Davis v Russell and Others
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1829 |
| Date | 09 February 1829 |
| Court | Court of Common Pleas |
English Reports Citation: 130 E.R. 1098
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 2 Moo. & P. 590; 7 L. J. M. C. (O. S.) 52.
1098 DAVIS V. RUSSELL 5 BINO. 3BB. davis v. russell and others. Feb. 9, 1829. [S. C. 2 Moo. & P. 590; 7 L. J. M. C. (0. S.) 52.} 1. Defendant^ a constable, being told by A. that Plaintiff had robbed her, and the information being countenanced by a supposed intercepted letter which was shewn to him, apprehended Plaintiff, a respectable inhabitant of Cheltenham, at her lodgings, and took her from her bed at night to prison.-The charge proving unfounded, Plaintiff sued him for the false imprisonment; and the Judge having directed the jury to consider whether the foregoing circumstances afforded the Defendant reasonable ground to suppose the Plaintiff had committed a felony, and whether, in his situation, they would have acted as he had done,-Held, that this direction was substantially correct.-2. Held also, that, under the circumstances, the degree of coercion resorted to by the Defendant, was not excessive. Trespass for assault and false imprisonment. Plea, not guilty. At the trial before Qaselee J. last Gloucestershire [355] assizes, the Plaintiff, an elderly female, proved, that on the 27th of January 1827, between ten and eleven at night, the Defendants, without producing any warrant, took her from her bed at her lodgings in Cheltenham, and conveyed her to prison, where she remained till the next morning, when she was carried before Mr. Capper, a magistrate, upon a charge of theft, which was ultimately dismissed. The defence was, that, in the month of November preceding, a robbery had been committed in the house of Ann Hamerton, a young milliner at Cheltenham, with whom the Plaintiff at that time lodged; that upon that occasion the Plaintiff's trunk had been broken open, and that a 101. note, and many other articles, had been taken out. The Plaintiff shortly afterwards went to reside in the house from which the Defendants took her. On the 27th of January following, Miss Hamerton shewed the Defendant, Russell, the superintendant of the Cheltenham police, a letter addressed to the Plaintiff at Miss Hamerton's house, and bearing the Cheltenham post-mark; and alleging, that upon looking in at the ends, she believed it to contain some allusion to the robbery, induced Russell to break it open. The letter, which was anonymous, purported to come from an accomplice in the robbery, residing in London, and demanded money at the hands of the Plaintiff, as a joint perpetrator of the offence. Miss Hamerton also told Russell, that four days after tbe robbery a letter had arrived for the Plaintiff in the same hand-writing, with the London post-mark, and that the Plaintiff had refused to shew it; she then expressed her suspicions of the Plaintiff being concerned in the robbery, and said she thought Russell ought to take her into custody. This, after reading the above letter, Russell, assisted [356] by the other Defendants, proceeded to do; the door of the house being opened to him when he knocked. On cross-examination it appeared, that on the 8th of January preceding, the Plaintiff having found, secreted under Miss Hamerton's bed and on her person, sundry of the articles which had been stolen from the Plaintiff's trunk, took Miss Hamerton before Mr. Capper, the magistrate, charged her with the theft, and identified the articles found under her bed, as the articles which had been stolen from the Plaintiff's trunk. The Defendant was present upon that occasion. Mr. Capper, however, dismissed the charge (a). (a) Miss Hamerton was, on the same evidence, tried and convicted for the robbery at the ensuing Gloucester Spring assizes ; being then sentenced to seven years transportation, she committed suicide the next day. Upon that trial, the anonymous letter, on the credit of which Russell had apprehended the Plaintiff, was proved to have been written by Hamerton. On the proof supposed to be afforded by that letter, the Plaintiff, when charged before Mr. Capper on the 28th of January, had been committed to prison for fifteen days, for further examination ; at the expiration of that time, for five days more, and then dismissed. 5BING.35T. DAVIS V. EUS8ELL 1099 The learned Judge said, that if the constable had a complaint made to him under such cireumatancea as to induce him to-believe it true, he bad a right to take into custody the party complained against, provided the facts were such as to warrant an apprehension; and he desired the jury to consider whether the statement they had heard satisfied them, looking at the letter and the other facta, that the constable had reasonable ground to suppose the Plaintiff implicated in the felony with which she had been charged; and whether, standing in his place, they would have acted as he had done. A verdict having been found for the Defendants, Russell Serjt. moved for a new trial, on the ground, first, that the question, whether or not the constable had [357] reasonable and probable cause for apprehending the Plaintiff was a question of law which ought not to have been left to the jury; and, secondly, that the jury ought to have been directed to consider, whether, supposing the arrest justifiable, the circumstances of the case warranted the degree of coercion resorted to by the Defendants. First, the...
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