to justify, as peace officers of the city of Charlotte, the arrest and detention of the prosecutor, upon the ground that he was found in a state of intoxication and behaving in a boisterous and disorderly manner, in violation of a city ordinance they were required to enforce, and no excessive or unreasonable force was used to overcome his resistance and convey him to the guard-house for a temporary confinement. The evidence as to the condition of Mason, and his behavior and the manner in which the defendants exercised their power, was somewhat conflicting, and needs not to be repeated to present their exceptions, which their appeal from the judgment following correction brings up for review. The charge of the court, in response to the prayer for instructions asked and refused, and of which complaint is made is in these words: — "Should you be satisfied from the testimony that Mason was drunk, or using loud and profane language, or indecently exposing his person in the place described, then you must inquire whether the defendant Healy struck him a blow that was unnecessary to enable Healy to complete the arrest.. If he did, he is guilty of assault and battery, but McNinch would not be guilty of this assault and battery unless he was present aiding and abetting — that is, ordering, counseling, or encouraging him. And you must further inquire whether more force than was necessary was used by Healy and McNinch, or either of them, in presence of the other at the guard-house, for if there was more than was necessary for his confinement used at the guard-house, and both were present aiding in the use of such force, or the one encouraging the other in the use, they would both be guilty of assault and battery.'

"The exception to the charge is that it transfers the honest exercise of the judgment of the accused, as to the degree of force required to overcome resistance and the means appropriate and adequate to secure submission under the attending circumstances, to the cooler judgment of the jurors taking a retrospective view of the occurrence. It, moreover, ignores the question of the good faith in which the accused aver they acted in enforcing the ordinance and preserving public peace and quiet. This is, to say the least, a harsh measure of responsibility to hold officers to, when engaged in the public service and acting without malice or improper motive. It may be that less force would have sufficed, but should the misjudgment of the officers, while engaged in subduing opposing force, expose them to a rigid accountability as criminals, because of the excess now seen to have been used, while nothing was done beyond the use of such means as are ordinarily employed in such cases and which evince no malicious feeling or purpose? While the individual citizen is protected by law against any invasion of personal security, he is equally interested in the maintenance of public order and the suppression of crime for which the public agencies are formed and intrusted necessarily with large discretionary power. In making an arrest upon personal observation and without warrant, the officers will be excused when no offense has been perpetrated, if the circumstances are such as reasonably warrant the belief that it was,1 and the jury must judge of the reasonableness of the grounds upon which the officer acted. On the other hand, the amount of force and the employment of the usual means in making the arrest and detention, when within the compass of the means usually resorted to for securing one found committing a criminal act, must be left to the discretion and judgment of the officer, when actuated by no ill-will or malevolent impulse, and is engaged in discharging an official duty. In the words

1 Neal v. Joyner, 89 N. C. 287.

of Gaston, J., commenting on an instruction which directed the jury to determine whether a man of ordinary prudence would not have deemed it necessary and proper to secure the prisoner by tying him,' for doing which the accused constable then on trial had been indicted for an abuse of authority: 'The act of tying is therefore within the limits of the officer's authority, and of the propriety and necessity of adopting this mode of securing the prisoner, the officer is the judge, and the jury can not supervise the correctness of his judgment.' So, where a teacher was charged with inflicting an excessive whipping upon a pupil, the same learned judge said: 'Within the sphere, the master is the judge when correction is necessary, and of the degree of correction necessary, and like all others intrusted with a discretion, he can not be made penally responsible for errors of judgment, but only for wickedness of purpose.' But the master may be punishable when he does not transcend the powers granted, if he grossly abuse them. If he use his authority as a cover for malice, and under pretense of administering correction, gratify his own bad passions, the mask of the judge shall be taken off and he will stand amenable to justice as an individual not invested with judicial power."2

"The rule laid down in State v. Stalcup,' is reasserted in Farr v. Moss, wherein Manly, J., after declaring that a justice of the peace acting in his judicial capacity is not exposed to an action for a judgment, however erroneous or malicious, proceeds: 'It is not so, however, with regard to such acts as are not judicial but merely ministerial. With respect to the latter, if the officer transcend his powers maliciously (mala fide), he will be amenable to the person injured.'

"When this case was before us on a former appeal," the exception passed on did not present the question of an excess of police power, but whether the arrested party was acting in violation of the law at the time.

"While then the jury must say whether the defendants had reasonable grounds to warrant the arrest, and the charge in this respect is not obnoxious to criticism, there is error in an instruction which makes the criminal act depend, not upon an honest judgment of the defendants as to the degree of force necessary to be exerted, under the restraints mentioned, but of the conclusion of the jury on a review of the facts, that the force was needless and the same result would have been obtained by use of less. There must be a venire de novo and it is so ordered. This will be certified.

Error.

Venire de novo.

§ 186. Bawdy House - Leasing Premises for. An indictment for leasing premises to be used as a bawdy house can not be sustained without proof that defendant knew of the purpose to which the house was to be put."

§ 187. Bigamy. - A husband or wife having an honest belief that his first wife or husband is dead is not guilty of bigamy in marrying a second time."

In R. v. Horton, the prisoner was indicted for bigamy in marrying Lucy Swire, his former wife, Letitia Phillips being alive. The prisoner married

1 State v. Stalcup, 2 Ired. 50.

2 State v. Pendergrass, 2 Dev. & Bat. 365. 8 Supra.

47 Jones, 525.

687 N. C. 567.

State v. Leach, 50 Mo. 535 (1872).

7 R. v. Turner, 9 Cox, 145 (1862); Squire v State, 46 Ind. 459 (1874); R. v. Jones, 1 C., & M. 604 (1842); R. v. Dane, 1 F. & F. 323 (1858); R. v. Cross, Id. 510; Watson v. State, 15 Tex. (App.) 76 (1882).

8 11 Cox, 670.

Letitia Phillips on the 17th of February, 1863. She left him in 1864 and went to reside with a family in France. It appeared that the prisoner became acquainted with Lucy Swire in 1865 or 1866, and that he made various inquiries about his wife Letitia, with a view to ascertaining where she was living, or I whether she was still alive. He called upon her mother, Mrs. Phillips, who said that all she knew of her daughter was that she had gone to France; and afterwards went to Chester and other places, and made inquiries of a detective, . but failed to obtain information. In November, 1866, he received a letter from Henry Phillips, his wife's brother, saying: "My sister went on to the Continent with a traveling family a long time ago; we expect she is drowned, for we have not heard from her since she went."

On the 13th of October, 1867, the prisoner married Lucy Swire, his wife Letitia, being still alive. Weightman, for the prisoner, contended, on the authority of Regina v. Turner,1 that although seven years had not elapsed before the second marriage, yet, if the prisoner at the time of the second marriage had an honest belief that his first wife was dead, he ought to be acquitted. CLEASBY, B., in the course of his summing up, said: "It is submitted that, although seven years had not passed since the first marriage, yet if the prisoner reasonably believed (which presupposes proper grounds of belief) that his first wife was dead, he is entitled to an acquittal. It would press very hard upon a prisoner if under such circumstances he could be convicted, when it appeared to him as a positive fact that his first wife was dead. The case which was cited of Regina v. Turner, shows that this was the view of Baron Martin, a judge of as great experience as any on the bench now, and I am not disposed to act contrary to his opinion. You must and the prisoner guilty, unless you think that he had fair and reasonable grounds for believing, and did honestly believe, that his first wife was dead." The jury returned a verdict of guilty, and the learned judge sentenced the prisoner to imprisonment for three days, remarking that he was quite satisfied with the verdict, and that he should inflict a light sentence, as he thought the prisoner really believed the first wife was dead, although he was not warranted in holding that belief.

§ 188. Conspiracy - Placing Person in Asylum - Bona Fide Belief of Insanity. In Commonwealth v. Mintzer,' certain persons were brought up in habeas corpus, being held on a charge of conspiracy. PAXSON, J., in delivering judgment said: "Stripped of all extraneous matter the case is narrowed to the simple inquiry whether the relators are guilty of a criminal conspiracy. This court can not regulate all of the domestic affairs of our citizens. It is only when the law is violated that we can interfere. I do not propose to express any opinion as to the present mental condition of Miss Mintzer as regards her sanity. It is not necessary to the proper determination of this case. It would seem to be clear, however, that she is a young lady of good mind, and more than ordinary attainments. It is also in proof that some ten or twelve years ago she was a inmate of this same institution (Kirkbride's) for a period of about seven months, where she was treated for a disordered intellect. It proceeded from the same cause as her present alleged insanity, viz.: Aversion or hostility to her family. Dr. Kirkbride says, in regard to her condition at that time, that he had no doubt of her insanity. Indeed, he had never heard it questioned. She was dis

19 Cox Crim. Cas. 145.

21 Leg. Gaz. 341 (1871) (Pa.).

charged from the institution after about seven months' confinement, as improved, but not fully cured, at the request of her brother, Dr. St. John Mintzer, one of the relators, who proposed to take her to Washington. Dr. Kirkbride was of opinion that her removal from disturbing home associations to fresh scenes might not prove injurious, and she accordingly accompanied her brother. Sometime thereafter she obtained employment as a clerk in a bureau of the Treasury Department at Washington, at a liberal salary, and performed her duties for some years with great satisfaction to the department and credit to herself. Finally, she resigned, and returned to her mother's house in Philadelphia. Shortly thereafter the old troubles recommenced, and they resulted in her mother and brothers placing her again, for medical treatment, in the asylum. She remained there a few days, when she escaped and went to the house of Mr. Geo. C. Evans, a personal friend. Dr. Kirkbride was examined as to her mental condition during this brief period, and he says he had two or three interviews with her, and that from those interviews alone, disconnected with the statements of her relatives, he was unable to form an opinion as to her sanity. That Miss Mintzer was placed in the asylum the second time under a belief of her mother and brothers that the state of her mind required medical treatment, the evidence in this case leaves no room for doubt. If the relatives were mistaken in their belief, does it render them criminals? I am not prepared so to decide. The Commonwealth must make one of two points before I can remand these relatives. It must be shown either that the act which was the subject of the alleged conspiracy was unlawful, or that unlawful means were made use of to effect it. The act complained of was the placing of a young lady in an lunatic asylum by her mother and brothers, under a belief that she required medical treatment for insanity. This is not an unlawful act by the laws of Pennsylvania. If it were, the condition of those who are mentally afflicted would be pitiable indeed. Did the relatives resort to unlawful means? On the contrary, the law was strictly complied with. Two respectable physicians gave their certificates as to their belief of her insanity. Indeed, without a strict compliance with this rule, no patient can be admitted to this institution. I am not prepared to decide that the placing of a patient in an insane asylum, by his or her relations, under a belief on the part of the latter of the insanity of such person, and the certificate of two reputable physicians of such insanity, is per se evidence of a criminal conspiracy. To render such act criminal, it must have been done with a corrupt motive. No such motive has been proved to exist in this ease. We are asked to infer that the object was to unlawfully imprison Miss Mintzer. I will not infer that a mother would conspire to imprison her own daughter unlawfully, without evidence. It must be remembered that this institution is not a bastile, which the strong hand of the law can not enter, nor a private mad-house, as they existed in England, where a person could be shut out from the world, and where the voice of friendship, or the aid of relatives could not reach them; but a public institution, where all may enter at proper times and for proper purposes. A writ of habeas corpus will bring any one confined there before either of the five judges of this court within an hour, when the cause of his or her detention can be inquired into and passed upon judicially.

"Nor is there a particle of evidence to show that any attempt was made to obtain the control of any property of Miss Mintzer. The family estate is held by Mrs. Mintzer, the mother, under a deed of trust. The trust, however, amounts

to nothing. Mrs. Mintzer has the absolute disposal of the estate during her life, as well as after her death. So far from this being a conspiracy, or an attempt to obtain any of the young lady's property, it is in proof that the mother offered to settle upon her an annuity of about $500 a year during the lifetime of the mother, provided she would leave the city and reside with other relatives, as to whom she did not seem to have had any disagreements. This offer was declined by Miss Mintzer, unless the mother would make the annuity payable during the life of her (Miss M.), and give security for its payment. The latter proposition was declined by the mother; and it was not until this last negotiation fell through, and because it fell through, that the criminal prosecution was commenced by Miss Mintzer against these relatives. I regret that this feature exists in the case. If there is a conspiracy it may be a question whether we have the proper defendants before the court. If I had any doubt about this case, I would send it to a jury. But as I see no evidence upon which a charge of conspiracy can be sustained, I must discharge the relators."

§ 189. Cruelty to Animals. So on an indictment for cruelly overdriving a horse, if the defendant in the proper exercise of his own judgment, did not think he was overdriving the horse, he must be acquitted.1

§ 190. Disturbing Religious Meeting.-To disturb a religious or public meeting through accident or mistake would not be a crime."

§ 191. Elections-Illegal Voting-Keeping Saloon Open.-So, on an indictment against a minor for illegal voting, the fact that his father had told him that he was of legal age is relevant.3

In Hailes v. State, on a prosecution for the violation of article 178 of the Penal Code relating to the election laws, it was shown that on the morning of the day a special election was to be held, the appellant, who was a saloon-keeper at a voting precinct opened his saloon and kept it open for a short time, but, being informed that it was an election day, immediately closed his saloon, declaring that he was not aware that an election was to be held on that day, and that he had sold no liquor. Under that state of facts the court charged the jury that, "ignorance of the law, or of the time of holding such election, is no excuse for the violation of the law." This was held, error.

WILLSON, Judge. "This appeal is from a conviction for a violation of article 178 of the Penal Code. It was proved that on the third day of July, 1883, an election was held in Smith County to decide whether the citizens of said county should fence against hogs. Defendant, who was a saloon-keeper, on the morning of that day opened his saloon, which was located at Winona, a voting precinct in said county. He was soon informed that it was an election day, and that he was violating the law in keeping open his saloon. He at once closed his saloon, saying that he was not aware that an election was to be held on that day, and that he had not sold anything. It was also proved that the election attracted but little interest or attention in that precinct. Upon this state of facts the defendant requested the court to charge as follows: 'If you believe from the evidence that the defendant opened his saloon inadvertently, or in ignorance

1 Com. v. Wood, 111 Mass. 408 (1873) 2 Com. v. Porter, 1 Gray, 476 (1854).

Carter v. State, 55 Ala. 181 (1876); Jordan

v. State, 52 Ala. 308 (1875.)

4 15 Tex. (App.) 93 (1883.)