smith v. Isenhour, i866, 43 Tenn. (3 Could.) 214.’NicnN v. State, 1846, I Ga. 243; State v. Duke, 1875, 42 Tex. 455; Isaiahv. State, 1912, 176 Ala. 27.’People v. Zerillo, 1922, 219 Mich. 635, 189 NW 927, etc.’State v. White, 1923, 253 SW (Mo.) 724; State v. Hogan, igoo, 63 O.S.2o2, 58 NE 572 52 LRA 863.’71912, 63 Fla. i.

Thus, in the case of Wilson v. State,38 the Court said, after admitting that certain necessary restrictions might be imposed: But to prohibit the citizen from wearing or carrying a war weapon, except on his own premises, or when on a journey traveling through the country with baggage, or when acting as, or in aid of, an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms.

A Texas case,3 9 decided in the same year, said that the legislature could not cause a person convicted of carrying arms illegally to forfeit them. “One of his most sacred rights is that of having arms for his own defense and that of the State,” said the Court.

The well-known Texas case of State v. Duke4″ went so far as to say that the Texas Constitution did not necessarily contemplate only the formation of a well-regulated militia [and that] the arms which every person is secured the right to keep and bear [in the defense of himself or the State, subject to legislative regulation,] must be such arms as are commonly kept according to the customs of the people and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State. If this does not include the double barrelledshot-gun, the huntsman’s rifle, and such pistols at least as are not adapted to being carried concealed, then the only arms which the great mass of the people of the State have, are not under constitutional protection.

But one must confront the last case with the much later one of Caswellv. State,4′ in which the Court intimated that the selling of firearms had a baneful influence and that the legislature could tax the business out of existence. Thus doth a frontier point of view change to an urban one!

The North Carolina case of State v. Kerner 2 shows a Court taking a common-sense view of the militia criterion. Chief Justice Clark said, in reference to the State Constitution, that, although the legislature could reasonably regulate the carrying of arms, it had to respect the customary weapons which people had possessed when the Constitution had been adopted.

It is true, [he said] that the invention of guns with a carrying range of probably 1oo miles, submarines, deadly gases, and of airplanes carrying bombs and other modern devices, have much reduced the importancei878, 33 Ark. 557.’Jewiings v. State, 5 Tex. App. 298.,0 1875, 42 Tex. 455.”1912, 148 SW (Tex.) 1159.42 1921, 107 SE 222.

of the pistol in warfare except at close range. But the ordinary private citizen, whose right to carry arms cannot be infringed upon, is not likely to purchase these expensive and most modem devices just named. To him the rifle, the musket, the shot-gun and the pistol are about the only arms which he could be expected to “bear,” and his right to do this is that which is guaranteed by the Constitution. To deprive him of bearing any of these arms is to infringe upon the right guaranteed to him by the Constitution.

The Michigan case of People v. Zerillo43 stated that aliens as well as citizens had a right, under the Michigan Constitution, to possess firearms, whether revolver, rifle or shot-gun, for the defense of themselves and their property. The Court distinguished this case from the Pennsylvania decision of Commonwealth v. Patsone,’ 4 which involved a Pennsylvania law against the possession of fire-arms by aliens. The Pennsylvania Constitution protects the rights only of citizens and the statute involved only forbade aliens to have long-range weapons, not interfering with their possession of short-range arms, such as revolvers and pistols. The Pennsylvania case is not mentioned further in this article because the opinion did not touch upon the right to keep and bear arms.

Most of the cases cited have discussed other topics in addition to the one which is the subject of this article. By way of brief explanation, without further detail, it may be said that the Supreme Court ofthe United States, in Miller v. Texas,4″ upheld a Texas law which for-1922, 219 Mich. 635, i89 NW 927. In the course of his opinion, Judge Wiest  said:” Must an alien owner of a farm sit with folded arms and watch hen-hawks steal his chickens? No; the act permits him to kill noxious birds and animals, when necessary, in defense of his person or property. But what is he going to use for that purpose? Until the occasion arises, if this statute is given the construction contended for by the people, it is a crime for him to possess a firearm, and he therefore cannot be prepared to exercise the leave granted without committing a crime. Woodchucks could burrow in his yards and meadows with impunity, owls rob his henroost, rats run about his feet at chore time, and in some sections of the state wolves could sit on his very doorstep and howl defiance. Even the predatory skunk, in the open season, would be more offensively armed than the unnaturalized farmer faring forth to drive it away. Must such a farmer whistle off the dog discovered in the act of killing his sheep? Another statute gives him the right to kill such a dog discovered in the act. Must he request the burglar to come unarmed because he is unarmed by the law? This act, if construed as contended for by the people, is so sharp shod as to calk itself. The right to kill noxious birds and animals.in defense of person or property would be but a joke if the means of exercising the right are taken away by the general prohibition against possessing any firearms.”” 1911, 231 Pa. 46; affirmed, 232 U.S. 138.”51 893, 153 U.S. 535.

bade tie carrying of dangerous weapons on the person. The Court said that this law did not violate the Second Amendment, of course, and also that it did not deprive anyone of due process of law or abridge the privileges and immunities of citizens of the United States.

The case of State v. Nieto 46 said that a man might violate an Ohio statute against carrying concealed weapons by carrying a revolver in his pocket within a bunkhouse where he was living and that the popular maxim, “A man’s house is his castle,” had no application.

There is great room for speculation as to the future law upon the right to keep and bear arms. One may assume that the constitutional guarantee refers to the preparedness of citizens to take their places in the militia. And yet, as the Court pointed out in State v. Kerner, the fashions in war weapons have undergone great change. The simple equipment of sword, pistol, musket and bayonet, etc., which once was adequate, is adequate no longer.”
As early as 1871, Judge Freeman, in Andrews v. State,48 said: We may for a moment pause to reflect on the fact that what was once deemed a stable and essential bulwark of freedom, “a well-regulated militia,” though the clause still remains in our Constitution, both State and Federal, has, as an organization, passed away in almost every State of the Union, and only remains to us as a memory of the past, probably never to be revived.

Judge Freeman was speaking of the Tennessee of the early seventies, just emerging from the terrible aftermath of the Civil War. In spite of his dictum, “well-regulated militia” organizations do exist and they probably are more efficient than at any period in the past. But whether they may be considered “a stable and essential bulwark of freedom, “to a greater degree than is the regular army, may be doubted. To this extent, Judge Freeman was correct, for in times of stress, the local militia invariably tends to submerge its identity in the national organization. Judge Green49 echoed a similar thought when he pointed out that no longer do states rely upon raw levies to turn out over night in case of an emergency, but carefully organize and drill their militia.

In other words, the day of the frontiersman, who leaped to the defense of his town or state when the savage raised his howl, is past. The modern soldier, be he militiaman or regular, is a cog in a well drilled, smoothly running machine. He is not expected to develop his natural ability by unorthodox means. He falls into line and obeys1920, 10, O.S. 409, Io NE 663.”Hill v. State, 1874, 53 Ga. 472.”3 Heisk. (Tenn.) 165. 1871.’Salina v. Blacksley, 1905, 72 Kan. 230, 83 P 619, 3 LRA (NS) 168.

his officers. The spirit of the free-lance pioneer is incompatible with modern military discipline.

Fashions in war change. The weapons which the fathers of the nation knew may become obsolete within the century, like cross-bows, fauchards,  misericordes or morgensterns. At one time, during the Middle Ages, cross-bows were condemned by the Church as inhumane. Yet they later became recognized weapons of warfare and then were forgotten. May one assume that gunpowder will never share the same fate? And if this would happen, would the constitutional guarantee be broad enough to cover new weapons as they become common and to leave old ones unprotected as they become obsolete? Or might the courts say that the states may have their well-regulated militia even though individuals possess no weapons of their own, provided the states supply the necessary armament upon mobilization?

Furthermore, leaving out of the discussion those states mentioned in Note 21, will future lawyers and judges admit that there is a right to keep and bear arms? One must remember that in such instances where the courts have discussed the matter at all, they have said that constitutions do not create the right, but only protect it, and that its origin may be found in man’s very nature.

In view of the fluidity of modern philosophic thought and in spite of the notorious conservatism of the legal profession, it is quite possible that jurists and publicists may someday universally deny that man has any inherent natural right to keep and bear arms. To put the case concretely, they may express themselves as follows: “Our ancestors thought that such a right existed but we now realize that they were mistaken.” Perhaps the Court in People v. Camperlingo50 had some idea of this nature in mind when it said: “It is clear that, in the exercise of the police power of the state, that is, for the public safety or the public welfare generally, such right may be either regulated or in proper cases, entirely destroyed.”

In other words, will the courts ever say that the Constitutions would protect the right to keep and bear arms, if there were such a right, but that it does not exist and never did exist except in the minds of discredited theorists? Who knows? To 1924, 231 P (Calif.) 6o1

Children's book 'Lilly' encourages students to murder police

Am I endorsing this book? No. However, this is a symptom of what is taking place all across the world with people becoming exasperated with the oppressive boot on their necks from the metastasizing police state. I do not condone violence in any form, but one must ask themselves, what is different from this book and the portrayal of atrocities committed by police? Of course, the media does not say that police have the right to kill people, but when police do, we see them “on administrative leave while an investigation is conducted”. Seldom are police tried or convicted for their crimes against the public. They are given much deference to their being “authority” and anyone who dares raise a voice in dissent “has it coming to them”.

Even though I do not agree with the resolution offered in the book, that is, the wholesale execution of police, I do agree that more discussion over just what role police serve in society is needed. Children likewise need to be spared the indoctrination involving police being de facto arbiters of justice.

It may serve police agencies to take note of the escalating din which promotes violence towards them in response to their violence towards society. Honestly, I believe it may be just what the police desire since it may tend to validate more oppressive measures and policy since we are deemed to be more violent. Police tend to create circumstances which justify their actions, which are merely reactions to contrived circumstances which they create.

Lilly

The children’s book titled ‘Lilly’. Supplied

Lilly

A character called Simon Overkill resembles Police Commissioner Simon Overland in the children’s book ‘Lilly’. Supplied

A TWISTED children’s book encouraging students to murder police is being shopped around Victorian schools.

The picture book, titled Lilly, tells the story of a little girl whose friends are racially vilified, tortured and shot by police, prompting her to murder a police officer resembling Police Commissioner Simon Overland.

Education Minister Martin Dixon said there was no chance the book would be added to the curriculum.

“This material is highly offensive and absolutely disgraceful,” he said. “It has no place in Victorian schools or the broader community.

“Victorian parents do not want their children exposed to obscene and violent material and I believe principals will not tolerate it being circulated in our schools.”

The authors – members of a heavy metal band – defended the book’s perverse content, saying it will “provoke discussion” among impressionable children.

“The basis of Lilly is the idea that the simplified stories we’re told as children can affect the way we later perceive the world as adults,” band spokeswoman Sarah Dobbs wrote in a letter to schools.

The book depicts police as violent monsters who:

BEAT a dark-skinned boy on the ground with batons.

ELECTROCUTE a little girl who is looking after a sick friend at a park.

SHOOT dead a boy named Tyler because he misses his dad.

Lilly, the “hero” of the book, saves the day by shooting “Simon Overkill” in the head, releasing a rainbow and doves from his skull.

Victoria Police declined to comment, but Police Association secretary Sen-Sgt Greg Davies dismissed the book as a bad joke.

“These twisted morons can sit around their marijuana-fuelled campfire telling each other their twisted tales, collecting the dole from the rest of us and leave our children to be reared by their parents,” he said.

The book states: “All depictions of police brutality are taken from real events, reported by the media.”

Ms Dobbs told the Herald Sun by email she expected schools to welcome the book into curriculums.

“We’ve already been in contact with many political studies, english, media and communications teachers keen to look at the issues raised in Lilly,” she wrote.

UPDATE 9.39am: THE group behind a children’s book that endorses killing police officers say several schools have expressed interest in it.

And Chief Commissioner Simon Overland says police can’t do anything to stop the twisted book being shopped around schools.

The authors – members of a heavy metal band – defended the book’s perverse content, saying it will “provoke discussion” among impressionable children.

Band spokeswoman Sarah Dobbs said 17 schools across four states had expressed interest in the book – even thought it has not yet been approved by the Classification Board.

Ms Dobbs said it was important to contradict the message given to children of “wildly unrealistic stereotypes of police-as-superheroes” and to encourage scepticism of law-and-order policies.

“We find it surprising and saddening that despite these reports (of police violence), there are still almost constant public calls for more police officers to be deployed, and for police to be granted ever-broader powers over their fellow Australians,” Ms Dobbs said.

“The basis of Lilly is the idea that the simplified stories we’re told as children can affect the way we later perceive the world as adults,” band spokeswoman Sarah Dobbs wrote in a letter to schools.

For more on the children’s book that is encouraging students to kill police go to the Herald Sun.

Police Have the Right to Invade the Homes of Judges in Indiana.

I find this case to be a warning shot across the bow of those hold-outs who believe this is a government of, by, and for the People, and that political action will remedy the no-longer stealthy encroachment upon natural, unalienable rights. No longer does the State veil its threats in craftily worded court opinions, but rather proudly raise the flag of totalitarianism in laying claim to one of the most fundamental of rights, that of self-defense. I expound upon the application of this right and previous courts recognizing such in this article.  The Indiana Supreme Court also references one seminal case, Bad Elk v. United States.

In that case, the court said,

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

However, the Indiana Supreme Court goes on to overturn this antiquated, common law right in referring to the Model Penal Code, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). What people fail to realize is, that under the Common Law, it was recognized that the individual was in full possession of his liberties by way of natural, unalienable rights and the protections guaranteed by the Constitution. Nowadays, courts circumvent long-held beliefs in the supremacy of individual liberty in favor of public policy. Everyone is essentially considered to be suspected of something, and when felonies were the crime of concern, the bar has been lowered to accommodate misdemeanors as well. Everyone is considered to be potentially violent and in violation of some law. Police are afforded carte blanche when it comes to inspecting, questioning, detaining, arresting, and even killing people.  The Indiana Supreme Court said,

“The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.‖  Hemmens & Levin, supra, at 23.  In response to this criticism, a majority of states have abolishedthe right via statutes in the 1940s and judicial opinions in the 1960s.

What are the “alternate remedies for aggrieved arrestees” the court favors in opposition to the common law right to resist arrest? Under the common law right, the court supports its previous recognition of the right based on the then-perils facing the arrestee such as indefinite detention, lack of bail, disease-infested prisons, and physical torture. This is to say that when faced with such possibilities, an individual had the right to resist unlawful arrest because the outcome from such resistance was less and considered more reasonable than the perils awaiting him if he should submit. Reading this another way, the courts were saying that law enforcement was known to, at times, treat arrested persons in ways inconsistent with natural, unalienable rights and Constitutional protections. The “alternate remedies” to which the court now speaks, referring to them as “modern developments’, include, “(1) bail, (2) prompt arraignment and determination of probable cause, (3)the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).” This is to say that, presuming you survive the arrest, you have more civil and peaceable remedies at your disposal which will still subject you to the arbitrary, corrupt, and protracted administration of so-called “justice”. If you are the victim of an unlawful arrest you can post bail, challenge the probable cause for the intrusion, which has essentially been negated by this ruling because probable cause exists only in justifying the grounds for an arrest, exclude any illegally obtained evidence and petition the gangsters who violated your rights for redress and pursue civil remedies of which the legislatures have extended limited immunity. Sounds like a fair trade-off to me.

There are two Justices who voiced their dissent with the majority ruling, and you can read the entire court opinion here. They likewise mention the overbreadth of this ruling which essentially means the police need no reason at all for entering your home. One thing that distinguishes this case from others where the court affirmed the Common Law right to resist unlawful arrest is that this was a “domestic violence” case where a call to 911 was made. The Court did not mention this as a specific and limited application of their overbroad abrogation of the common law, but briefly mention it early in the ruling. Domestic violence, or not, the Court essentially buries centuries of jurisprudence which recognizes the right of an individual to defend themselves from unlawful State action, especially that which violates the sanctity of their home.

I wonder what Justice, Steven David, would do when faced with the specter of an unlawful arrest; especially on in which his very life is threatened by police. For example, let’s say that some private individuals purchase uniforms that resemble police uniforms. Let ‘s say these individuals just so happen to be particularly exasperated with the despotic ruling by Justice David and, as a result, exhibit aggressive, violent, and irrational behavior when acting out this scenario; much like a common police officer would exhibit. Let’s say these angry, violent, police-imposters barge into Justice David’s home with guns drawn and barking orders at the residents, maybe including David’s wife, children, and elderly parents. Let’s assume that Justice David is a gunowner and has within his reach access to a firearm. The imposters order everyone to the ground where they go on to verbally abuse and physically assault recalcitrant suspects. Justice David tries to verbally engage the imposters to determine the reason for the intrusion. Some of David’s family appear to resist out of fear for their lives. The imposters kick and pistol whip them for their insolence. They shout to the suspects, “Shut up! Justice David has affirmed our right to violate your right to be secure in your own home! We are blameless!” During the confrontation, one of the imposters shoots and kills David’s children and wife as well as seriously wounding David himself. They then apologize for the intrusion, citing a mistaken address provided to them by a drug snitch before leaving the premises.

Would David gather his fallen family members and tsk-tsk-tsk their demise as a justifiable exercise of State action? He would be none the wiser that the perpetrators were not police, as they were disguised as police. Yet, in David’s twisted mind he would believe their actions to be in conformance with his psychotic ruling. Would David lick his wounds and then march down to the county courthouse to file a civil suit to recover monetary damages to replace the lost affection and companionship of his fallen family members? Would he look at the hole in his leg and reflect back on his ruling, thinking, ” ’tis just and right.”? One must wonder what such a man would do when faced with the real-world application of his holding. I guess David, being the good Statist that he is, would accept the death of his family as reasonable, since their recourse is to quietly compost into worm food and apply for bail.

Of course, God forbid any such thing would happen, but then again, God forbid the State would do the same to any other. Yet, that very thing happens all too frequently. In that case, I guess there is no reason to feel any differently towards Justice David’s loss than that of any other; and seeing David has no consideration for the possible horrors facing others who take exception with David’s opinion, I can only speculate that David would believe his family “deserved it”. Maybe Justice David has something to think about, and maybe something to fear, as well. What follows is the text of the opinion. This message brought to you by Bob’s Costume Rental, 123 Main Street, Indianapolis, Indiana.

INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The court’s decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment.

When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court’s decision is consistent with the idea of preventing violence.

“It’s not surprising that they would say there’s no right to beat the hell out of the officer,” Bodensteiner said. “(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer.”

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court’s decision runs afoul of the Fourth Amendment of the U.S. Constitution.

“In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said. “I disagree.”

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.