Opinion
September 14, 1910.
Benjamin Terk, for the appellant.
John D. Miller, for the respondent.
There is a difference in the power of a private person and a peace officer, without a warrant, to make an arrest in case of a felony. A peace officer has authority to make an arrest without a warrant "when a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it." (Code Crim. Proc. § 177.) A private person is authorized to arrest another for a felony when the person arrested has committed it. (Code Crim. Proc. § 183.)
But there is no distinction between a peace officer, without a warrant, and a private individual in respect to the right to arrest for a misdemeanor. To justify either of them in arresting or aiding in the arrest of a person, without warrant, for a misdemeanor, it must appear that the crime has actually been committed or attempted in his presence by the person arrested. When sued for arrest they must not only show that a misdemeanor has been committed but they must prove that the person arrested committed it. It follows that the question of reasonable cause was not an element bearing upon the plaintiff's right to recover and that the case should have been sent to the jury upon the question whether the misdemeanor was committed or attempted by the plaintiff.
The judgment and order must, therefore, be reversed and a new trial ordered, costs to appellant to abide event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.