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

Supreme Court of Illinois.




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.


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


Date of Printing: Jul 31, 2010


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

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


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

Date of Printing: Jul 31, 2010


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.)
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) “
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) “
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)

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