MOTIONS in both cases by the respective plaintiffs, Lucinda Burton and Cora B. Heeren, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the denial of plaintiffs' motions to go to the jury upon all the issues in the actions on a trial in March, 1911.
William F. Connell, for the plaintiffs.
Robert A. Kutschbock [Alexander S. Lyman with him on the brief], for the defendant.
The facts in the above cases are practically identical, and they were tried together. There is no dispute about the material facts. The plaintiffs, mother and daughter, residents of Franklin, Penn., purchased tickets from the defendant at that point, entitling them to passage from Franklin to New York city, by way of Ashtabula, the Lake Shore and Michigan Southern and the New York Central and Hudson River railroads, on the 8th day of May, 1908. While passengers upon the defendant's train, and at or near Erie, Penn., the plaintiffs purchased sleeping car berth No. 1, and when the train reached Erie at about ten o'clock they retired to their compartment, disrobed and went to sleep. The train reached Syracuse at midnight, and during the ten minutes that the train remained at the station two police officers entered the car, demanding of the conductor that they be directed to berth No. 1, for the purpose of interviewing the two women who were occupying the berth, alleging that one of them was believed to be Mrs. Guinness of Laporte, Ind., who was at that time alleged to have been
implicated in a series of atrocious murders. The defendant's conductor asked for the authority of these officers, and was told that they were police officers, they at the same time displaying their badges, and upon this assurance the officers were conducted to the compartment where the plaintiffs were sleeping. The officers opened the curtains and had some conversation with the plaintiffs, the latter demanding to know why they were thus disturbed, and the officers told them that they were wanted and commanding them to get up and leave the train, threatening to take them out without an opportunity for dressing. The plaintiffs got up and after putting on a portion of their clothes were permitted by the defendant's conductor to go into the stateroom, where they finished dressing in the presence of one of the officers, the train in the meantime having left the Syracuse station on time. The officers paid their fare to Utica, and defendant's conductor gave the plaintiffs a receipt entitling them to recover the amount of the unused portion of their tickets and advised the plaintiffs to leave the train with the officers without trouble, and this they did at Utica, from whence they returned to Syracuse upon a later train, the officers paying the return fares. At Syracuse the plaintiffs were taken to police headquarters, where they were given over to the matron, and by her stripped and searched, and finally at about four o'clock of the following day they were permitted to resume their journey to New York, it being ascertained that they were not the persons whom the officers were looking for.
This action is brought, not against the officers, but against the defendant railroad company, upon the theory that it was the duty of the defendant to perform its contract of carriage, and to protect the plaintiffs against the indignities and the humiliations to which they were subjected by the officers. The case is peculiarly aggravating; from the evidence it appears that these women, having no connection with the Indiana or any other crime, were treated with great brutality by the officers, who apparently felt that they had a license to forget all that belongs to their office as peace conservers, and to bully these two defenseless women, whom they had been told by telegraph from Rochester were identified with the Indiana crimes, and it would be worth while to deal with them as the facts seem
to warrant, but that case is not here for determination; the question here is as to the duty of the defendant in the premises.
The plaintiffs urge that the right to arrest, in this State, the citizens of another State, for a crime committed against the laws of that other State, is wholly regulated by the Constitution of the United States (Art. 4, § 2, subd. 2) and the act of Congress of 1793 as revised in the United States Revised Statutes (§ 5278) and that this State has no authority to cause the arrest of such citizen without first complying with the requirements of the United States Constitution, for this State does not possess by comity, or otherwise, the right to detain or arrest the citizen of another State. The plaintiff cites many authorities for this proposition, but none of them, we apprehend, goes to the extent of holding that a citizen of a sister State may not be arrested in this State for a crime committed in such sister State until all of the steps have been taken which would justify the rendition of such person. As well say that a man might not be arrested in this State for murder until he has been formally charged with crime by a grand jury. The definition of 'arrest' as given by the Code of Criminal Procedure (§ 167) 'is the taking of a person into custody that he may be held to answer for a crime,' and as it is made the duty of the executive authority of the State, under given conditions, to surrender persons charged with crime in sister States (Code Crim. Proc. § 827 et seq.) we apprehend that the arrest of persons believed to have been guilty of crimes in other States, that they 'may be held to answer for a crime,' is governed by the same rules which apply to citizens of this State, within our own jurisdiction. This is in harmony with that provision of the Constitution of the United States (Art. 4, § 2, subd. 1), which provides that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,' as construed by the court in Kimmish v. Ball (129 U.S. 217, 222), where the court say that 'the clause of the Constitution declaring that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States does not give non-resident citizens of Iowa any greater privileges and immunities in that State than her own citizens there enjoy.'
If we are right in this proposition, we are to view the acts of the defendant in the present cases in exactly the same light that we would view the question if the plaintiffs had been citizens of the State of New York and residing here. That is all that can be fairly asked, that citizens of other States, within our jurisdiction, be treated in the same manner that we treat our own citizens. Section 170 of the Code of Criminal Procedure provides that 'if the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night,' and in the case now under consideration the crime was murder, so that the particular time of the arrest is of no consequence. Section 177 of the Code of Criminal Procedure provides that 'a peace officer may, without a warrant, arrest a person: 1. For a crime, committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.' Section 179 further provides that a peace officer 'may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that a ...