MOORE, P. J. Although I concur in the reversal of the judgment as against defendant Bamage, I dissent from that part of the majority opinion affirming the judgment as against defendant Puissegur.
The complaint alleged the false imprisonment of respondent by a number of defendants. Judgment ivas entered against only two: Helen Bamage and B. P. Puissegur. They have taken separate appeals. That of Miss Bamage is correctly decided by the majority opinion. I shall now endeavor to demonstrate that because of the public interest as well as [515]the injustice to the officer the judgment against him should also be reversed.
On the day of the arrest appellant Puissegur and one William Johnson, police officers, had been assigned to the “Warrant Squad” whose duties were to serve warrants of arrest. They received in the regular course of their duties the warrant for Albert Walton attached to which were memoranda that the party accused resided at 119 East Tichenor Street in Compton. The notations contained the further information that he was a printer; that he might deny his identity; that his wife's sister, whose name and telephone number were attached, could identify him; that he had at one time owned a sign shop in Palm Springs. After receiving the warrant Puissegur was advised by the wife’s sister that the man sought for was a blond, five feet four inches to five feet eight inches tall, of English descent, slender, weighed about 140 pounds and was between thirty-five and fifty-five years of age. After attaching such data to the memoranda already with the warrant, the officers called at the Compton address and found respondent. Upon his admission that his name was Albert Walton he was placed under arrest and lodged in jail. After two days and nights he effected his release presumably by depositing bail. At the preliminary hearing after a witness had stated that plaintiff was not the accused in that ease the complaint was dismissed and respondent was discharged. This action followed.
There was no reckless disregard of the rights of respondent in making his arrest. A reasonable degree of care was exercised in the effort to ascertain his identity. Not only did the officers carry his name and address but respondent admitted he was Albert Walton. The warrant had been issued in January, 1935, for failure to provide for minor children. At, that time respondent had a minor child. On the night of his arrest in March, 1942, he told the officers that he had had trouble with his wife and was living separate and apart from her. The officers testified that he said he was divorced. The description of the accused furnished to the officers contained the word printer, which sounds like painter. It referred to Albert Walton as owner of a sign shop: respondent was a painter. It described him as five feet four inches to five feet eight inches in height: respondent was five feet nine inches. They were looking for a blond: respondent has blue eyes, [516]light complexion and at the trial in 1943 had white hair. While they searched for a man of 140 pounds in 1935, in 1943 respondent weighed 165. In all respects the description of the accused was either identical with, or closely approximated, that of respondent. This supplied the probable cause for the arrest. Puissegur exercised reasonable care to identify his party. Having a warrant valid in form and issued by a court of competent jurisdiction it was his duty to execute it and in so doing he incurred no liability. (Malone v. Carey, 17 Cal.App.2d 505 [62 P.2d 166]; Kalish v. White, 36 Cal. App. 604 [173 P. 494] ; Pankewicz v. Jess, 27 Cal.App. 340 [149 P. 997].) To hold in jail a person bearing the name of the accused, pursuant to valid process, after exercising due diligence, under the honest belief that the arrestee is the party named in the warrant the officer incurs no liability. (Schneider v. Kessler, 97 F.2d 542.) A refusal by the officer to serve such a warrant would have subjected him to punishment for contempt. (Panhewicz v. Jess, supra.) An officer is justified in making the arrest of a person to whom the name applies with complete accuracy although he may suspect that the person designated is not the accused. (Rest. Torts, vol. I, p. 286.)
The fact that he had a middle name ivas immaterial. Men are generally called by their first names. The law recognizes but one given name and the omission of the middle name or a mistake in the initial letter thereof is not material. (Cox v. Durham, 128 F. 870 [63 C.C.A. 338].)
The claim of bad faith on the part of the officers is based upon the contention that respondent protested his innocence at the time of arrest. No such reward should be accorded to deceit of, or resistance to, an arresting officer. Since the vilest of wretches have made solemn protestations of innocence, the only safe guiding rule for courts to follow in a case of false imprisonment is to determine whether probable cause is or is not shown. If declarations of nonidentity were heeded, such disavowals would be likely to result in the defeat of justice and to incur liability on the part of the officer; whereas, if probable cause is shown, the honest officer acting in good faith will be protected for fulfilling his bounden duty. (Michel v. Smith, 188 Cal. 199 [205 P. 113].)
Although many situations arise wherein the officer should investigate the claims of asserted innocence, the law does not [517]require him to pursue the inquiry requested by the person who reasonably appears to be the party named in the warrant or who has been pointed out as a felon by a responsible person, although no warrant has been issued. The duty to make the arrest does not depend upon the results of further investigation. (Dowdell v. Owl Drug Co., 121 Cal.App. 316, 319 [8 P.2d 890].) The interests of public safety do not require that the officer pursue inquiry further at the request of the party about to be arrested. He is required to possess only sufficient information to constitute probable cause. (Itid.) In determining whether there was probable cause for the arrest Puissegur was not called upon to show that he exhausted all sources of information suggested by respondent. (Johnson v. Southern Pacific Co., 157 Cal. 333, 338 [107 P. 611].) Had the parties to whom respondent referred denied that he ivas the person named in the warrant, the officers would not have been obliged to accept the denial and to release him. It often occurs that a wife’s fury has abated by the time of her husband’s arrest for neglect and she then joins in his effort to defeat the charge.
In reaching a determination that there was probable cause the court is to be governed by the circumstances of the officer at the time he came face to face with the person who appeared to be the object of his search. If such circumstances were sufficient to induce a reasonable person acting impartially and without prejudice to believe that he had found the accused party, probable cause for the arrest was established. (Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 422 [32 P.2d 430].) Neither was the officer’s defense defeated because at the trial it ivas shown that the accused was not the party named in the warrant. Officers employed to make arrests are not required to be doctors of the law or to possess the genius of Sherlock Holmes. They are required only to be reasonably intelligent and to exercise reasonable diligence. If they undertook to inquire into every clue as to the identity of a person believed to be the accused, they would thereby usurp the powers of the committing magistrate and delay the vindication of the law. (Dunlap v. New Zealand Fire & Marine Ins. Co., 109 Cal. 365, 371 [42 P. 29].)
Every citizen owes allegiance to the general welfare to the extent of suffering some inconvenience if need be. When crime stalks through the land the sheriff may increase his [518]manpower by ordering any able-bodied male person above the age of eighteen years to join the ranks of a posse comitatus (Pen. Code, § 150) to apprehend a hunted miscreant, even though such assignment may require one to sleep in a bog and to face the machine gun of a Dillinger. If such service may be exacted by the sovereign power to protect the honor of the state or to insure the safety of society, it is with poor grace that one seeks pecuniary compensation for the discomfiture of two days’ confinement in a jail because he was unfortunately imprisoned under the honest belief of the officer that he was the author of a serious crime. To be subjected to such inconvenience, however regrettable, is but one of the infrequent penalties of membership in a complex society and should be endured with stoicism.
The judgment should be reversed with instructions to dismiss the action.
A petition for a rehearing was denied November 16, 1944. Moore, P. J., voted for a rehearing as to appellant Puissegur. Appellant Puissegur’s petition for a hearing by the Supreme Court was denied December 21, 1944.