¶1[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *465 This case was tried as though it were an action for malicious prosecution. In such an action the burden was upon the plaintiff to show a want of probable cause. No such evidence was given, and, therefore, as such an action, the case was properly disposed of. *466
¶2But the allegations of the complaint are for an illegal arrest and detention. Such acts constitute what is usually denominated an action of false imprisonment; an action in the nature of a trespass for a direct wrong or illegal act, in which the defendant must have personally participated. (Johnstone v.Sutton,1 Tenn. Rep., 544.) Or the act must have been by his direct or indirect procurement. (Hopkins v. Crowe, 7 C. P., 573.) The gist of such an action is an unlawful detention, and motive will be inferred so far, at least, as to sustain the action; and evidence to disprove actual motive only bears upon the question of damages.
¶3Probable cause, or reasonable ground, for suspicion against a plaintiff, affords no justification for an arrest or imprisonment, unless a felony has actually been committed; in which case the burden of proving that a felony had actually been committed, and the facts relied upon to establish probable cause, or reasonable ground for suspicion, is upon the defendant.
¶4As a general principle, no person can be arrested or taken into custody without warrant. But if a felony, or a breach of the peace, has, in fact, been committed by the person arrested, the arrest may be justified, by any person, without warrant, whether there was time to procure a warrant or not; but if an innocent person be arrested upon suspicion by a private individual, such individual is not excused unless such offence has, in fact, been committed, and there was reasonable ground to suspect the person arrested. (Hale's Pl. Cr., 72; 1 Chit. Cr. Law, 15; Hally v.Mix,3 Wend., 353.) Lord MANSFIELD said, in Samuel v. Payne (Doug., 346): "If a felony has been committed, any man, upon reasonable probable ground of suspicion, may justify apprehending a suspected person and carrying him before a magistrate. See alsoHobbs v. Beaumont (3 Camp., 420); West v. Baxendale (9 Com. Bench Rep., 141).
¶5This question of probable cause, or reasonable ground for suspicion, whether it arises in actions for malicious prosecution or false imprisonment, is one of law, unless the evidence *467 out of which it arises is conflicting; in which event it is the duty of the court to instruct the jury what facts, if established, will constitute probable cause, and submit to them only the question as to such facts. (Bulkley v. Ketteltas,6 N Y, 384.)
¶6In this case there was no dispute about the facts bearing upon the question of probable cause. It was undisputed that a felony had been committed; that plaintiff was in the house at the time it was committed, and that she left shortly after. There was not, therefore, any question for the jury. The question was simply one of law, and, as such, the proof showed a reasonable ground for suspicion against the plaintiff.
¶7Therefore, conceding that defendant entered a complaint against the plaintiff, that he actually assisted in her arrest, a complete justification was established.
¶8The nonsuit was right, and the judgment should be affirmed.
¶9By section 8 of the act to establish a Metropolitan Police District, passed April 15th, 1857 (chap. 569 of Laws of 1857), the members of the police force of that district are given "in every part of the State of New York, all the common law and statutory powers of constables, except for the service of civil process." And in the amendatory act passed April 10, 1860 (chap. 259 of Laws of 1860), it is declared in the 28th section, that the members of the police force of that district "shall possess in every part of the State all the common law and statutory powers of constables, except for the service of civil process."
¶10In pursuance of information given by the defendant, Erben, the defendant, Frost, accompanied by Erben, arrested the plaintiff without warrant, took her to the police station, where she was detained a few minutes, and after some conversation with the officer in charge, she was permitted to return to her residence. For this she has brought the present action for false imprisonment.
¶11A felony had been committed that evening, at the house *468 of Mr. Henry Erben, the defendant's father. On that point there is no dispute or conflict. The plaintiff had visited the house that evening, and, according to the information upon which the defendant acted, was the only person not a member of the family, who had been in the basement. Silver had been stolen from the basement. It was there when the plaintiff entered and until after 8 o'clock; and it was missed very shortly after she left the house. Of these facts the proof was distinct and without contradiction.
¶12Upon a report of these facts, Frost, accompanied by the defendant, Erben, made the arrest as above stated.
¶13The inquiry is, therefore, whether under the statutes above cited and the common law rule in respect of arrests made or aided by private persons, the plaintiff was entitled to recover. There were no facts in dispute requiring the submission of any question to the jury, unless it be held that there was no justification.
¶14I have no doubt upon the subject. The writers upon criminal law and the reported cases, so far as I have examined them, hold uniform language.
¶15Lord TENTERDEN, Ch. J., in Beckwith v. Philby (6 Barn. Cres., 635), says: "The only question of law in this case is, whether a constable, having a reasonable cause to suspect that a person has committed a felony, may detain such person until he can be brought before a justice of the peace to have his conduct investigated. There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed; whereas a constable having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." (See Hawk P.C., book 2, chap. 12, 13; 1 Russell on Crime, 594, 5; Steph. Cr. L., 242, 3; 1 Chit. Cr. L., 15, 17; Samuel v. Payne, Doug., 358; Lawrence v. Hedger, 3 Taunt., 14; Regina v. Toohy, 2 Ld. Raymond, 130; Hobbs v. Brandscomb,*469 3 Camp., 420; Davis v. Russell, 5 Bing, 354; Cowles v.Dunbar, 2 Car. and P., 565.)
¶16In Ledwith v. Catchpole (Cald. Cas., 291, and 1st Burns, Justice, p. 130, 1), Lord MANSFIELD, says, in an action against the officer: "The question is, whether a felony has been committed or not. And then the fundamental distinction is, that if a felony has actually been committed, a private person may, as well as a police officer, arrest; if not, the question always turns upon this, was the arrest bona fide? Was the act done fairly and in pursuit of an offender, or by design, or malice, or ill will? … It would be a terrible thing, if, under probable cause, an arrest could not be made …; many an innocent man has and may be taken up upon suspicion; but the mischief and inconvenience to the public in this point of view, is comparatively nothing; it is of great consequence to the police of the country."
¶17The justification of an arrest by a private person was made inAllen v. Wright (8 Carr and Payne, 522), to depend on first, the fact that a felony had been actually committed; and second, that the circumstances were such that a reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it.
¶18These principles are affirmed in this State in Mix v. Clute (3 Wend., 350), in very distinct terms. "If a felony has been committed by the person arrested, the arrest may be justified by any person without warrant. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to believe."
¶19The fact being proved in this case that a felony had in fact been committed, I have no hesitation in saying that, however unfortunate it was to the plaintiff, the circumstances fully justified the suspicion which led to her arrest. It is claimed *470 that these circumstances should have been submitted to the jury. Not so; a verdict finding no reasonable ground of suspicion would have been against evidence. There was no conflict of testimony, and that the arrest was made without malice, in good faith, and upon reasonable grounds, is to my mind incontrovertible.
¶20The appeal appears to me to have been taken upon a misapprehension of the construction and effect of the statutes conferring power on the policeman. I think the power perfectly clear, and I notice that the rules and regulations of the board of police are in conformity therewith; and it is made the duty of the officer to take the arrested person immediately before the Police Court, or if made at night or when the courts are not open, immediately to the station house, where the officer on duty is required to examine whether there is reasonable ground for the complaint, and if so, to cause the party to be taken before the court the next morning. Under such a system, innocent parties may sometimes be subjected to inconvenience and mortification; but any more lax rules would be greatly dangerous to the peace of the community and make the escape of criminals frequent and easy.
¶21The judgment should be affirmed.
¶22All the judges concurring, judgment affirmed.