5 O d. mi 15 C30 SO ^ILIBRARYQr^ ^^IIIBRARYQ^ 3\\V^ '^'d/OJIlVDJO^ '^.i/ojnvjjo^ ^ ^OFCAIIFO/?,^ i/^ ^OFCAIIFO/?^ aaiH^ ,^WE•UNIVERV/, o ^\\E•UNIVERS/A o "^AaaAi %J13AI aOSANCElfj> X P 55 -— 'R 1^^ = < V >J!LJ ■NCElfx^ %a3AiNn-3Wv* -^VLIBRARYQ^ ^ILIBf ^' '^.aojn ^OF-CAIIFO/?^ ^OF- CA >&AiivaaiH^ ^(?Aav -^ILIBRARYOr^ '%0JllV3JO->' 'J m //).luw\Jan.^\>^i' .\WEI)N1VER% ^lOS-/ StUBRARYQr^ ^ILIBRARYp/;^ ^^OJIIVJJO'^ ^Oiim-i^'^ ■< ,^\■ 13 ^. .^.OfCALIfOS'*, ,^OFCAllf(% >- < CO I o-- ^WEUNIVERS/A o ^lOSANCElfJ> o %il3AINfl3WV -^lUBR' c^ ^ AWE UNIVER5-/A o e. <: &Aavajin# '^ CONTENTS PAGE Table of Cases ix CHAPTER I. The Right of Personal Liberty 1 Definition. — Magna Charta. — Petition of Right. — Act of 1664. — Habeas Corpus Act. — English Bill of Rights. — Excessive Bail Prohibited. — American Bill of Rights. — Due Process of Law. — The Limit of Gov- ernmental Control. CHAPTER n. The Issuance and Service of Legal Process . 8 Definition. — Jurisdiction. — Procured by Stratagem and Fraud. — Procured by Illegal Arrest. — Foreign Vessels. — Ceded Territory. — Search Warrant. — Illegal Seizure does not affect Admissibility of Evidence procured thereby. — Bench Warrant. — Warrant of Arrest. — What Officer Must Know. — Necessity of Returu. — Life of Warrant. — Requisites of a Valid Warrant. — When Valid without Seal. CHAPTER IIL Who May Issue a Warrant 32 Mandamus. — Comjjlaiut. — Necessary Evidence. — Constitutional Provision. — To Whom Directed. — Private Person. — Officer. — Delegating Authority to Serve. — Arrest for Contempt. VI CONTENTS. CHAPTER IV. PAGE What Constitutes an Aruest 39 Definition. — Authority. — Necessary Acts. — Control. — Words of Arrest. — Touching. — Time of Arrest. — Place of Arrest. — Notice of Authority. — Resisting Arrest. — Officer's Duty After Arrest. — Escape. — Liability of Officer. CHAPTER V. Arrest with Warrant 56 Party Named. — Officer's Protection. — Valid Warrant. — Void Warrant. — Taking Life. — Interference. — Lia- bility of Officer's Assistants. — Taking Prisoner before a Magistrate. — Officer's Right to Release Prisoner. — Offi- cer's Right to Detain Prisoner. — Impossibility as a De- fence. — Place of Confinement. — Exercise of Officer's Judgment. — Civil Arrest. — Debtors. — Fraud. — Affidavit. CHAPTER VL Arrest without a Warrant G8 Private Person. — Felony. — Resisting Private Person. — Hue and Cry. — What is a Felony. — Misdemeanor. — What is Breach of the Peace. — Use of Force. — Officer. — Violation of City Ordinance. — Presence. — Outside of Jurisdiction. — Entering Doors. — Entering House to Arrest for Peaceable Drunkenness. — Deserters from Army. — Arrest to Prevent Crime. CHAPTER VII. Breaking Doors to Make an Arrest .... 89 Man's Habitation is Sacred. — Notification, Demand and Refu.sal. — Civil Process. — Criminal Process. — Privnte Person's Right to Break. — Who is Protected. — Breaking to Prevent Escape. — Inner Doors. — When Usual Inner Door is Legal Outer Door. — What is a Dwelling House. — Use of Portion as Dwelling. — Combined Residence CONTENTS. VI 1 PAGE and Place of Business. — Effect of Absence. — What is a Breaking. — Doors. — Windows. — Otlier Openings. — Enlarging Opening. — Entrance by Deception. — Effect of Illegal Breaking on Arrest. CHAPTER YIII. Force in the Act of Arrest 101 Killing. — When Justifiable. — Felony. — Misdemeanor. — Eesisting Arrest. — Fleeing from Arrest. — Excessive Force. — Right of Officer to Use Club. — Right to l^emand Officer's Number. — Use of Handcuffs. — Abuse of Hand- cuffs. CHAPTER IX. DiSPOSIXG OF THE PRISONER 114 Confinement. — Termination of Officer's Control. — Taking through Street Scantily Attired. — Searching the Prisoner. — Removal of Clothing. — What may be Taken from Prisoner. — Physical E.xamination. CHAPTER X. Arrest in Extradition Proceedings .... 120 Extradition and Rendition Distinguished. — Definition. — Authority. — Discharge and Re-arrest. — Examination. — Scope of Habeas Corpus Writ. — Evidence. — Proced- ure. — Matters Inquired Into. — Comity. — Treaty. — Jurisdiction Procured by Stratagem. — Other Jurisdic- tional Questions. — Interstate Rendition is OI)ligatory. — Preliminary Proceedings. — Lies for Crime only. — Who is a Fugitive from Justice. CHAPTER XI. Evidence Necessary to Establish the Offence 132 Proof Must be Beyond Reasonable Doubt. — Burden of Proof. — Burden of Giving Evidence. — Burden of Proof Vlll CONTENTS. PAGE Never Shifts. — Presumption of Innocence. — Burden to Show Excessive Force. — Burden to Show Offence in Officer's Presence. — Burden to Show Authority to Arrest. — Burden to Show License. — Insanity. — Character. — Conduct as Evidence of Guilt. — Possession of Stolen Goods as Evidence. — Intoxication. — Confessions. — Criminal Capacity. — Dying Declarations. — Best Evi- dence Rule. — Ignorance of the Law May Excuse. CHAPTER XII. Exemption from Arrest 150 Sovereigns. — Diplomatic Agents. — Commercial Agents. — Government Employees. — Other Exemptions. — When Privilege may be Waived. — Writ of Protection. — Per- sons Under Guardianship. — Statutory Exemptions. CHAPTER XIII. False Imprisonment 160 What Constitutes. — Pestraint. — Consent. — Restraint Must be Total. — May be by Words. — Serving Lawful Process Improperly may Constitute. — Party Must be Conscious of Restraint. CHAPTER XIV. Trespass 167 Definition. — Who is Trespasser. — Trespass vi et armis. — Accidental Acts. — Criminal Actions for. — Criminal Intent. — In Arrest for Intoxication. — Private Persons Assisting Officer. — When Liable. — Refusing to Assist. — Trespass ab initio. Index 175 TABLE OF CASES [References are to pages.] A BBOTT V. Booth Ackerson v. People 28 Barnard r. Bartlett 90, 93 139 Barnes v. Peters 96 Adams v. New York 16 Barrett v. Copeland 24 Aga Kurhboolie Mahomed V. Bass V. State 99 Reg. 94 Basye v. State 138 Agnew V. Jobson 118 Batchelder r. Curriei 21 Ahem c. Collins 41 Bates V. Com. 50 Alderich v. Humphrey 41 Beaverts i'. State 109, 110 Allen r. Crofutt 173 Beers v. Beers 4 V. Gray 7,19 Bell V. State 5, 139 17. Martin 93 Bellows V. Shannon 47, 48, 49 r. State 5 Belote V. State 140 V. U. S. 135 Benjamin v. Hathaway 23 Allison V. Rheams 22 Bessey v. Olliott 168 Almy V. Wolcott 66 Bevilfe v. State 79 Amadon v. Mann 66 Bigelow V. Stearns 167 Anderson i'. Roundtree 154 Bingham i". State 33 Andrews i'. People 143 Bird V. Jones 161 Aneals v. People 138 Birr v. People 136 Angelo I'. People 145 Black well v. State 118 Appleton V. Hopkins 64 Blake's Case 156 Archibald v. State 146 Blatcher v. Kemp 15 Arneson v. Thorstad 60, 61 Blatt V. McBarron 169 Arnold v. Steeves 47, 60 Biewitt V. Phillips 167 Ashley r. Dundas 59 Blight V. Fisher 155 Ashley's Case 68 Block, In re 130 Attaway v. State 133 Blue V. Com. 23 Bond V. State 5 -gACON V. U. S. Baldwin v. Murphj' 17 Bonner, In re 27 40 I'.ookhout V. State 28 Ballard v State 85 Borrego v. Ter. 134 Bane i\ Methuen 35 Boutte V. Emmer 79 Bank of Columbia v. Okely 4 Bowling tv Com. 37, 109 Barclay v. U. S. 71 Boylston v. Kerr 81 Barker, Ex parte 9 Brewster c. People IGO X TABLE OF CASES [References are to pages.] Bright V. Patton 78 Chase v. Fish 151, 154, 157 Brock V. Stimson 23, 59 03, 11.5, Chastaug v. State 17 165, 109 Clark V. Brown 138 Brockway v. Crawford 69 V. Cleveland 54 Brooks V. Cora. G8, 78, 91, 106, 139 V. Woods 19 V. State 89 Clarke v. May 11,56 Brown v. Beatty 169 Clay V. State 13 Ex parte 9 V. United States 86 V. Getehell 154, 156 Clement v. Dudley 66 V. Howard 19 . V, State 106 In re 127 Clifford, Ex parte 53 V. Kendall 167 Cline V. State 141 i\ Levee Com'rs 4 Clinton v- Xelson 62 V. State 5 Cochran v. Toher 112, 113, 114, V. Weaver 85, 107 115 Brown's Case 129 Codd V. Cabe 29 Browning v. Abrams 120 Cody V. Al)rams 164 Brushaber v. Stegeniana 41 Cohen i'. Huskisson 74 Bryan v. Bates 76 Cole V. Hindson 27 Bryant v. State 145 V. State 146 Burch V. Franklin 69 Colee V. State 141 Burke v. Bell 60, 114, 115 Collins V. Lean 1.3, 14 Barley v. Griffith 31 Comer v. Knowles 160, 162 Burns v. Erben 78 Com. V. Acton 17 V. State 106 V. Barhight 35 Burton v. State 143 V. Bishop 146 Butler V. Washburn 53 V. Black 30,37 Butolph V. Blast 79, 83 V. Borden 35 B. & W. E. Co. V. Dana 70 V. Brigham 139 v. Burroughs 142 QABELL V. Arnold Caffrey v. Drugan 29 V. Carey 51, 70 63 V. Carroll 70 Cahill V. People 89 V. Casey 145 Cameron v. Lighffoot 22 V. Clieuey 77, 170 Campbell v. Sliermaa 21 V. Choate 134 Canceini v. People 5 V. Conlin 10, 82, 103 Cannon, In re 127, 129 V. Cooley 47, 49, 50 Cantrill v. People 52 V. Coughlin 170 Carlton r. People 134 t'. County Prison 90 Carr v. State 69, 78, 126 V. Grotty 25, 26, 28, 57, 58 Carraby v. Davis 65 V. Cullen 142 Carter v. State 100 r. Culver 142 Gary v. State 59 V. Dana 16 Caudle v. Seymour 28 V. Doane 148 Chaffee v. Jones 157 V. Dorsey 141 Chaudler v. Rutherford 77 V. Drew 67 TABLE OF CASES xi [References are to pages ] Com. I'. Farrell 53 Com. V. Smith 17 V. Field 37 V. Stebbins 148, 149 V. Foley 74 V. Stephenson 100 V. Foster 15, 28, 36 i". Strupney 101 V. Greer 107 V. Thurlow 136 V. Hagenlock 141 V. Tibbetts 17 V. Haney 146 V. Tobin 23, 78, 81, 172, V. Harris 137 173 V. Hastings 165 I'. Tracey 52 V. Hawes 125 v. Wait 9 V. Hewes 47,49 V. Walker 139 V. Holstine 136 V. Wiird 28 V. Howe 141 V. Weathers 46, 111 V. Irwin 90 V. Wilcox 28 V. Johnston 128 I'. Wilson 138 i". Kenney 1.39 V. Wright 126 V. Knapp 143, 144 Commercial Exch. Ban k v. Mc- V. KosIofE 151 Leod 117 V. Leonard 138 Compton V. Wilder 126 V. Linn 76 Conley v. Com. 141 V. Lucy 14 Connor v. Com. 34 V. Lynn 34 Conoly V. State 43 17. McDermott 139 Conraddy v. People 78, 85, 107 V. JIcMahon 139 Copeland v. Islay 31 V. McXall 71 Cortez v. State 50 V. Jlead 145 Coupal r. Ward 164 V. Mika 146 Courtoy v. Dozier 41 V. Miller 55 Coxson V. Doland 153 V. Montgomery 140 Coyles V. Hurtin 45, 170 V. Jloran 28 Crepps V. Durden 21 V. Morihan 52, 115 Croom V. State 69 V. Murray 22 Crosby v. People 140, 141 V. Xickerson IfiO Cryer f. State 69, 78 V. O'Brien 137 Curtis I". Hubbard 98, 100 I'. O'Connor 76 V. Phillips 14, 34 J)ANOVA]Sr r. Jones Darling r. Kelly 77 t". Preece 143 58 V. Randall 140 Daughdrill v. State 146 I". Redshaw 72 Davidson v. Xew Orleans 4 V. Reynolds 89, 90, 91, 93 Davis V. Burgess 73 V. Ridgway 84 V. Pac. Tele. Co. 80 V. Roark 19,23 V. State 95,96 V. Roberts 146 r. U. S. 69, 77, 136 V. Ruggles 83 Day t'. Day 73 I'. Sheriff 54,111 Delim r. Ilinman 23, 36, 112, 116, V. Silvers 72 1 171 Xll Dennis v. People Devine, Ex parte Devries v. Suniniit Dickinson v. Farwell Diers v. Mallow Dietrichs v. Schau- Dilger V. Com. 80, Dillon V. O'Brien Dodds V. Board Doering v. State Donahoe v. Shed Doo Woon, In re Dougherty v. State Doughty V. State Douglass V. Barber Dow's Case Doyle V. Kussell Drennan v. People Duffy V. People Dunton v. Halstead Dupont V. Pichon Durant, In re D Wiggins v. Cook Dj'e V. Com. Dver V. State J] AMES V. Johnson Earl V. Camp Edginton v. U. S. Edwards v. Elliott Eilenbecker v. Plymouth Co. Ela V. Shepard Elam V. Lewi^ Elder v. Morrison Emerick v. Harris Emer}' v. Hapgood V. Chesley Englehardt i'. State English V. Caballero Entick V. Carrington Evans v. State JTAIRCHILDt'. Case Faire v. State Farley v. State TABLE OF CASES [References are to pages.] 100 123 Farnam v. Feeley Fatheree, Ex parte 69 145 65 Ferez, In re 121 122, 124 156 Ferguson v. State 99 78 Terrier, Petition of 6 36, 171 Fetter, In re 128 100, 107, 109 Field V. Ireland 41 117, 118 Filer v. Smith 77,78 68 Find lay v. Pruitt 106 78 Firestone v. Rice 112, 113, 116, 22, 28 170, 171 9 Fisher v. McGirr 7, 11 170 V. Shattuck 27 36 78 Flagg V. People Fleetwood v. Com. 143 79 9 Floyd V. State 54 55 Ford V. Breen 81 18 V. State 139 144 Forrester v. Clarke 71 158 Forster's Case 107 150 9 Foss, Ex parte V. Hildreth 125 158 24 Foster v. Neilson 125 148 Frank v. State 100 73 Franklin v. State 139 Frazier v. Turner 19 19 19 138 French v. Bancroft 43 Frost V. Thomas 50 Fulton V. Staats 77, 106 6 ith Co. 6 19 151 171 4 7, 11, 19,20 44 141 150 7, 11 137, 146 Q.ABLICK V. People Galvin v. State 140 72 Gardner v. Hosmer 24 V. Jessop Garner v. State 152 137 Garver v. Ter. 53 Gasset v. Howard 22 Gates I'. People Geary v. Stephenson Genner v. Sparks George v. Fellows V. Radford 144 69 43, 94 159 40 Gibson v. State 138 5 53 Giroux V. State 112 116 Glazier v. Stafford 152 132, 135 Godfrey v. State 145 G.)l(l V. Bissell Golden v. State Goldsmith v. Baynard Gollobitsch V. Rainbow Goon Bow V. People Gore V. People Grainger i". Ilill Grant r. Shaw Gravely v. State Gray v. Com. Green v. Kennedy V. Kindy Greenough, In re Griffin V. State Griswold v. Sedgwick Groome v. Forrester Grosvenor v. Inhab. etc Grumon v. Raymond Guidrat v. People Gurney v. Tufts JJABERSHAM v. State 59, 69 Hackett i'. King 164 Hadley v. Perks 78 Haggerty v. Wilber 94 Hall V. State 138 Hallinger v. Davis 5 Halstead v. Brice 28 Hamilton v. Calder 77 Handcock v. Baker 82, 87, 116 Handley v. State 107 Hann r. Lloyd 19 Harden v. State 133 Hardtke v. State 138 Hardy v. Murphy 75 Harft V. McDonald 75 Harlan, Ex parte 152 Harris v. Hardemann 9 V. McReynolds 26 V. People 5 Harrison v. State 98, 100 Haskins v. Young 30 Hathaway i'. Johnson 65 Hawkins i'. Lutton 80 Harden v. Songer 36 Hayes v. Mitchell 79 85. 106. 10 TABLE OF CASES [References are to pages.] 19, 41 Head i'. .Martin 106, 109 Heckman v. Swartz 152 Hedges v. Chapman Hedrick v. State 139 Heed i\ State 133 Heinrich, In re 42 Heldt r. State 24 Hempstead Co. v. Graves 133 Henderson v. Com. 132 Hensley v. Rose 59 Herring v. Boyle 24 V. State 128 Hershey v. O'Neill 139 Heyward, In re 26 Hibbs, Ex parte 7 Hibler v. State Hill V. People 14, 28, 58 V. Taylor 17 Hines v. Chambers 7 Hirschmann v. People Hiss V. Bartlett Hitchcock V. Baker V. Holmes Hobart v. Hagget Hobbs V. Getchell Hogan V. Stophlet Hoge V. People Hoke t'. Henderson Holcomb V. Cornish Holland v. State Ho I ley V. jNIi.x Hollon I'. Hopkins Holmes v. Jennisoa Hooker v. Smith Hopt V. Utah Horton r. Moggridge Housh V. People Hubbard v. Garner V. Mace V. State Hudson's Case Ilurn, Ex parte Hurtado v. California Hussey v. Danforth Hutchinson v. Sangster Xlll 108 22 77 99 140 122 143 32 74 23 165, 166 162 43 128 125 130 5,6 43 19 133 154 54 102 167 157 39 140 4 38, 76 55, 133 68, 69, 77 55 125 171 140, 141, 142 152 52, 54, 56 117 94 75 65 117 4 67 59, 60 XIV TMASON V. Cope Ingle V. Bell 71 Iiiglis V. Sailors Snug Harbor 150 TABLE OF CASES [References are to pages.] 110 JACKSOX V. State V. Wood 107 4 James v. State 106 Jamison v. Gaernett 79 Jenkins v. State 141 Jennings v. Fundeburg Johnson v. State 1G8 28 V. Stewart 26 V. Tompkins Johnston v. Com. 162 102 Jones V. Jones 41, 42 V. Perry 4 V. Kobbins 4 V. State 31, 52, 133 Jourdan v. Donahue 129 Journey )'. Sharpe Joyce V. Parkhurst 41 82 Jndson v. Reardon 59, 79 J^AINE, In re Keating v. People 125 140 Keith V. Tuttle 46 Kelsej' V. Parmalee 15 Kendall v. U. S. 9 Kennedy v. Dundee 22 V. State 68 Kent V. Miles 61 Ker*. Illinois 10,126,127 V. People 9 Kerbe}' v. Denbey 103 Kernan v. State 43 Kimball, In re 152 Kindred v. Stitt 47, 69, 114 King V. Berchet 4 V. Ward 172 Kirbie e. State 30, 37, 77 Kirk V. Garrett 77 Kleinschmidt v. Dunphy 5 Knot r. Gay 71 Kurtz V. Moffitt 86 J^AGRAVE'S Case Lake's Case Lancaster v. State Lander v. Miles Lannock v. Brown Lascelles v. Georgia V. State League v. State Ledbetter v. State Lee V. State Leggat V. Tollervey Leigh V. Cole V. Webb Leighton, Ex parte Levi, Ex parte Lev}' V. Edwards Lewis V. City of Raleigh V. State Liggitt V. People Linehan v. State Lockwood V. Coysgarne Loegrove v. State Long v. State Lopez & Sattler's Case Lott V. Sweet 9 24 141 106 90 126 126 5 31,46 116,132 17 112, 113, 118 13 156 46, 155 110 62 47,78 136 139 150 136 68, 85 9 87 122 45 9, 126, 127 79, 80 46 ]\^|ACDONXELL, In re Mackalley's Case Mahon v. Justice Main v. McCarty Malcolmson v. Gibbons V. Scott 128 Mangold c. Thorpe 56 Marsh v. Smith 78 Marshall v. Critico 151 Marshelsea, The . 21 Matthews v. State 100 May V. Shumway 155 INLiyhew v. Parker 59 Mayor of Norwich v. Berry 152 McCandless v. State 74 McCarthy v. De Armitt 69, 78 McCourt V. People 99, 102 McCracken v. Ansley 41, 43 McCullough V. Com. 82 McDutfie V. Beddoe 64 TABLE OF CASES [References are to pages.] XV McGough V. Wellington 2-t McKay v. Ray 158 McKenzie v. Gibson 6'J McKnight, Ex parte 126 McLennon v. Ricliardson 82, 90 McMaliaii i'. Green 1G3, 170, 171 JIcManus, Ex parte 30. 37 McNeil, Ex parte 152, 155 JIcNeil, The Case of Archibald 155 ISIcQueen v. State 55 Jlead V. Haws 25, 26 Meek v. Pierce 15, 36 IMerritt v. Openheiin 65 Mesmer v. Com. 106, 109 Mex. Cent. Ky. v. Pinkney 9 Meyer v. State 162 Middleton v. Price 23 Miers v. State 51 Miles, In re 126, 127 Miller v. Foley 26, 28 IMillett I'. Baker 14, 31, .58 Missouri, etc. R. Co. v. Warner 59 85 171 12 9 51, 109, 145 131 25 39 146 Robinson Mitchell V. Lemon V. State V. Tibbetts Mix V. People Mockabee i'. Com. Mohr's Case Money i". Leach Montgomery Co. v Moore v. State Morrill, Ex parte 77 Morton v. Skinner 128 Mosely v. State 55 Mowr}' V. Ciiase 41 Mullen V. Brown 164 Mundini v. State 75 Jlurdock I'. Ripley 106, 109 Murphy v. People 4 Muscoe r. Com. 4, 59, 77 Myall V. Wright 65 J^EAGLE, In re 112 Neal V. Joyner 69, 77 Nelson v. State 11 Neufeld v. Rodeminski 104 Newell V. Whigliam 23 New Orleans v. U. S. 13 Nichols V. Nichols 24 V. Thomas 164 North V. People 106 QCEAN STEAMSHIP V. AVilliams CO. 59 O'Connor ?'. Backlin 117 Olmstead r. Raymond 54 O'Malia i'. Wentworth 27 O'Neil V. State 147 Osborn r. Com. 143 Oystead v. Shed 91, 9 2,95 172 pADFIELD V. Cabell Paetz V. Dain 31 87 Painter v. People Papineau v. Bacon Parris v. Com. 139 169 138 I'arsons ?). Lloyd 22 Pastor V. Regan Patterson v. State 106. 59 109 Paul V. Vankirk 2 •, 36 Payson v. Macomber 163 Pearce i". Atwood 19, 30 People V. Adams V. Ah Teuiig 17 52 V. Barker 143 144 r. Bartz 74,7 S, 80 r. Bemmerly 136 V. Burt 7 r, 78 V. Campbell 1'. Carlton 27 152 106 V. Chase 146 V. Cowteral 96 V. Cross 126 V. Curtis 121 136 V. Davis 145 V. Donahue 121 V. Duck 139 V. Dupree V. Durfee 96 106 )'. (Jelabert 143 r. Godfrey 13 V. Halev 51 XVI TABLE OF CASES [References are to pages.] People r. Harrington 116 Poulk V. Slocum 19 V. Haug 79 Powers, In re 78 V. Hennessey 133 V. Russell 133 I". Hockstim 69,78 Pratt V. Hill 59 V. Husband 148 Prell V. McDonald 33 V. Johnson 75, 76 Pressley v. State 101 V. Kerrigan 5 Price V. Seeley 71 V. McCoy 118, 119 Pruitt V. Miller 170 V. McCrea 139 Purrington v. Loring 24 V. McLaughlin 137 Puryear v. Com. 145 V. McLean 30, 37 V. Mead 28 QUEEN V. Downey & Jones 18, V. Miller 141 28 V. Moore 30, 47, 49, 50 Quinn v. Heisel 80 V. Morehouse 71 V. Murray 4,5 J^ADFORD V. State 146 V. Nolan 102 Rafferty v. Peopl e 7, 24, 57 V. Olmstead 145 Ramsey v. State 80 106, 109 V. Palmer 133 Randall v. State 53 V. Payment 9 Rawlins i'. Ellis 46, 153 V. Pichette 134 Read v. Case 86, 90 V. Plath 133 Reed v. Rice 15, 171 V. Pool 51,78 Regan v. N. Y. etc. R R. Co. 87 V. Pratt 75 Reggel, Ex parte 128 V. Rose 11 Reg. V. Brown 171 v. Rowe 9 V. Bird 101 V. Sanford 146 V. Downey 18,28 V. Shan ley 29, 30 V. Ingham 4 V. Tarbox 133 V. Rowton 137 V. Townsend 144 V. Smith 145 V. TriiU 71 Reid V. Ham 126 V. Van Dam 138 Reifsnyder v. Lee 117 V. Walker 141 Reneau v. State 85, 106 107, 108 V. Warren 20 Respublica v. De Longcha nps 150 V. Weaver 146 Ressler v. Peats 31, 81 V. Wilson 47,50 Reuck V. McGregor 69 V. Young 141 Rex V. Backhouse 102 Phillips V. Fadden 63, 115, 170 V. Brice 100 Pigman v. State 141 V. Burdette 133 Pike V. Hanson 162 V. Carroll 141 Pinkerton v. Verberg 75 V. Drummond 145, 146 Pitt V. Webley 46 V. Hall 148 Plasters v. State 47 V. Hyams 100 Pond V. People 96 V. James S8 Popejoy, In re 81 V. Kendall 15 Porter v. Swindle GO V. O'Donnell 118 TABLE OF CASES XVll [References ire to pages.] Kex V. Osmer 58 Shafer v. Mumma 75 V. Pike 146 Shanley v. Wells 71, 78, 84 89 135 V. Pitman 141 Shannahan v. Com. 140 V. Smith 82 Shannon r. Jones 40,41 V. Smithies 1;J9 Shattuck V. State 53 V. Spriggs 99, 101 Sheldon v. Hill 19 V. Turner 96 In re 123 V. Walker 83 Shields v. State 17 V. Warickshall 144 Ship Richmond v. U. S. 9 V. Weir 28, 36 Shorland v. Govett 23 172 Reynolds v. Orvis 27 Short V. Symmes 136 V. People 13 Shovlin r. Com. 51, 106 Rickers v. Simcox 117 Siegel V. Connor 69 Rinimer v. Green 152 Simmerman r. State 69 Rischer v. Meehan 107 Simmons v. Vandyke 59 Roberts v. Reilly 130 Simons v. People 146 Robinson, In re 9 Sims v. State 100 V. People 143 Skidmore v. State 106 V. State 44 Slanson, Ex parte 127 Rockwell I". Murray 82 Slomer v. People 164 Roderick v. Whitson 79 Smith V. Clark 29 Rohan v. Sawin 59 V. Jones 154 Rosen v. Fischel 19 V. State 140 Rowan v. State 4 Smythe v. Banks 157 Russell V. State 80 So. P. R. Co. V. Johnson 139 Russen i'. Lucas 43 Spalding v. Preston 117 Rutland Lank r. Barkei 158 Spies v. Illinois Sprigg V. Stump 15 34 C AGO V. Wentworth Salisbury v. Com. 4 Staff, In re 5 69 Stalcup V. State 137 Sanborn r. Carleton 37 Stanley, Ex parte 121 Sandow v. Jarvis 92 Starchman i'. State 17 Sarah Way, In re 75 Starr v. Com. 14.5 Savage v. State 145 V. U. S. 3 , 48 Schwabacher v. People 98, 141 State V. Aaron 145 Scircle v. Neeves 5L , 60 V. Adams 145 Scott V. Eldridge 78 V. Ah Chuey 119 Ex parte 9 V. Ah Lee 146 V. People 145 I". Albee 5 V. State 98 I'. Anderson 46, 109 Searles v. Viets 41 ,43 V. Archibald 72 Secor V. Bell 151 V. Atkinson 17 Sedgebeer v. Moore 64 V. Baldwin 146 Semayne's Case 90 , 93 r. Bates 55 Sewell V. State 139 !•. Beebe 52 Shadgett v, Clipson 27 V. Belk 51 112 XVI 11 TABLE OF CASES [References ire to pages.] State V. Bland 105, 109 State V. Glover 126 V. Boon 98, 99, 100 V. Graham 119, 144 V. Bradford 143 V, Grant 77 V. Bradiieck 139 V. Griswold 16 V. Brewster 9 V. Groning 99 V. Brown 53, 1-13 V. Gu}' 79 V. Bryant 106, 107 V. Hall 126, 130 V. Buck 155 V. Harvey 133 V. Caldwell 47, 49 V. Hecox 99 V. Campbell 71 V. Henry 99, 103 V. Cantieny 57 V. Holmes 148 V. Carmen 5 V. Hooker 52 V. Chee Gong 134 V. Hudson 128 V. Clirisp 76 V. Hull 137 V. Conners 99 V. Hunter 53, 170 V. Craine 146 V. Hutchinson 143 V. Creson 137 V. James 4, 56 V. Curtis 47, 50 V. Jenkins 97 V. Daniel 146 V. Jones 28, 52 V. Davidson 133 V. Kaub 17 V. Davis 5, 53 V. Kaufman 5 V. Day 9, 143 V. Kealy 9,126 V. Deniston 171 V. Keggon 136 V. Dennis 52 V. Kelly 13 V. Dierberger 106, 107, 135 V. Killett 33, 34 V. Dietz 106, 108 V. Komstell 143 V. Donohoo 138 V. Kring IIG V. Dodley 46 V. Lafferty 76, 82, 106, 109 V. Drake 58 V. Lapage 137, 138 V. Dula 47, 49, 50 V. Leach 52 V. Edwards 17, 139 V. Lewis 54 V. Eliott 146 V. Mahon 86, 106, 107, 109 V. Estis 52 V. Mann 34 V. Fair 137 V. McAfee 80 V. Fiske 141 V. McDonald 19 V. Flanagan 73 V. McGee 137 V. Flynn 17 V. McKinney 139 V, Fowler 145 V. Miller 47, 106 V. Frederic 139 V. INIiner 140 t'. Freeman 52, 59, 60, 76 V. flooring 90 V. Fuller lOG, 109 I'. Morgan 69 V. Garrand 145 V. Mowry 68 V. Garrett 50, 52, 119 V. Nutting 12 V. Garvey 141 V. O'Brien 99 V. Gay 47 V. Oliver 90 V. German 133 V. Parker 169 TABLE OF CASES XIX State [References are to pages.] V. Pate 106 State V. Weber 95 . Patterson 9 V. Wenzell 27 . Pearce 145 V. West 78, 140 . Phelps 143 r. White 73, 137 Phiniiey 46, 47, 48 V. Williams 80, 95, 97 Pomeroy 17 V. Wilson 146 . Potts 97 V. Woods KtO Powell 100 V. Worden 5 Pugh no Stedman v. Crane 94,90 Reed 145, 146 Steenerson v. Polk Co. Com'rs 39, . Reid 99 47 Richter 130 Stephens v. Wilkins 7, 11,19, 20 Ritchie 53 Stetson V. Packer 7, 11, 28 Rodman 139 Stevenson v. Smith 65, 158 Rogers 132 Stewart v. State 1.38 Rose 51 Stone V. Carter 66 Ross & Mann 9 Stuart V. Harris 117 Russell 79 Stutsman Co. v. Wallace 168 Schleagel 138 Sullivan v. State 145 Schlottman 75 Sultan, In re 130 Schuerinanu 74 Sumner v. Beeler 21 Shaw 90 Sutton V. Allison 66 Shelton 46, 136, 145 Swart r. Kimball 5 Sigman 85, 106 Swift I'. Chamberlain 152, 157 Simmons 9 Smith 9, 10, 89, 134 'J'AAFE V. Kyne 73 Somnier 146 V. Slevin 172 . Sorrel 136 Tackett v. State 31 Spaiilding 47, 49 Tallemon i'. Cardenas 158 Stalcup 112, 116, 171 Tarleton v. Fisher 22 Stancill 50 Tarvers v. State 46 Stewart 126 Tate V. State 61 Stoiiderman 82 Taylor v. Porter 4 Stuth 75 r. Taintor 86 Symes 77 Teagarden i-. Graham 69 Tatro 140, 143 Tefft I'. Ashbaugh 11 Taylor 77, 134 Tellefson v. Fee 19, 21 Tie'e 145 Thomas r. Kinkead 85, 107 Townsend 47, 49, 50 Thompson v. State 147 Vanderpool 125 Thompson's Case 155 . Van Tassel 17 Thurston v. Adams 19 . Walker 140 I'. Jlartin 21 Warn ire 54 Tickner i'. People 99 . Ward 36, 37, 138 Tillman v. Beard 79 . Warner 72 Timmons v. State 100 . Warrea 95 Tiuer v. State 107, 108 XX TABLE OF CASES [Refereuces are to pages.] Toole}''s Case 77 WADE V. Chaffee Wahl V. Walto 77 Topeka v. Heitman 72 n 83 Towns V. State 134 Wakely v. Hart 69 Tracy v. Seamans 41 Walker v. State 98, 99, 100 V. Williams 33, 78 Walters i'. State 134 Trask v. People 17 Ward V. State 139 Tremblay i\ Graham 6.5 Ware v. Leveridge 74 Trustees v. Schroeder 4 Warner v. Grace 78 Tubbs V. Tukey 23, 29, 63 V. Riddiford 41 Turner, In re 152 V. State 141 Twilley v. Perkins 59 Warren v. Kelley 21 Tyson, In re 64 Wartner v State Watson V. Bodell 5 21 UNION DEPOT ETC. CO. V. State 170, 171 V. Smith 79 V. Watson 23 United States v. Anthony 147, 108 Webb V. State 29 V. Bannister 64 Welby V. Beard 153 V. Benner 44, 151 Wells ■('. Jackson 30 V. Bevans 13 Welsh V. Wilson 97 V. Boyd 69 Wentworth v. People 52 I'. Brooks 75 West V. Cabell 26, 28, 56 V. Clark 85, 107 Westervelt v. Gregg 4 V. Dickerman 12 Wheelock v. Archer 172 V. Faw 90 White V. Edmunds 111 V. FuUheart 106 Ex parte 129 V. Hart 76, 153 In re 123, 138 V. Jailer 47, 49 V. Kent 79 V. Kirby 153 V. State 140, 144, 146 V. Lafontaine 150 V. Vallely 1-30, 131 V. Ortiga 151 Whitehead v. Keyes 24, 4^ , 67 V. Raucher 120, 125 Whittaker v. Stute 146 V. Rice 47, 49, 50 Wiggins V. Norton 59 V. Taylor 5 Wilcox V. Nolze 131 V. Watts 125 Willard v- State Williams v. Com. 133 144 •yANDERPOOL v. Van Straaten v. State 1G4 V. Jones 42 People 140 V. People 133, 136 Vaughn v. Com. 146 V. Spencer 94 V. Scade 6 V. State 5, 17, 45, 57, 77 78, Veneman v. Jones 79 106, 107, 109 Vincent, Ex parte 98 V. Tidball 26 V. Stinehour 167 Wills V. Jordan 78 Virginia, Ex parte 4 V. State 13 Von Der Ahe, In re 86 Wilmarth v. Burt 22, 56, 152, 163 Voorhees, la re 130 Wilson V. Barnhill Ex parte 66 70 TABLE OF CASES xxi [References are to pages.] "Wilson V. State 60, 70 AVoolfolk I'. State 118 V. Tucker 30 Work V. State 5 V. United States 139 Wrexford r. Smith \ 69 Wiltshire v. Lloyd ]52 Wright V. Com. 68,78 Wiltze V. Holt 60 V. Court 112, 116 Winkler v. State 27 t'. Keith 45,56 Winslow V. State 133 V. State 107, 137 Wise V. Withers 7, 11 Wroe V. State 145 Wolff. State 51 Wood V. Graves 163 YATES V. People 49 V. Neale 155 Young V. Com. 137 V. Ross 27 THE LAW or ARREST CHAPTEK I THE RIGHT OF PERSOXAL LIBERTY § 1. Definition. — The right of personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law.i § 2. A Natural Right. — This right is a natural one such as has ever been the birthright of every freeman, even in those ages before civilization had exercised its softening influence upon man's pas- sions, and is now guarded with jealous care by that inexorable mistress, " the law of the land. " § 3. Secured by Magna Charta. — It is a right which was stoutly maintained by our English an- cestors, and is one of the rights which they secured to themselves by the famous Magna Charta (Great ^1 Blackstoiie's Commentaries, 135. 1 2 THE LAW OF ARREST Charter), which was given to the barons of England by King John, in 1215, under persuasion of the sword. The right of personal liberty as reduced to written evidence by this great charter was not a new law, but was rather a correction of abuses of the right, which then endangered the liberty of the English people. The language of the Magna Charta is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. § 4. Strengthened by " Petition of Right " and "Habeas Corpus Act." — By the Petition of Eight in 1628, it was further enacted that no freeman should be imprisoned or detained without cause shown, to which he might make answer according to law. Following this legislative enactment came the act of 1664, by which any one restrained of his liberty by order or decree of any illegal court, or even by the command of the king himself in person, or by warrant of the council board, or of any of the privy council, should have, upon demand of his counsel, a writ of habeas corpus (you may have the body) to bring his body before the court of king's bench, or common pleas, who should determine whether the cause of his commitment be just, and thereupon do justice to the party accused. And by the act of 1679, commonly known as the " Habeas THE RIGHT OF PERSONAL LIBERTY 3 Corpus Act," the methods of obtaining this writ were plainly pointed out. § 5. English Bill of Rights. — Excessive Bail Pro- hibited. — To guard against the evasion of this act it was further enacted in the English Bill of Rights, in 1689, that excessive bail should not be required. § 6. American Bill of Rights. — Due Process of Law. — This right of immunity from illegal re- straint was brought to the American shores by our forefathers and became a part of the common law of this country. Subsequently it was incorporated into the American Bill of Rights, — as embraced in the lirst ten amendments to the Constitution of the United States, — by the adoption of the fifth amend- ment, which provides that no person shall be de- prived of his liberty without due process of law. And a similar provision exists in all the State constitutions.^ Due process of law means that whatever the legal proceeding may be, it must be enforced by public authority, whether sanctioned by age or 2 Article 12 of the Bill of Rights in the Constitution of Massachusetts, ^vhich was enacted about seven years before Amendment 5 of the Constitution of the United States was adopted, declares "no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privi- leges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." This Bill of Kights was fashioned from Magna Charta. 4 THE LAW OF ARREST custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves the prin- ciples of liberty and justice.^ It means that neither life, liberty, nor property can be taken, nor the en- joyment thereof impaired, except in the course of the regular administration of the law in the estab- lished tribunals.* Therefore an arrest without a warrant, where one is required by law, is not due process of law.^ Eelating to the higher crimes, due process of law is said to denote a lawful indictment or presentment of good and lawful men,*^ and a public trial by jury,^ * Hurtado v. California, 110 U. S. 516; Rowan v. State, 30 Wis. 12.9; King v. Berchet, 1 Show. (Eng. K. B.) 106; Reg. V. Tngham, 5 B. & S. (Eng. Q. B.) 257 ; Westervelt v. Gregg, 12 N. Y. 202 ; Bank of Columbia v. Okely, 4 Wheat. (U. S.) 235 ; Brown v. Levee Commissioners, 50 Miss. 468; Davidson v. New Orleans, 96 U. S. 97. * Ex parte Virginia, 100 U. S. 366. 6 Muscoe v. Com., 86 Va. 443; State v. James, 78 N. C. 455 ; Trustees v. Schroeder, 58 111. 353. ^ Coke, 2d Inst. 50 ; affirmed in Jones v. Robbins, 8 Gray (Mass.), 329, in which see dissenting opinion by Justice Merrick ; disaffirmed in Hurtado v. California, supra cit., in which see dissenting opinion by Justice Harlan. See also Taylor v. Porter, 4 Hill (N. Y.), 140 ; Hoke v. Hender- son, 4 Dev. (N. C.) 1 ; Jones v. Perry, 10 Yerger (Tenn.), 59 ; 3 Story on Const. U. S. 661 ; 2 Kent's Com. 13; Saco v. Wentworth, 37 Me. 172 ; Emerick v. Harris, 1 Binn. (Pa.) 410 ; Murphy v. People, 2 Cow. (N. Y.) 815 ; Jackson v. Wood, 2 Conn. 819 ; Beers v. Beers, 4 Couu. 535. "! People V. Murray, 89 Mich. 276. THE RIGHT OF PERSONAL LIBERTY 5 before a court of competent jurisdiction. Therefore, where the court at the trial of one charged with murder, directed an officer to stand at the door of the court-room " and see that the room is not over- crowded, but that all respectable citizens be ad- mitted, and have an opportunity to get in when they shall apply," it was held that the right of the accused to a public trial, guaranteed to him by the constitution, had been violated.*^ § 7. Constitutional Right cannot be Waived. — As a general rule the accused, at least in a felony case, cannot waive his constitutional right to a trial by a jury of twelve men ; and it is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated.^ And the fact that the defendant was negligent in raising his objections is not material. ^*^ 8 People V. Murray, 80 Mich. 276. 9 Hill V. People, 16 Mich. 351 ; Canceini v. People, 18 N. Y. 128; Work r. State, 2 Ohio St. 296 ; United States r. Taylor, 3 McCrary (U. S. C. C), 500 ; Harris r. People, 128 111. 589 ; Brown v. State, 8 Blackf. (Ind.) 561 ; League ;;. State, 36 IMd. 257 ; Allen v. State, 54 Ind. 461 ; Wartner i-. State, 102 Ind. 51 ; Swart v. Kimball, 43 Mich. 443 ; State v. Carman, 63 Iowa, 130 ; Bond v. State, 17 Ark. 290 ; State V. Davis, 66 Mo. 684; Bell r. State, 44 Ala. 3.03 : Williams I'. State, 12 Ohio St. 622 ; Kleinschmidt r. Dunphy, 1 Mont. 118. Contra: State v. Worden, 46 Conn. 319; Ilallinger c. Davis, 146 U. S. 314; In re Staff, 63 Wis. 2S5; State v. Kaufman, 51 Iowa, 578 ; People v. Kerrigan, 73 Cal. 222 ; State V. Albee, 61 :N^. H. 423. 10 Hill V. People, 16 Mich. 351. 6 THE LAW OP ARREST In courts not of record, however, as in justices' courts, a trial by less than twelve men is legal. ^^ The provisions in Article III, Constitution of the United States, respecting the trial of crimes by jury, relates to the judicial power of the United States alone, and does not apply to State courts. ^^ § 8. Personal Liberty demands Restraint. — The assurance of personal liberty does not license any person to be free from restraint ; on the contrary, it demands such necessary restraint of persons as will insure the utmost amount of personal liberty to each, for the safety and well-being of society are paramount to individual liberty. § 9. The Limit of Governmental Control. — The government has the right to control its subjects up to that point where society is safe, but it has no right to go beyond the point of safety. ^^ Any law which restrains a man from doing mischief to his fellow-man increases the personal liberty of man- kind, but every wanton and causeless restraint of the will of the subject is a degree of tyranny, i"* § 10. Rights of Subjects are Equal. — It is one of the most commendable features of our republican " Vaughn v. Scade, 30 Mo. 600 ; Hill v. People, 16 Mich. 351. 12 Eilenbecker v. Plymouth Co., 134 U. S. 31 ; Edwards V. Elliott, 21 Wall. (U. S.) 557. i» Petition of Ferrier, 103 111. 373. " 1 Bl. Com. 126. THE RIGHT OF PERSONAL LIBERTY 7 form of government that our laws are equal, just, and impartial, and that the humblest member of society has rights and remedies for the infraction of those rights, that are not exceeded by the rights or remedies of any other man, no matter how high his station. No officer of the law can, with im- punity, set those rights at defiance. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. §11. Rights must be Respected. — It is, there- fore, removed from the whim or ignorance of any magistrate to issue, or of any person to serve any legal process whatever unless the provisions of law be strictly followed ; and any restraint of a person, except by due process of law, amounts to a false imprisonment, for which both magistrate and officer may be liable in damages to the person deprived of his liberty, and the imprisonment may also be made the subject of a criminal prosecution. ^^ 15 Fislier v. McGirr, 1 Gray (Mass.), 45 ; Stetson r. Packer, 7 Cush. (Mass.) 564; Stephens r. Wilkins, 6 Pa. St. 2fJ0; Emery v. Hapgood, 7 Gray (Mass.), 55; Rafferty i\ People, 69 111. Ill ; Gurney v. Tufts, 37 Me. l;]0; Wise v. Withers, 3 Cranch (U. S.), 337; Entick v. Carriiigton, 2 Wils. (Eng. C. P.) 275 ; Groome r. Fom-sler, 5 M. & S. (Eng. K. B.) 314 ; Allen v. Gray, 11 Conn. 95. THE LAW OP ARREST CHAPTER II THE ISSUANCE AND SERVICE OF LEGAL PROCESS Process. §12. Definition. — Process is a writ, warrant, subpoena, or other formal writing issued by author- ity of law ; also the means of accomplishing an end, including judicial proceedings.^ The word " process " is also used as a general term to cover all the written means of compelling a de- fendant to appear in court, whether in a civil or in a criminal action. § 13. statutes abrogate the Common Law. — Any process issued according to the rules of the common law, and any act done under precedent of the weight of authority as laid down in the judi- cial decisions will be valid, and will justify all persons acting therein, unless the authority of such common law and judicial precedents has been ab- rogated by constitutional legislative enactments ; for where the common law and the statutes are in conflict, the latter always control. ^ Gollobitsch V. Rainbow, 84 Iowa, 567. the issuance and service of legal process 9 Jurisdiction. § 14. Procured by Stratagem or Fraud. — No court cau, at common law, exercise jurisdiction over a party in a civil case unless he is served with process within the territorial jurisdiction of the court or voluntarily appears.^ But a person cannot claim immunity, in a criminal case, be- cause he was enticed into the jurisdiction by stratagem and fraud,^ except in case of an extradi- tion under a treaty, it being well established that when a prisoner is before a court, legally charged with a crime for which he is to be tried, the court will not be obliged to inquire how he came there; and the want of authority for a prisoner's arrest cannot protect him from prosecution.* So where 2 ^lex. Cent. Ry. v. Pinkney, 149 U. S. 194 ; Kendall v. United States, 12 Pet. (U. S.) Si!; Harris v. Hardeman, 14 How. (U. S ) 334. 8 Ex parte Brown, 28 Fed. Rep. (U. S.) 653 ; In re Doo Woon, 18 Fed. Rep. (U. S.) 898. 4 Dow's Case, 18 Pa. St. 37 ; Com. v. Wait, 131 Mass. 417 ; Ex parte Scott, 9 B. cSc C. (Eng. K. B.) 446 ; Lopez & Bat- tlers' Case, 1 Dearsly & Bell's .C. C. (Eng.) 525; State v. Smith, 1 Bailey (S. C.), 283; State v. Brewster, 7 Vt. 118 ; In re Durant, 00 Vt. 176 ; State v. Patterson, 116 Mo. 505 ; State V. Day, 58 Iowa, 678 ; State v. Ross & Mann, 21 Iowa, 467; State v. Kealy, 89 Iowa, 94; Ship Richmond v. U. S., 9 Cranch (U. S.), 102 ; Mahon v. Justice, 127 U. S. 700 ; Ker v. People, 110 111. 627; IMix v. People, 26 111. 34; People V. Payment, 109 ]Mich. 553; Ex parte Barker, 87 Ala. 4; Lagrave's Case, 14 Ahb. Pr. x. s. (X. Y.) 333, note; People /". Rowe, 4 Parker Cr. (N. Y.) 253. C mtra : In re Robinson, 29 ]N'eb. 135 ; State v. Simmons, 39 Kan. 262. 10 THE LAW OF ARREST an embezzler was kidnapped from Peru and brought forcibly to the United States, without the existing treaty powers having been invoked, although an ample treaty of extradition existed between that country and the United States, the State court may proceed to try the offender, and the United States courts can give him no relief.^ And where a felon convict, after being sentenced to be executed for stealing a slave, was pardoned, upon the condition that he immediately leave the State and never return, he afterward violated the condition by returning to the State wherein he was pardoned ; whereupon the governor of that State offered a reward for his capture. He fled from that State to an adjoining State, whence he was forcibly taken without process and brought back to the State where the crime was committed, and his motion for a discharge from arrest was refused.^ § 15. Procured by Illegal Arrest. — Where a party is taken from his own house for drunken- ness to answer to a complaint for that offence, which had been duly made and received, it is im- material upon the question of his guilt and punish- ment therefor, whether he had been arrested legally or illegally, or arrested at all before the complaint was made.' 5 Kerv. Illinois, 119 U. S. 436. 6 State V. Smith, 1 Bailey (S. C), 283. ' Com. V. Conlin, 184 Mass. 195. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 11 § 16. Effect of "Want of Jurisdiction. — If the magistrate issuing the process has no jurisdiction of the subject-matter, the i^rocess is not merely voidable but wholly void, and an officer acting under it is a trespasser,^ as is also the magis- trate who issues it,^ and the party making the complaint. ^^ And an unconstitutional statute, purporting to give jurisdiction, will not justify either magistrate orofficer.il But lack of jurisdiction of the person will not invalidate the process if the defect does not appear on its face. ^^ § 17. Finding Prisoner Guilty of Lesser Offence than that Charged. — If an offender is lawfully before a court charged with an offence of which the court has jurisdiction, he may, upon trial, be found guilty of a lesser offence which is a degree of the greater crime, or relates to the same transac- tion, if it is charged in a separate count, of which the court otherwise would have no jurisdiction. ^^ * Fisher?'. McGirr, 1 Gray (Ma.ss.), 4.5; "Wise v. Withers, 3 Cranch (U. S.), 337; Eutick r. Carriugton, 2 Wils. (Eng. C. P.) 275. 9 Stetson V. Packer, 7 Cush. (Mass ) 564. ^0 Stephens v .Wilkins, 6 Pa. St. 260; Emery v. Hapgood, 7 Gray (Mass.), 55. '1 Fislier v. McGirr, supra cit. 12 Tetft V. Aslibaugh, 13 111. 602; Clarke v. May, 2 Gray (Mass.), 410. 18 People V. Rose, 15 N. Y. Suppl. 815. But see Nelson V. State, 10 Humph. (Tenu.) 518. 12 THE LAW OP ARREST Although if the lesser crime were charged as a sep- arate offence the court would not have jurisdiction. But where the greater and lesser offence are con- tained in the same count, a court may not con- vict of the lesser crime which is not within its jurisdiction.^* § 18. Foreign Vessels. — A foreign merchant ship coming within our harbors is subject to our local jurisdiction the same as any foreign private per- son. ^^ But over a public ship, such as a man-of- war, a State court in whose port the ship is can never have jurisdiction. § 19. Ceded Territory. — Over a locality ceded by a State to the United States, the jurisdiction of the courts of the ceding State does not extend, except by a special reservation in the ceding act; and a reservation in such act, of concurrent juris- diction to serve in the ceded locality any civil or criminal State processes, does not take from the United States its exclusive legislative and judicial authority ; and an offence therein committed is triable in the United States courts alone. ^^ The federal courts also have exclusive jurisdic- tion over crimes committed within parts of a State ceded for the purpose of arsenals, dockyards, forts, " State V. Nutting, 16 Vt. 261. " U. S. V. Dickerman, 92 U. S. 520. i« Mitchell V. Tibbetts, 17 Pick. (Mass.) 298, referring to the Charlestowu navy yard. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 13 magazines, postoffices, and all other public build- ings of the United States. ^" So a State court has no jurisdiction of murder in a fort ceded to the government. -^^ Arrest. §20. Modes of making. — An arrest may be made in four ways : 1. By warrant ; 2. By an officer without warrant; 3. By a private person also without warrant ; 4. By a hue and cry. ^° When the offender is not likely to abscond before a warrant can be obtained, it is in general better to apprehend him by a warrant than for a private per- son or officer to arrest him of his own accord, because if the justice should grant his warrant erroneously, no action lies against the party obtaining it.^^ AVarrants. §21. Search Warrant. — Definition. — A search warrant is a w^arrant requiring the officer to whom it is addressed to search a house, or other place, ^^ " U. S. V. Bevans, 3 Wheat. (U. S.) 38G; New Orleans V. U. S., 10 Pet. (U. S.) 711; Clay v. State, 4 Kan. 54; Wills V. State, 3 Heisk. (Tenn.) 14'J ; Reynolds i-. People, 1 Col. 180 ; People v. Godfrey, 17 Johns. (N. Y.) 230. 18 State V. Kelly, 76 Me. 331. " 4 Bl. Com. 290. 20 Leigh V. Webb, 3 Esp. (Eng. N. P.) 16G. 21 In California it has been held that a search warrant may be issued to search a person. Collins v. Lean, OS Cal. 284. 14 THE LAW OF ARREST therein specified, ^^ for property therein alleged to have been stolen, and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. ^^ § 22. Procedure in Issuing. — It issues on a complaint, made on oath or affirmation, by the suspecting party, and the complainant should aver that the property has been stolen, and that he has cause to suspect, and does suspect, that it is secreted in the house or place proposed to be searched, 2* which place must be described, and no place other than that described can be searched. Nor can any property other than that described be seized. A search warrant will issue either to recover stolen property or procure evidence of a crime. In California it may be issued against a person. ^^ Like other warrants, it should be signed, and, when re- quired by statute, ^^ sealed by the magistrate issuing 22 Com. w. Lucy, 150 Mass. 164. 28 Bouvier's Law Diet. (Search Warrant) ; Grumou v. Raymond, 1 Conn. 40. 2* Com. I'. Phillips, 16 Pick. (Mass.) 214; Grumon ?;. Raymond, supra cit. 26 Collins V. Lean, 68 Cal. 284. 2« Millett V. Baker, 42 Barb. (N. Y.) 215. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 15 it. It may be directed either to an officer, or, iu case of necessity, to a private person. 2" § 23. Constitutional Provisions. — The Constitu- tion of the United States, Article IV, Amendment, provides, " The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but on prob- able cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. " But this pro- vision does not apply to searches and seizvtres made under direction of State authorities.^^ Provisions, however, similar to that enacted in the Constitu- tion of the United States, have been enacted in the various State constitutions,^^ and thereby afford the citizens of the particular State ample protection against unreasonable searches and seizures. § 24. Permission -will justify Searching ■without a Warrant. — The constitutional provisions respect- ing search warrants apply only to cases where the search is without the consent of the occupant of the '" Meek v. Pierce, 19 Wis. 318; Com. v. Foster, 1 Mass. 403; 4 Bl. Com. 291; 1 Hale's Pleas of Crown, 581; 2 Hawkins' Pleas of Crown, c. 13, § 28; Rex r. Kendall, 1 Ld. Kaym. (Eng. K. B.) fJO ; Kelsey v. Parmalee. 15 Conn. 265; Blatfher v. Kemp, 1 II. Black. (Eng. C. P.) 15. 28 Spies V. Illinois, 123 U. S. 131 ; Reed v. Rice, 2 J. J. Marshall (Ky.), 44. 29 See Const. Mass., Part I., Art. XIV. 16 THE LAW OF ARREST premises, therefore where permission is given to search, either by the occupant or his agent, a search warrant is not necessary. So where, after the arrest of one on a charge of arson, police officers went to his place of business in the burned building, and without a search warrant, but with the permission and assistance of his acrent, who was in charge of the premises, found and removed certain articles which were used as evidence against the accused at the trial, the introduction of this evidence could not be objected to as having been taken in violation of the State constitution regulating searches and seizures, or that it compelled him to give evidence against himself, because the accused was bound by the consent given by his agent, and in consequence there was no " seizure " or compulsion. ^"^ § 24 a. Illegal Seizure does not destroy Admis- sibility of Evidence obtained Thereby. — Where papers which are pertinent to the issue are il- legally taken from the possession of the party against whom they are offered as evidence, the fact of the illegal seizure cannot be offered as a valid objection to their admissibility, because the court limits the inquiry to the competency of the proffered testimony and will not stop to inquire as to the means by which the evidence was obtained. ^^ 80 state V. Griswold, 67 Conn. 290. 81 Adams v. New York, 192 U. S. 585 ; Com. v. Dana, 2 Mete. (Mass.) 329 ; State v. Griswold, 67 Coun. 306. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 17 And where a police officer, arired with a search warrant calling for a search for intoxicating liquors upon the premises of the defendant's husliand, took two letters which he found at the time, it was held that a trespasser may testify to pertinent facts ob- served by him, or may put in evidence pertinent articles or papers found by him while trespassing, and although he may be held responsible civilly or criminally for the trespass, his testimony is not thereby rendered incompetent.^^ § 25. Purposes for which a Search Warrant will Issue. — The purposes for which a search warrant will issue are usually fully described by statute,"^ and generally embrace the search for stolen property, intoxicating liquors, gaming implements, counterfeit money, and instruments used in making it, and other articles made, sold, or kept in violation of law. § 26. Bench Warrant. — Definition. — A bench warrant is a process issued by a judge from the 82 Com. V. Tibbetts, 157 jNIass. 519. See also Com. v. Acton, 165 IMass. 11 ; Com. v. Smith, 160 Mass. 370 ; Clias- taug V. State, 83 Ala. 29; State v. Flyiin, 3G N. II. 64; State V. Edwards, 51 \V. Va. 220 ; Sliields v. State, 104 Ala. 35; Bacon v. United States, 97 Fed. Kep. 35; State v. Atkinson, 40 S. C. 363; Williams v. State, 100 Ga. 511; State V. Poraeroy, 130 Mo. 489; (iuidrat r. People, 138 111. 103 ; Trask v. People, 151 111. 523 ; Starchman i;. State, 62 Ark. 538; People v. Adams, 85 N. Y. App. 390; State v. Van Tassel, 103 Iowa, 6; State v. Kaub, 15 Mo. App. 433; Legatt V. Tollervey, H East (Eng. K. P.). 302. *" See Revised Laws oi JNIass. c. 217, §§ 1-8. 2 18 THE LAW OP ARREST bench, that is, by the court itself, for the arrest of a person, either in a case of contempt of court, or after an indictment has been found, or to bring in a witness who has not obeyed the subpoena. It requires all the formalities of other warrants of arrest. The only purpose of the term " bench warrant " is to distinguish it from a warrant issued by a magis- trate, who may be a judge not sitting ofhcially, or a justice of the peace, whereas a bench warrant is always issued by a judge at an official sitting. It is the usual warrant to issue after an indictment has been found. A bench warrant is bad which does not direct that the party shall be brought before some judge or justice.^* § 27. Warrant of Arrest. — Definition. — A war- rant of arrest is a legal process issued by competent legal authority, directing the arrest of a certain per- son, or persons, upon sufficient grounds, which must be stated in the warrant. ^^ ^ 28. Issuing Magistrate need not have Trial Jurisdiction. — A warrant is usually issued by a magistrate having jurisdiction to try the offence, but a justice of the peace who has no jurisdiction to try an offence may act in a ministerial capacity, 8* Queen v. Downey & Jones, 7 Q. B. (Eng.) 281. 8i Drennau v. People, 10 Mich. 169. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 19 and issue a warrant returnable before a court which has the necessary trial jurisdiction.^^ § 29. What Executing Officer must know. — An officer called upon to execute a warrant is charged with two duties which he must observe in order to insure his own freedom from liability. He must know (1) that the magistrate, or court who issues the warrant has general jurisdiction of the subject- matter,^' and (2) that the warrant is valid upon its face. 2^ § 30. How far a Warrant Valid upon its Face protects the Officer. — From the decisions it does not seem clear as to just how far an officer is pro- tected by a warrant that is valid upon its face. One line of cases seems to hold that, on the ground of public policy, and in order to secure s6 Com. V. Roark, 8 Cush. (Mass.) 210. See also Gold r. Bissell, 1 Wend. (X. Y.) 217. 87 State r. McDonald, 3 Dev. (N". C.) 471 : Allen v. Gray, 11 Conn. 95; Tellefson c. Fee, 168 Mass. 188; Stephens v. Wilkins, 6 Pa. St. 260; Earl v. Camp, 16 Wend. (N. Y.) 562; E]a V. Shepard, 32 N. H. 277; Ilines v. Cliambers, 29 INIinn. 7 ; Hann v. Lloyd, 21 Vroom (N. J.), 1. Contra : Emery v. Hapgood, 7 Gray (Mass.), 55. "8 Emery v. Ilapgood, supra cit. ; Clark v. Woods, 2 Exch. (Eng.) 395; Pearce v. Atwood, 13 Mass. 324; Eames v. Johnson, 4 Allen (Mass.), 382; Thurston v. Adams, 41 Me. 419; Brown v. Howard, 86 Me. 342; Rosen v. Fischel, 44 Conn. 871; Frazier v. Turner, 76 Wi.-^. 562; Sheldon v. Hill, 33 Mich. 171 ; Poulk v. Slocum, 3 Blackf. (lud.) 421. 20 THE LAW OP ARREST prompt and effective service of legal process, offi- cers, and those acting under them, need only to look upon the warrant, and if that is fair and valid upon its face, showing no defect or want of jurisdiction, the officer may justify under it, although it is wholly void,^^ and that he need not take notice of extrinsic facts. 40 While another line of reasoning, which seems to be the weight of authority, is that a warrant is void upon its face if the whole proceeding in which it was issued was beyond the jurisdiction of the issuing court, and that if the officer knows the facts in the case he is conclusively presumed to know the law, and therefore liable. So where a justice of the peace issued a warrant for the collection of road taxes, not having jurisdic- tion over such taxes, the officer was held liable for executing the warrant.*^ And where, by treaty of 1827 between the United States and Sweden and Norway,'*^ exclusive jurisdiction in an action for wages brought by a Norwegian sailor against the captain of a Norwegian vessel was given to the Norwegian consul of the particular port in which the vessel was lying, the courts of the United States have no jurisdiction; and an officer who serves a warrant issued by a municipal court after these 89 Emery v. Hapgood, 7 Gray (Mass.), 58. 41 People V. Warren, 5 Hill (N. Y.), 440. " Stephens v. Wilkins, 6 Pa. St. 260. 42 8 U. S. Stats. 346, 352. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 21 facts have been brought to his attention, is liable, although the want of jurisdiction is not apparent on the face of the warrant, which is in proper form. ^^ If the process is void upon its face, it is no pro- tection whatever, and the officer or other party who serves it is liable civilly and criminally. If he kills in the act of serving the process, it is murder. § 31. Ignorance of the Law is no Excuse. — If either the jurisdiction or warrant is faulty, the fact that the officer does not know the law govern- ing these matters will not excuse him,** because every one is conclusively presumed to know the law, the well-settled maxim of the law being, " Ignorance of the law excuses no one. " § 32. Ignorance of Fact may Excuse. — But although ignorance of the law is no excuse, igno- rance of fact may be a valid excuse ; and if the officer is ignorant of jurisdictional facts, which " Tellefson v. Fee, 168 Ma-ss. 188. See also Warren v. Kelley, 80 Me. 512; Batchelder v. Currier, 45 \. II. 4G0; Campbell v. Sherman, 35 Wis. 103 ; Leachnian v. Dougherty, 81 111. 324. ** Sandford v. Xichols, 13 Mass. 286 ; Fi.sher v. McGirr, 1 Gray (Mass.), 1, 45; Warren t-. Kelley, 80 Me. 512; Batchelder v. Currier, 45 N. H. 460; Thurston r. ^Martin, 5 Mason (U. S. C. C), 497; Campbell v. Sherman, 35 Wis. 103 ; Sumner v. Beeler, 50 Ind. 341 ; The Marshalsea, 10 Rep. (Eng. K. B.) 68 b; Crepps v. Durden, Cowp. (Eng. K. B.) 640; Watson v. Bodell, 14 M. & W. (Eng. Exch.) 57. 22 THE LAW OF ARREST ignorance is not attributable to his own negligence, he may justify by a process that is fair and valid upon its face. § 33. Officer must serve Void Warrant if the Defect is not on its Face. — On the other hand, if the warrant is void, for any cause other than want of jurisdiction, and the officer knows it, he is pro- tected in serving it if the defect does not appear on its face ; ^^ and he has no right to refuse to serve a warrant, issued by a court of competent jurisdic- tion, if it is valid on its face, even though it be void. 46 If there is an insufficiency in the complaint, the officer is not liable if the defect does not appear on the face of the warrant, 4" because he has the right to rely upon the warrant alone. ^^ A clerical mistake in copying the facts from the complaint, at least in the matter of a date, does not make the warrant invalid, if it is not misleading.*^ ^5 Kennedy r. Dundee, 1 Gray (Mass ), 65; Parsons v. Loyd, 3 Wils. (Eng. C. P.) 345; Gasset r. Howard, 10 Ad. & El. N. s. (Eng. Q. B.) 454; Allison v. Rheam, 3 S. & R. (Pa.) 139. *« Wilraarth v. Burt, 7 Mete. (Mass.) 2.57; Tarlton r. Fisher, 2 Doug. (Eng. K. B.) 671 ; Cameron v. Lightfoot, 2 W. Bl. (Eng. K. B.) 1190. *" Donahue r. Shed, 8 Mete. (Mass.) 326; Com. i;. Murray, 2 Va. Cases, 504. *^ Wilmarth v. Burt, supra cit. *^ Heckman v. Swartz, 64 Wis. 48. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 23 § 34. Return of Warrant is Necessary to its Validity. — But even though a warrant be i.ssued by a court of competent jurisdiction over both party and subject-matuer, and though the warrant be fair and valid upon its face, it is of no protec- tion whatever to the officer if he does not return it to court after he ser\ es it. '^'^ § 35. Life of a Warrant. — A warrant remains in force until it is returned; even if the accused has been arrested and escapes, he may be taken a^ain on the same warrant, if it has not been returned. After its return, however, it has no validity; nor can it be altered, ^^ for its life is then extinct. § 36. Effect of the Return. — The eflect of the return by the officer is that, as against himself,^^ it is conclusive proof of the service and of the other facts which it recites, while as against the parties, it is at least prima facie proof, ^ and in most States 50 Brock V. Stimson, 108 Mass. o20; Tubbs v. Tiikey, 3 Cash. (Mass.) 438; Dehm v. Ilinman, 56 Conn. 320. See also Com. v. Tobin, 108 IMass. 420; Shorland v. Govett, 5 B. & C. (Eng. K. B.) 485; Middleton v. Trice, 1 Wils. (Eng. C. P.) 17. 61 Cora. V. Roark, 8 Cash. (^lass.) 210. 62 Blue v. Com., 2 J. J. Marshall (Ky). 20 ; Benjamin v. Hathaway, 3 Conn. 528; Ilensley i\ Rose, 76 .\la. 373. 6^ Watson V. Watson, 6 Conn. 334; Newell v. Whigham, 102 N. Y. 20. 24 THE LAW OP ARREST it is conclusive proof against the parties also.^* In an action against a public officer his return is prini'i facie but not conclusive evidence in his favor, although it is conclusive in the suit in which it is made.^^ Nor is a return of a rescue on a writ conclusive evidence in behalf of the officer in an action brought against him for the escape of a prisoner. ^^ An officer will not be permitted to introduce evi- dence to show that although he has omitted to men- tion in his return that he has done things which he should have done, he has nevertheless done them.^' And he will not be allowed to contradict his own return for his own benefit. ^^ The return, by permission of the court, may be amended by the officer. ^^ § 37. "Warrants in Blank are Void. — A war- rant must not be issued in blank with view of later writing in the name of the defendant. ^^ Such warrants are absolutely void. ^* Nichols V. Nichols, 90 Iiid. 433; Green v. Kindy, 43 Mich. 279. ^5 McGough V. Wellington, 6 Allen (Mass.), 505. *8 Whitehead v. Keyes, 3 Allen (Mass.), 495; Barrett i'. Copeland, 18 Vt. 67. 57 Grant v. Shaw, 1 Root (Conn.), 526. 58 Purrington v. Loring, 7 Mass. 388 ; Gardner v. Hosmer, 6 Mass. 324. 59 Johnson v. Stewart, 11 Gray (Mass.), 181 ; Lake's Case, 15 R. I. 62S; Dwiggins v. Cook, 71 lud. 579. 60 Rafferty i'. People, 69 111. 111. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 25 § 38. General "Warrants are Void. — Nor can a warrant be legally issued in a general way against any one of a certain class of persons ; °^ but a statute may authorize the arrest, without warrant, of any one of a certain class, as, for example, vagrants, prostitutes, etc.^^ § 39. "Warrant must particularly describe the Party to be arrested. — A warrant may be valid although it does not contain the name of the person whose arrest is directed. But for want of the true name of such person there must be such sufficient de- scription of him in the warrant that he may be identified therefrom ; as, for example, stating his occupation, his personal appearance, and peculiar- ities, the place of his residence, or other circum- stances of identification. § 40. OflBcer must rely on Name alone. — Where a warrant gives a fictitious name, without stating that the name is fictitious, and that the true name is unknown, and follows with a description of the person, the officer must rely on the name alone, and cannot justify the arrest of a party whose name is other than that appearing in the warrant, even though he is the party described and intended. As where a warrant was issued against " John Doe, the person carrying off the cannon," the arrest of Levi 61 Com. r. Crotty, 10 Allen (Mass.), 403; Mead r. Haws, 7 Cow. (N. Y.) 3:52. *^ Money v. Leach, 3 Burrows (Eng. K. B.), 1766. 26 THE LAW OF ARREST Mead is not justifiable, although he was taken in the act of carrying off the cannon, and was the person intended. ^^ § 41. General Warrants are prohibited. — If the description in a warrant is so general that it may be applied to different persons, it is open to the objection that it is a general warrant,*^* and is for that reason in violation of the Constitution of the United States, Article IV, Amendment, which re- quires a particular description of a person to be seized, ^^ and any person whose arrest is attempted thereunder is justified in resisting such unlawful arrest. § 42. Never Sufficient that Intended Party was arrested. — It is never sufficient that the party intended to be arrested was the one actually appre- hended. The warrant must so describe the party arrested that he may know whether he is bound to submit. So where the complaint was against " John E. Miller," and the warrant commanded the arrest of " the said William Miller," the officer was not justified in arresting John E. Miller, although it was proved that he was the person intended. ^^ 63 Mead v. Haws, 7 Cowen (N. Y.), 332 ; West v. Cabell, 153 U. S. 78; Harris v. Mc Reynolds, 10 Col. App. 532. Contra: by statute in Arizona: "^Mlliams v. Tidball, 2 Ariz. (1885). 64 Com. V. Grotty, 10 Allen (INIass.), 404. 65 West V. Cabell, 153 U. S. 78. 66 Miller v. Foley, 28 Barb. (N. Y. ) 630. See also Gris- wold V. Sedgwick, 6 Cowen (X. Y.), 455. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 27 § 43. Party known by two Names may be ar- rested by either. — But where a person is known by two names, and equally well by either, a warrant may command his arrest under either name, even though it be the wrong one.*^'^ § 44. No Protection to Officer who serves a "Warrant without Authority. — An officer cannot be protected by a warrant that is not issued to himself to serve, nor is he protected unless he has authority to serve it. ^^ § 45. The Requisites of a Valid "Warrant. — It is somewhat difficult to say just what are the requisites of a valid warrant, but in a general way it may be said that a warrant must have all the requisites demanded by the constitutional and statu- tory provisions of the particular State in which it is issued ; it must show on its face that it was issued by a magistrate having jurisdiction of both party and subject-matter;^^ and here it may be noted that where the magistrate has no jurisdiction, it cannot be conferred by the consent of the party defendant. ''^ 6T Shadgett v. Clipson, 8 East (Eng. K. B.), :32S : Cole v. Hindson, G T. R. (Eng) 231. 68 Reynolds v. Orvis, 7 Cowen (N. Y.), 269; AYood v. Ross, 11 Mass. 271; Paul v. Vankirk, 6 Binn. (Pa.) 12:3; State i\ Wenzel, 77 Ind. 428; O'Malia v. "Wentworth, 65 Me. 129 ; Winkler r. State, 32 Ark. 539. 6^ In re Bonner, 151 U. S. 242 ; Re}Miolds >:. Orvis, supra cit. ; Fisher r. Shattiick, 17 Pick. (Mass.) 252. ^0 People V. Campbell, 4 Parker Cr. Rep. (X. Y.) 386. 28 THE LAW OF AEREST It must state the offence with which the party is charged, which must be an offence against the law,"^ and that the necessary complaint on oath or affirma- tion was made. '^ It must show the time of issu- ance/^ and the authority to issue.'* It must correctly name the defendant, or so accurately de- scribe him that from the description he may be identifi.ed. '^ It must be directed to the proper officer, either by name, or by a description of the office which he holds. '^ It must command the arrest,''' and not leave it optional with the officer to arrest or not as he may choose ; and command the officer to bring the defendant before some authorized magistrate.'^ A warrant should bear the signature of the justice who issues it, contain all the statutory requirements, " People V. Mead, 92 N. Y. 415; Johnson v. State, 73 Ala. 21 ; State v. Jones, 88 N. C. 671. '2 Caudle v. Seymour, 1 Q. B. (Eng.) 889; Grumon r. Raymond, 1 Conn. 40. '3 Donahoe v. Shed, 8 Mete. (Mass.) 326. ''^ Com. v. Ward, 4 Mass. 497 ; Halstead v. Brice, 13 Mo. 171. T5 Com. V. Crotty, 10 Allen (Mass.), 403; West v. Cabell, 153 U. S. 78; Miller v. Foley, 28 Barb. (N. Y.) 630. T« Rex V. Weir, 1 Barn! & Cres. (Eng. K. B.) 288; Com. V. Foster, 1 Mass. 493; Cora. v. Moran, 107 Mass. 239. " Abbott V. Booth, 51 Barb. (N. Y.) 546. " Stetson V. Packer, 7 Cush, (Mass.) 562; Com. v. Wil- cox, 1 Cush. (Mass.) 503 ; Reg. r. Downey, 7 Q. B. (Eng.) 281 ; Bookhout v. State, 66 Wis. 415. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 29 which generally include a seal,'^ and he dated. It should contain a command to the officer to make a return thereof and his doings thereon. But the want of such command does not excuse him from the obligation of making a proper return. ^^ § 46. Warrant must be in Possession of Officer. — The officer or private person making an arrest with a warrant, in a case where a warrant is necessary, ^^ must have the warrant in his possession at the time of making the arrest ; ^^ and it is immaterial whether the person taken has demanded an inspec- tion of the warrant, for it is the legal right of the person arrested that such shall be the situation, and therefore where the situation does not exist, the arrest is a le^al wrong. ^^ The fact that the arrested party knows that a warrant has been issued will not relieve the arresting party of the necessity of having the war- ''^ In Massachusetts, it is provided that justices and special justices of police, district, and municipal courts may issue warrants under their own hands and se(ds. Rev. Laws of Mass. c. IGO, § 35. A trial justice, however (not iiaving an official seal), may issue a warrant luider his hand alone. llev. Laws of Mass. c. 216, § :). <*' Tubbs V. Tukey, 3 Cush. (Mass.) 438. 81 People V. Shanley, 40 Hun (N. Y ), 477; Codd v. Cabe, 13 Cox C. C. (Eng.) 202. " Webb I'. State, 51 N. J. Law, 189 ; Smith r. Clark, 53 X. J. Law, 197. But see Cabell v. Arnold, 6Q Tex. 102. 83 Smith V. Clark, supra cit. 30 THE LAW OF ARREST lant with liim. ^* And there is no such thing as constructive possession of a warrant.*^"'' But where a sheriff is armed with a warrant, his deputy may make an arrest within the sight or hearing of the superior officer, although the warrant is not actually in his possession. ^^ § 47. Warrants may issue on Sunday. — In absence of statute, a warrant may be issued on Sunday,^' but no arrest, except in cases of treason, felony, or breach of the peace, can be made on Sunday. ^^ § 48. Authority to alter a Warrant. — No person, other than the issuing magistrate, has the right to alter a warrant,^^ because if altered by a third party it would not be the warrant issued by the magis- trate who signed it. § 49. Arrest in Different County. — Tn absence of statutory authority, no arrest can be made in one county in a State, on a warrant issued by a jus- tice of the peace or judge of another county in that 8* People V. Shanley, 40 Hun (N. Y.), 477. 85 Ibid. 85 People V. McLean, 68 Mich. 480; Kirbie v. State, 5 Tex. App. 60; Ex parte McManus, 32 New Brunswick, 481; Com. V. Black, 12 Pa. Co. Ct. 31 ; People i^. Moore, 2 Doug. (Mich.) 1. 8" Pearce v. At wood, 13 INIass. 347. 88 Wilson V. Tucker, 1 Salk. (Eng. K. B.) 78 ; Stat. 29, Car. II. c. 7. 89 Haskins v. Young, 2 Dev. & B. (X. C.) 527 ; Wells v. Jackson, 3 Muuf. (Va.) 458. THE ISSUANCE AND SERVICE OF LEGAL PROCESS 31 State, unless the warrant is indorsed by a justice of the peace or judge of the county in which the arrest is made. ^*^ § 50. Warrant may be Valid without a Seal. — A warrant ought to be under the hand and seal of the justice, but it seems sufficient if it be in writ- ing and signed by him, unless a seal is expressly required by statute. ^^ The warrant of a commissioner of the Vnited States is not void fur lack of a seal, because such commis- sioner has no official seal and is not required by statute to affix one to warrants issued by him. ^ so Jones r. State, 26 Tex. App. 1 ; Ressler r. Peats, 86 111. 275; Copeland i'. Islay, 2 Dev. & Bat. (X. C.) oU5; Letl- better v. State, 23 Tex. App. 247 ; 4 BI. Com. 291. In Massachusetts, if the defendant escape from, or is out of the county in which the warrant is issued, the officer niay pursue and take him in any county in the Commonwealth, as if in his own county. Rev. Laws, c. 217, § 28. 91 Padfield v. Cabell, AVilles Rep. (Eng. Com. PI.) 411. A warrant of arrest is valid if it has the signature of the magistrate ; the seal is no longer necessary. Burley v. Grif- fith, 8 Leigh (Va.), 442. Contra : Tackett v. State, 3 Yerger (Tenn), 392. At common law, a .seal was not necessary to a warrant issued by a jnstice of the peace, and is only made so, even in criminal cases, when specifically reqnired by stat- ute. J^Iillett v. Baker, 42 Barb. (X. Y.) 21."). '-We are of tlie opinion that there was no settled rule at common law invalidating warrants not under seal, iniless the magistrate issuing the warrant had a seal of office, or a seal was required by statnte." Chief Justice Fl'llku, in Starr v. U. S., 153 U. S. 619. ^ Starr v. U. S., 153 U. S. 614. 32 THE LAW OF ARREST CHAPTER III WHO MAY ISSUE A WARRANT § 51. Mandamus may compel Justice to Act. — A justice before whom a complaint is laid, is bound to take some direct action on the facts laid in the complaint, and if he refuse to consider the facts, or what is of the same effect, if he decline to issue the warrant because of some reason not disclosed by the evidence before him, a mandamus will lie to compel the justice to take some action on the facts before him. But the limit of the writ of mandamus will be to compel action, and not to dictate what that action shall be. ^ § 52. Constitutional Provision. — It is prescribed by the Constitution of the United States, Article IV, Amendment, that no warrant shall issue " ex- cept upon probable cause supported by oath or affirmation, " and the constitutions of the several States have similar provisions. ^ The Complaint. § 53. Who may make Complaint. — It is usually provided by statute that any person having kuowl- 1 15 Eng. Rul. Cases, 127; Hempstead Co. v. Graves, 41 Ark. 317. 2 See Const, of Mass. Part I., Art. XIV. WHO MAY ISSUE A WARRANT 66 edge of the commission of an offence for which a warrant may lawfully issue, may make a written complaint, subscribed by him, together with the required oath or affirmation before the proper offi- cer, whereupon the warrant may issue. ^ When an arrest is made without a warrant, the arresting party should, upon delivering his prisoner to the proper authority, immediately make a complaint setting forth the offence for which the arrest was made. Without the complaint the court would not have jurisdiction to try or dispose of the cause* § 54. Not necessarily made in Writing. — Unless required by statute, the complaint need not be in writing.^ § 55. Who may issue Warrants. — The statutes of the particular State in which the arrest is to be made usually designate the officers who have powers to issue warrants of arrest.*^ In Massachusetts, a justice or special justice of a district court may receive complaints and issue warrants when the court is not in session ; and it is to be presumed that the justice acted within the s Rev. Laws of Mass. c. 217, § 22. * Tracy v. Williams, 4 Conn. 107 ; Bingham c. State, 59 Miss. 530 ; Prell v. McDonald, 7 Kan. 426. 6 State V. Killett, 2 Bailey (S. C), 280. ^ In Massachusetts, warrants may be issued by justices of the supreme judicial court, of the superior court, or of tiie police, district, or municipal courts, aud trial justices, llev. Laws of Mass. c. 217, § 21. 3 34: THE LAW OF ARREST authority given him, and that the court was not in session when the warrant was issued.^ § 56. "Warrant issued •without Complaint is Ille- gal. — It is the duty of the magistrate before issuing a warrant to require evidence on oath amounting to a direct charge, or creating a strong suspicion of guilt. ^ A warrant issued upon common rumor and report of the guilt of the accused, though it recites that there was danger of his escaping before wit- nesses could be summoned to enable the judge to issue it upon oath, is illegal, and the officer was justified in refusing to serve it,^ because it was void upon its face. § 57. Constitutional Provisions. — There being some doubt whether the common law absolutely required that a warrant should issue only upon information on oath, the clause concerning probable cause on oath was added to the fourth amendment to the Constitution of the United States. The legal effect of this provision of the Constitution is that process of any kind for the arrest of a person on a criminal charge is void, unless issued upon sufficient information under oath, and an arrest thereon is unlawful. ^*^ ■^ Com. V. Lynn, 154 Mass. 405. 8 Com. V. Phillips, 16 Pick. (Mass.) 214; State v. Mann, 5Ired. (N. C.) 45. ^ Connor v. Com., 3 Binn. (Pa.) 38. 10 Sprigg V. Stump, 8 Fed. Rep. (U. S.) 207. Contra: State 0. Killett, 2 Bailey (S. C), 289. WHO MAY ISSUE A WARRANT 35 § 58. " Subscribed " means " "Written Beneath." — • When the statute requires that a complaiut shall be " subscribed," that is, written beneath, it is not sufficient that the signature of the complainant be placed below the description of the goods stolen, and above the charge of larceny, ^^ for, said the court in this case, " Such looseness and carelessness in instituting criminal proceedings are not to be encouraged. " § 59. Statutory Jurisdiction implies Power to Arrest, — Where a statute gives a justice jurisdic- tion over an offence, it impliedly gives him power to apprehend any person charged with such of- fence, and especially after a party has neglected a summons. ^^ In any proceeding of a criminal nature, and brought in the name of the commonwealth, a jus- tice has authority to proceed by a warrant of arrest or a summons at his discretion. The power of arrest is laid down to attend all offences which jus- tices of the peace have authority, by statute, to punish. It is necessary to prevent tlie escape of transient and irresponsible persons, and yet should be exercised with caution and moderation. ^^ § 60. Warrant directed to a Private Person. — It has been decided that warrants may be directed " Com. v. Barhight, 9 Gray (Mass.), 113. 12 Bane v. Methueii, 2 Bing. (Eng. Com. VI.) 63. " Com. V. Borden, 61 Pa. St. 272. 36 THE LAW OF ARREST to private persons as well as officers,^* but a warrant may be directed to a private person only in case of necessity, and when that necessity is expressed in the warrant. ^^ A private person cannot deputize another to serve a warrant directed to him, although he may demand assistance. § 61. Warrant directed to Officer. — AVarrants may be directed to officers either by their particu- lar names, or by the description of their office; and it has been decided that in the first case the officer may execute the warrant anywhere within the ju- risdiction of the magistrate who issued it; in the latter case not beyond the precincts of his office. And where a warrant of a magistrate was directed, " To the constables of W. and to all other his majesty's officers," it was held that the constables of W. , their names not being inserted in the war- rant, could not execute it out of the district. ^^ § 62. Delegating Authority to serve Process. — An officer to whom process is directed may deputize another to serve the process within his presence, that is, within the sight or hearing of the superior 1* Dehm v. Hinman, 56 Conn. 320; Doughty r. State, 33 Tex. 1; State v. Ward, 5 Harr. (Del.) 496; Dietrichs v. Schaw, 43 Ind. 175; Hayden v. Songer, 56 Ind. 42. 15 Com. V. Foster, 1 Mass. 493 ; Meek v. Pierce, 19 Wis. 318. 16 Rex V. Weir, 1 Barn. & Cres. (Eng. K. B.) 288 ; Paul V. Vaukirk, 6 Binn. (Pa.) 123. WHO MAY ISSUE A WARRANT 37 officer who has possession of the warrant,^' but the deputized party cannot re-delegate his authority. ^^ Arrest for Contempt. § 63. Contempt of Legislative Body. — A legis- lative body, when acting in a judicial capacity, has authority to issue a warrant for the arrest of such persons as are guilty of contempt of that body ; but a sergeant-at-arms of the United States, to whom a warrant is directed, has no authority to appoint a deputy to execute that warrant outside of a place where the United States has exclusive jurisdiction. ^9 § 64. Contempt of Court. — When a judge, in the legitimate exercise of his jurisdiction, is defi- antly disobeyed, he may commit the offender in- stantly to prison for contempt of court ; and where a judge of a superior court, acting within his juris- diction, commits for contempt, he is not bound in the warrant (if a waiTaut is made out) to set forth particularly the ground of the commitment. ^^ " People V. McLean, 68 Mich. 480; Kirbie v. State, o Tex. App. 60; Ex parte McManus, 32 New Biuiiswirk, 481 ; Bowling V. Com., 7 Ky. L. Rep. 821 ; Com. v. Black. 12 Pa. Co. Ct. 31; Com. v. Field, 13 .Mass. 321 ; State r. Ward, 5 Harr. (Del.) 496. See § 75, infra. ^* State V. Ward, supra cit. 19 Sanborn i-. Carleton, 15 Gray (Mass.), 399. '^ 15 Eng. Ilul. Cases, 1. 38 THE LAW OF ARREST If the contempt is in the face of the court no warrant is necessary ; an order is sufficient. ^^ If a justice of the peace has power to commit for contempt, it must be by a warrant in writing, for a time certain i^^ but a judge of a superior court may commit for an uncertain time. 21 Holconib V. Cornish, 8 Coun. 374. 22 Rex V. James, 5 Bara. & Aid. (Eug. K. B.) 894. WHAT CONSTITUTES AN ARREST 39 CHAPTER IV -WHAT CONSTITUTES AN ARREST i § 65. Definition. — To arrest is to deprive a person of his liberty by legal authority. It is the seizing a person and detaining him in the custody of the law. 2 § 66. Requisites of a Legal Arrest. — To consti- tute a legal arrest it is necessary that the arrest- ing party have lawful authority, and exercise that authority in a lawful place, and at a lawful time, and that the arrested party be not exempt from arrest. To complete an arrest there must be a taking into custody, either by touching the defendant for tlie purpose of arresting him, which purpose must l)e brought to the knowledge of the defendant, or by his submission to words of arrest with the knowl- edge that he is being arrested. ^ 1 See also "False Imprisonment," § 271 et seq. '•^ Bouvier's Law Dictionary (Arrest). iMontc^omer}'' County V. Robinson, S') 111. 174 [quoting Bouvier's Law Diet.]. "Apprehension" is more ])roperIy used in criminal cases; "arrest" in civil cases. Ilogan r. Stophlet, 17l» 111. 150. 2 Steenerson v. Polk Co. Com'rs, G8 ]Miun. 509. 40 THE LAW OP ARREST § 67. Reading "Warrant is not Sufficient. — Merely reading the warrant to the accused does not make an arrest* But where an officer went to the accused with a warrant, and finding her sick in bed, read it to her, and told her that if she did not give a bond he " would haul her to jail," it was held that there was an arrest, although he did not touch her or exercise any physical control over her.^ § 68. Importance of Consummation of the Arrest. — The completion of the acts which constitute an arrest becomes very important in certain cases, for until this act of taking into custody is consum- mated, there can be neither a criminal rescue of the prisoner, nor a criminal escape by him. And an action of false imprisonment will not lie against the arresting party until all the acts necessary to a legal arrest have been consummated. In an action for false imprisonment the following facts appeared : An officer having a warrant for the arrest of the plaintiff and two of his sons, met the plaintiff and one of his sons in a wagon. The officer said : " I have a warrant for you and your two sons. " The plaintiff asked : " What for ? " The officer replied : " For stealing pumpkins. " The plaintiff started to get out of the wagon, when the officer said : " You can go home and get your * Baldwin r. Murphy, 82 111. 485; George v. Radford, 3 C. & P. (Eng. N. P.) 464. ^ Shannou v. Jones, 76 Tex. 141. WHAT CONSTITUTES AN ARREST 41 horses put up and take your tea, and come down. " The plaintiff went home, and with his two sons went to the house of the officer, and called out : " Here 's your prisoners. " The officer said : " You move on and I will over- take you. " They went on. The officer overtook them as they got to the house of the justice, and they went in together. Held, that the evidence showed an arrest of the plaintiff.^ § 69. Touching the Accused is not Necessary. — In making an arrest it is not necessary that the party making the arrest shall even touch the person of the arrested party, but it is enough if the arrested party is in the power of the party making the arrest, and submits to the arrest,^ with the knowledge that he is being arrested.^ § 70. Understanding of the Parties is Important. — In construing the acts relied upon to establish the arrest, tlie intent and understanding of the 6 Searles v. Viets, 2 Thomp. & C. (N. Y.) 224. '' ]\Iowry V. Chase, 100 Mass. 79; Gold v. liis.sell, 1 Wend. (N". Y) 210; Ahem v. Collins, 39 Mo. 145; Alderich v. Ilumplney, 29 Out. 427; Warner v. Riddiford, 4 C. B. n. s. (Eng.) 180; Searles v. Viets, 2 Thomp. & C. (X. Y.) 224; Tracy r. Seamans, 7 N. Y. St. 144; Journey r. Sharpe, 49 N. C. 165; Brushaber f. Stegemann, 22 Mich. 2i)G; Shannon r. Jones, 76 Tex. 141; Courtoy v. Dozier, 20 Ga. 309; Field V. Ireland, 21 Ala. 240; McCracken v. Ansley, 4 Strub. (S. C.) 1. 8 Jones r. Jones, 13 Ired. (N. C.) 448. 42 THE LAW OF ARREST parties become very importaut; and whether the parties understood the acts to amount to an arrest is a question of fact for the jury. ^ § 71. Complete Control is Sufficient. — If an officer assumes control over the person of the de- fendant, as where when in a room with the accused he locks the door, and tells him that he is a pris- oner, there no submission or touching is necessary, for the defendant has been completely taken into the custody of the law. i*' § 72. Avoiding Custody by Accepting Alterna- tive. — Where the accused, to avoid being taken into custody, accepts an alternative which is offered him by the arresting party, there the arrest is complete, although no physical control is exercised. As where an officer came to the room of the party whose arrest was sought, and finding him ill in bed, told him that unless he deliver a certain article or find bail, he must either take him or leave a man with him, and the party complied with his order, it was held a sufficient arrest.-'^ But where an officer stated to the defendant that he had a capias for him, and the defendant asked for a couple of days to procure a bond, to which the officer assented, and upon receiving the bond two 9 Jones V. Jones, 13 Ired. (N. C.) 448. i» Williams v. Jones, Cas. temp. Hard. (Eng. K. B.) 298. 11 Grainger v. Hill, 4 Bing. N. C. (Eng. C. P.) 212. WHAT CONSTITUTES AN ARREST 43 days later, indorsed the arrest on the capias as of that date, it was held that there was no arrest prior to giving the bond. ^^ § 73. Bare "Words not SufiBcient to Arrest. — Bare words alone will not make an arrest, if the defendant resists the arrest. ^^ In such case there must be an actual touching of the person of the defendant in order that the arrest be effective,^* and in all cases there must be a restraint of the person, — a taking into custody. ^^ So where a salesman, upon suspicion that a person had stolen goods from his employer's store, touched the suspected person on the shoulder and requested her to return to the store, which she did, it was held there was no arrest, there being no restraint or compulsion exercised. ^^ And where an officer had a warrant against the accused, and went upon his premises, saying, " I arrest you, " the accused with a fork in his hand pre- vented the officer touching him, and retreated from the officer's presence, it was held not to be an arrest, because there was no submission or restraint. ^'^ I'"' McCiacken v. Ansley, 4 Strob. (S. C.) 1. 13 Searles v. Yiets, 2 Tliomp. & C. (N. Y.) 224 ; Hill r. Taylor, 50 Mich. 549; Conoly v. State, 2 Tex. App. 412; Iliissen V. Lucas, 1 C. & P. (Eng. N. P.) 153. " Genner v. Sparks, 1 Salk. (Eng. K. B.) 79. 15 French v. Bancroft, 1 ^letc. (Mass.) 502; Kernan v. State, 11 Ind. 471. 16 Ilershey v. O'Neill, 36 Fed. Rep. (U. S.) 168. " Genuer v. Sparks, 1 Salk. (Eng. K. B.) 79. 44 THE LAW OF ARREST § 74. Touching consummates Arrest, though Ac- cused takes Immediate Flight. — An officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him.^^ § 75. Arresting Hand may be of Officer's Assist- ant. — And it is not necessary that the arresting hand be the officer's own hand, but may be that of an assistant, even though the officer is not actually in sight ; yet when an arrest is made by his as- sistant or follower, the officer ought to be so near as to be considered as acting in it. ^^ A private person who is a member of a sheriff's posse may make a legal arrest, though the sheriff is at a considerable distance away, provided he is within the county proceeding about the business of the arrest, because he is then constructively present. ^^ And the question in these cases does not turn on the fact of distance, so long as the officer is within his territory, and is bona fide and strictly engaged in the business of the arrest. So where an officer having a warrant to apprehend several persons who had riotously assembled and when in endeavoring ^8 Whitehead v. Keyes, 3 Allen (Mass.), 495; U. S. v. Benner, Bald. (U. S. c' C.) 23.9. 19 Emery v. Chesley, 18 N. H. 198; Whitehead v. Keyes, supra cit. 20 Robinson v. State, 93 Ga. 77. WHAT CONSTITUTES AN ARREST 45 to serve his process he was resisted, and, heing unable to make the arrest, commanded several persons to assist him and guard the house while he went to the next town, about four miles distant, to get a sufficient force to enable him to execute the warrant, it was held that the officer was constriic- in-eZ// present, and that during his temporary absence for the purpose of getting further assistance, those whom he had commanded to assist him, and who by that command were bound to assist him, were liable to punishment for permitting or assisting the offenders to escape. ^^ § 76. Time of Arrest. — A person may be appre- hended on a criminal charge at any time, in the night as well as in the day,^ and it lies within the officer's discretion to choose the night instead of the day for the purpose of making an arrest. ^^ Though the common law prohibits arrests on Sun- days, it excepts the cases of treason, felony, and breach of the peace. ^'^ " Breach of the peace" is 21 Coyles V. Hurtin, 10 Johns. (X. Y.) So. 22 .Mackalley's Case, 9 Coke (Eng. K. B.), 66; "Willianis V. State, 41 Ala. 41. Respecting arrest after sunset in civil cases, the Massachusetts statute provides, " An arrest shall not be made after sunset, in cases in which a certificate of a magistrate is required, unless it is specially authorized therein for cause." Rev. Laws of Mass. c. 168, § 27. 23 Wright V. Keith, 24 Me. 163. 2* By Stat. 29 Car. II. c. 7, § 6, " No person upon the Lord's day shall serve or execute, or cause to be served or 46 THE LAW OF ARREST held to include all indictable offences, ^^ therefore the common law only prohibited arrests in civil cases on Sunday. § 77. Place of Arrest. — Respecting the place of arrest, it may be said that no place affords protec- tion to offenders against the criminal law. Yet to preserve order and decorum, an arrest could not be made in open court, but should be made after the adjournment of court, or outside the court-room. And even the clergy may, on a criminal charge, be arrested while in their churches, ^^ though it is illegal to arrest them in any civil case while in the church to perform divine service, or going to or returning from the same, on any day.^'^ Without a warrant an arrest can only be made in the State wherein the offence was commited.^** § 78. Officer must make knovirn his Authority. — A person about to be arrested is entitled to know that he is arrested by lawful authority,^ and after executed, any writ, process, warrant, order, judgment, or decree, except in cases of treason, felony, or breach of the peace." 25 Rawlins v. Ellis, 16 Mees. & W. (Eng. Exch.) 172 ; Keith V. Tuttle, 28 Me. 326 ; Ex parte Levi, 28 Fed. Eep. (U. S.) 651. 26 Pit V. Webley, Cro. Jac. 321 ; State v. Dooley, 121 Mo. 591 ; Ledbetter u. State, 23 Tex. App. 247. ^^ Bacon's Abr. Trespass, 23. 28 State V. Shelton, 79 N. C. 605 ; Tarvers v. State, 90 Tenn. 485; Malcolrason v. Gibbons, 56 Mich. 459. Contra: State I'. Anderson, 1 Hill (S. C), 327. 29 State I'. Phinney, 42 Me. 384; Com. v. Weathers, 7 WHAT CONSTITUTES AN ARREST 47 being apprised of the lawful authority, if he sub- mits to the arrest,^ he has a right to know the grounds on which he is arrested. But a person resisting arrest is not entitled to see the warrant or know its contents so long as he resists ;^^ and whether he resists or not, if he has actual notice of the lawful authority by which he is arrested, the officer is not obliged to show or read his warrant.*^ § 79. OfiBcer need not Imperil his Precept. — An officer is not required in any case to part with the warrant from his possession, for that is his justifi- cation.^^ Nor is he bound to exhibit it when there is reason to apprehend that it will be lost or de- stroyed ; he must, however, in some way inform the Kulp (Pa ), 1; Kindred r. Stitt, 51 111. 401 ; State v. Miller, 7 Ohio X. P. 4.58. ^ State V. Townsend, 5 Harr. (Del.) 487; Lewis i-. State, 3 Head (Tenn.), 127; Arnold v. Steeves, 10 Wend. (X. Y.) 514; State v. Curtis, 2 X. C. 543: Plasters v. State, 1 Tex. App. 673 ; State v. Miller, 7 Ohio X. P. 458: State v. Gay, 18 Mont. 51. 31 Com. V. Cooley, 6 Gray (Mass.) 350; Cora. i-. Ilewes, 1 Brewst. (Pa.) 348. 82 People V. Wilson, 55 Mich. 50G; see § 81, infra; Com. V. Cooley, supra cit. ; State v. Townsend, 5 Harr. (Del.) 487 ; Bellows ('. Shannon, 2 Hill (X. Y.), 86; State v. Dula, 100 X. C. 423; People r. Moore, 2 Doug. (Mich.) 1; State v. Spaulding, 34 Minn. 301 ; Com. v. Hewes, 1 Brewst. (Pa.) 348; State r. Caldwell. 2 Tyler (V"t.), 212 ; U. S. v. Jailer, 2 Abb. (U. S.) 265; U. S. v. Rice, 1 Hughes (U. S.), 560. Contra: Steenerson v. Polk Co. Com'rs, 68 Minn. 509. 8« State V. Phinuey, 42 Me. 390. 48 THE LAW OF ARREST party that he has a warrant, and comes as an officer to execute it, and not as a wrongdoer.^'* But the arresting party is not obliged to show his warrant if the arrest might be lawfully made without a warrant. § 80. Effect of OfBcer's Failure to exhibit his Authority. — Where an arrest has been made by a party not known to be an officer, and who refuses, on demand, to exhibit his precept or declare his authority, and resistance is made to such officer, and death ensues to the officer from such resistance, such killing will not be murder, but manslaughter only. ^^ And it has been held that the settled rule " where a person having authority to arrest, and using the proper means for that purpose, is resisted, he can repel force with force, and if the party mak- ing the resistance is unavoidably killed, the homi- cide is justifiable," may be invoked by a person who resists and kills the officer, if he was ignorant of the fact that he was an officer. ^^ The only effect of the omission of the officer to declare his authority, or to show his warrant where it is his duty to show it, is to deprive him of the protection which the law throws around its minis- ters, when in the rightful discharge of their official duty. 37 84 Bellows V. Shannon, 2 Hill (N. Y.), 86. 85 State V. Phinney, 42 Me. 390. 86 Starr v. United States, 153 U. S. 614. 8'^ State V. Phinney, supra cit. WHAT CONSTITUTES AN ARREST 49 § 81. Arrest by Known Of5cer is Notice of Authority. — A person is held to know that he is arrested by lawful authority when the arrest is made by an officer, within his own jurisdiction, who is generally known to be an officer.^ And this knowledge is presumed to exist when the arresting officer is in the uniform of a police officer, or when the officer exhibits tl\e badge of his office. ^^ But the knowledge will not be presumed to exist unless the circumstances are such that the accused may clearly be presumed to know that the party arresting was an officer in uniform. So where the prisoner, on a dark night, was pursued by a mob, which, having severely beaten him, now threatened to kill him for having wounded one of their number in a fight, and one of the pursuers, who was an officer in uniform, being in advance of the others, seizes the prisoner, and the prisoner kills him, it is a justifiable act of self-defence, unless the prisoner knew that the party who had seized him was an officer, which, on account of the existing darkness and other circumstances, was extremely doubtful. *" 8' Com. V. Cooley, 6 Gray (Mass.), 3i50; State v. Town- send, 5 Harr. (Del.) 487; U. S. v. Rice, 1 Hughes (U. S.), 560 ; People i\ Moore, 2 Doug. (Mich.) 1 ; State r. Spauldintf, U Minn. 361; Bellows r. Shannon, 2 Hill (X. Y.), 8fJ; U. S. V. Jailer, 2 Abb. (U. S.) 265; State v. Caldwell, 2 Tyler (Vt.), 212; State r. Dnla, 100 N. C. 423; Com. v. Hewes, 1 Brewst. (Pa.) 318. '^^ Yates r. People, 32 X. Y. 509. *o Yates v. People, 32 N. Y. 509. 4 60 THE LAW OF ARREST § 82. One not a Known Officer must show his "Warrant. — Any one who is not a known officer acting within the limits of his jurisdiction must exhibit his warrant before making an arrest, if called upon to do so by the party whose arrest is sought, if the warrant is necessary to the arrest. ^^ And a special officer must show his warrant if de- manded, not otherwise.*^ § 83. Actual Notice obviates Necessity of Read- ing Warrant. — Actual notice to the arrested party, in any manner, that the arrest is by lawful author- ity, releases the officer from his duty to show his warrant or read it to the accused.**' § 84. Strangers not entitled to Notice. — And in no case is an officer obliged to show his warrant to any person other than the party arrested, nor to him except on request.** § 85. Notice may be Constructive. — Notice of authority to arrest may also be presumed from the *i People V. Moore, 2 Doug. (Mich.) 1; Bate.s r. Com., 13 Ky. L. Rep. 132; State v. Stancill, 128 N. C. 6U6; Frost V. Thomas, 24 Wend. (N. Y.) 418 ; Arnold v. Steeves, 10 Wend. (X. Y.) 514; State i?. Dula, 100 N. C. 423; Cortez V. State, 69 S. W. (Tex.) 536 ; State v. Garrett, 60 N. C. 144. But see U. S. v. Rice, 1 Hughes (U. S.), 560. ^2 State f. Dula, supra cit. ; State v. Curtis, 2 N. C. 543. 43 Com. V. Cooley, 6 Gray (Mass.), 350; State v. Town- send, 5 Harr. (Del ) 487; People v. Wilson, 55 Mich. 506. « 1 East P. C. 317 ; 1 Hale's P. C. 458. WHAT CONSTITUTES AN ARREST 51 circumstances of the case ; as where even a private person attempts to arrest one in the act of commit- ting a felony, or where the offender is immediately pursued from the scene of his crime, it is sufficient notice to the party whose arrest is sought. ^^ § 86. Resisting Arrest. — Mere resistance of legal arrest is a crime, ^^ because it involves an assault upon the officer; and if the arresting person is killed by the accused or his friends, it is murder.*" If the resisting person is killed, it is no more than manslaughter, and may be a justifiable homicide.*^ But a person illegally arrested may use such force as is necessary to regain his liberty, and should there be reasonable ground to believe that the officer making the arrest intends shooting the pris- oner to prevent his escape, such prisoner may shoot the officer in self-defence.*^ If, however, the per- son resisting illegal arrest kills merely to prevent the arrest, and not for the purpose of saving himself from serious personal injury, he is guilty of man. slaughter, but not of murder. ^^ And whether the arrest be legal or not, the power of arrest may be exercised in such a wanton and « Wolf y. State, 19 Ohio St. 248; Shovlin v. Com., 106 Pa. St. 369 ; People v. Pool. 27 Cal. 572. *« People v. Haley, 48 Mich. 495 ; State i-. Belk, 76 N. C. 10. ^■^ iMockabee r. Com., 78 Ky. 380. 48 State V. Rose, 142 Mo. 418. "9 :Mier.s v. State, 34 Tex. Cr. Rep. 161. 50 Com. y, Carey, 12 Cush. (Mass.) 246. 52 THE LAW OF ARREST menacing manner as to threaten the accused with loss of life, or some bodily harm. In such a case, though the attempted arrest was lawful, the killing would be justifiable.^^ A charge of resisting an officer cannot be sustained unless the officer resisted was authorized by law to make the arrest at the time and place where the arrest was attempted. ^^ If the arrest was by warrant, the process must have been valid on its face, and from a court of compe- tent jurisdiction.^^ It is no defence to a charge of resisting an officer, that the person whose arrest was attempted was not guilty of the offence charged.^* But where the arrest of the wrong person is at- tempted, the arrest may be resisted. °^ § 87. After making Arrest. — OfScer's Duty. — It is the officer's duty, upon making an arrest, to keep the prisoner within his custody until he is lawfully committed, discharged, or admitted to bail by order of the court. ^^ ^1 Jones V. State, 26 Tex. App. 1 ; State v. Dennis, 2 Marv. (Del.) 433. 52 Cantrill v. People, 3 Gil. (111.) 357; State v. Estis, 70 Mo. 427 ; State i-. Hooker, 17 Vt. 658. 53 State v. Leach, 7 Conn. 452 ; Housh v. People, 75 111. 491; State v. Beebe, 13 Kan. 589; People v. Ah-Teung, 92 Cal. 421 ; State v. Jones, 78 N. C. 420. " Com. V. Tracey, 5 Mete. (Mass.) 552 ; State v. Garrett, 80 Iowa, 590. 55 Wentworth v. People, 4 Scam. (111.) 555; State v. Free- man, 8 Iowa, 428. 56 Com. L\ Morihan, 4 Allen (Mass.), 585. what constitutes an arrest 53 Escape. § 88, Definition. — Escape is departure of a pris- oner from custody before he is discharged by due process of law. 5' § 89. Liability of Officer. — Should the officer, by his willingness or negligence, allow the prisoner to escape from his custody, he is liable. °^ It is not conclusive evidence of negligence against the officer that he did not handcuff his prisoner. ^^ If the escape is voluntary, and the prisoner was guilty of felony, the escape is a felony on the part of the officer. ^^ If the escape is merely by the offi- cer's negligence, it is only a misdemeanor in any case. The only excuse that an officer can set up, when answering for the escape of a prisoner, is that it w^as by act of God, or the enemies of the country, '^^ that is, the members of a nation at war with our country. But an officer is not criminally respon- sible for an escape by reason of the negligence of " Bouvier's Law Diet. (Escape) ; Com. v. Farrell, 5 Allen (Mass.). 130; State v. Davis, 14 Nev. 446; Butler r. Wash- burn, 25 N. H. 251 ; Randall v. State, 53 N. J. L. 488; Ex parte Clifford, 29 Ind. 106: State v. Brown, 82 X. C. 585. 68 State V. Ritchie, 107 N. C. 857; Garver i'. Ter., 5 Okla. 342 ; Shattuck i'. State, 51 Miss. 575. 69 State V. Hunter, 94 N. C. 829. w 2 Hawkins' PI. C. c. 19, § 25. 61 Fairchild v. Case, 24 Wend. (N. Y.) 383. 54 THE LAW OF AEREST an assistant, if he used due care in selecting and appointing the assistant. ^^ If an officer makes an arrest, and has the prisoner admitted to bail in the same county, on an indorsed warrant issued in another county, he is guilty of a voluntary escape. In such case it is the officer's duty to retake the prisoner, and he may do so on the same warrant. '^^ And where a constable arrested the defendant on a warrant issued by a justice of the peace, and left him on his promise to follow him, and the accused was later arrested by a deputy sheriff, and taken to jail on a criminal process, so that the constable could not take him before the justice of the peace on the warrant, it was held that by the constable leaving his prisoner, after effecting the arrest, there was a voluntary escape, and the officer, being unable to retake him, was held liable for the escape.^"* There can be no escape from custody where the arrest was made by a void warrant, ^^ or where the act of taking into custody did not in itself amount to an arrest. An officer may arrest with or without warrant^ 62 state r. Lewis, 113 N. C. 622. «3 Clark V. Cleveland, 6 Hill (N. Y.), 344. 64 Olmstead v. Raymond, 6 Johns. (N, Y.) 62. «5 Housh v. People, 75 111. 487; Hitchcock v. Baker, 2 Allen (Mass.), 431. 66 Com. V. Sheriff, 1 Grant (Pa.), 187 ; Floyd v. State, 79 Ala. 39; Clark v. Cleveland, 6 Hill (N. Y.), 344; State WHAT CONSTITUTES AN ARREST 55 one who has escaped from custody either before or after trial and commitment/^'' and it is immaterial whether the offence originally charged was a crime or misdemeanor, or whether the person escaping was guilty or innocent of the offence charged, because an unlawful departure from legal custody is always a criminal offence. ^^ If an officer makes an illegal arrest, and then accepts a bribe from his prisoner to allow him to escape, he is guilty of bribery not- withstanding the arrest was illegal. ^^ V. Wamire, 16 Ind. 3.57; Hollon v. Hopkins, 21 Kan. 6-38. But see Doyle v. Russell, 30 Barb. (X. Y.) 300. «^ McQueen v. State, 130 Ala. 136. «8 Com. V. Miller, 2 Ashra. (Pa.) 68; Holland v. State, 60 Miss. 939 ; State v. Bates, 23 Iowa, 96. *^ Mosely v. State, 25 Tex. App. 515. 56 THE LAW OP ARREST CHAPTER V ARREST WITH WARRANT § 90. Name of Arrested Party must appear in ■Warrant, — A warrant will not justify the arrest of one not named therein, by reason of the fact that the name used was supposed to be his. ^ § 91. Valid "Warrant protects Officer. — If a war- rant is lawful and regular on its face, disclosing no want of jurisdiction or other irregularity, and the magistrate issuing it has lawful authority to do so, the warrant is a complete protection to the officer who makes the arrest.^ And a valid warrant pro- tects an officer even though it be known that it was procured by fraud. ^ § 92. Invalid "Warrant is no Protection. — If a warrant is not valid on its face, or if the whole subject-matter is without the jurisdiction of the 1 West V. Cabell, 153 U. S. 78. 2 Clark V. May, 2 Gray (Mass.), 410; Wright v. Keith, 24 Me. 158; Housh v. People, 75 111. 491; State v. James, 80 N. C. 370; Mangold v. Thorpe, 33 N. J. L. 134. See § 29, supra. 8 Wilmarth v. Burt, 7 Mete. (Mass.) 257. ARREST WITH WARRANT 57 magistrate, the officer is really acting without any warrant at all, and thereby becomes a trespasser, if a private person under the same circumstances would be a trespasser. Tt is held by some authori- ties that the officer's life may be taken, if neces- sary, in resisting such unlawful arrest,^ while other decisions hold that in case of an attempted illegal arrest by a known officer, it is not lawful to take life in resisting the arrest, and that if a person kills a known officer to prevent him making an illegal arrest, he is guilty of manslaughter at least,^ and may be guilty of murder if the killing was prompted by personal malice against the officer.^ If an officer kills in the act of serving void process, he is guilty of murder. And here it may be noted that through- out the law of arrest, the necessity of the case, when human life is to be taken, is of paramount impor- tance, for nothing short of the sternest necessity will justify the act. A party cannot reasonably apprehend any serious consequences to himself by submission to an illegal arrest by a known officer, beyond a temporary in- vasion of his right of personal liberty, and the law does not sanction the taking of life to repel every threatened trespass, or invasion of personal rights.' < Com. V. Crott}% 10 Allen (Mass.), 403. ^ State V. Cantieny, 34 ]Minii. 1. « Rafferty r. People, I'l 111. 37. " Com. V. Drew, 4 ]\Iass. 391 ; State r. Cantieny, supra cit. ; Williams v. State, 44 Ala. 41. 58 THE LAW OF ARREST § 93. When a "Warrant is Void. — A warrant is void if it has no seal,^ when a seal is required by statute, or if it is not supported by sufficient oath or affirmation and that fact appear on its face,^ or if it does not sufficiently describe the person to be arrested, so that from the description he may be identified ; ^^ as where a warrant is issued against " John Doe or Richard Eoe, whose other or true name is to your complainant unknown, " with no other description or means of identification, the warrant is absolutely void and may be resisted with all necessary force. ^^ § 94. Rights of Strangers to interfere. — As a gen- eral rule, if the warrant be materially defective, or the officer exceeds his authority in executing it, any third person may lawfully interfere to prevent an arrest under it, doing no more than is actually necessary for that purpose. ^^ § 95. Liability of Officer's Assistant. — If the officer is liable as a trespasser, especially in the service of civil process, the assistant of such officer may also be liable in trespass. ^^ 8 State V. Drake, 36 Me. 366. Contra : Millett v. Baker, 42 Barb. (N. Y.) 215. See § 50, supra. 8 Griimon v. Raymond, 1 Conn. 40. 10 Com. V. Crotty, 10 Allen (Mass.), 403. " Com. V. Crotty, supra cit. 12 Com. V. Crotty, supra cit.; Rex v. Osmer, S^East (Eng. K. B.), 304. " Darling v. Kelley, 113 Mass. 29. ARREST WITH WARRANT 59 § 96. Taking Prisoner before a Magistrate. — The disposing of the prisoner becomes a very important matter after the consummation of a legal arrest, for if the disposition be not according to law, and as directed in the warrant,^* the officer will render himself liable for the abuse of his process. The first duty after making the arrest is to bring the prisoner with all reasonable speed ^^ before a magis- trate for examination, ^^ but if the prisoner is physi- cally incapacitated to be so brought, or if from other circumstances an immediate hearing is impossible, ^^ the officer may delay until the incapacity disap- pears, but no longer. The warrant need not state the time when the party is to be brought before the magistrate for the examination,^^ but it being the duty of every 1" 2 Hale's P. C. 119 ; Pratt r.Hill, 16 Barb. (X. Y.) 303. i» Green v. Kennedy, 46 Barb. (X. Y.) 16 ; Gary v. State, 76 Ala. 78; Habersham v. State, 56 Ga. 61. 16 Brock V. Stimson, 108 Mass. 520; Ocean Steamship Co. r. AVilliams, 69 Ga. 251 ; Twilley v. Perkins, 77 Md. 252 ; Pastor V. Regan, 62 N. Y. St. 204 ; Judson v. Reardon, 16 Minn. 431; Gary v. State, 76 Ala. 78; Simmons v. Vandyke, 138 Ind. 380; State r. Freeman, 86 X. G. 683; Muscoe v. Com., 86 Va. 443; Missouri, etc. R. Co. r. Warner, 19 Tex. Civ. App. 403; Ashley v. Dundas, 5 Up. Can. Q. B. o. s. 749. " Rohan v. Sawin, 5 Cush. (Mass.) 281; Wiggins r. Norton, 83 Ga. 148; State v. Freeman, 86 N. G. 683; Hutchinson v. Sangster, 4 Greene (Iowa), 340; Scircle v. Neeves, 47 Ind. 289. 18 Mayhew v. Parker, 8 T. R. (Durnf. & E. Eng. K. B.) 110. 60 THE LAW OF ARREST person who makes an arrest, whether he he an officer or a private party, to bring the prisoner before the proper magistrate without delay, a fail- ure of the arresting party to do so promptly will make him guilty of false imprisonment. ^^ Intoxi- cation of the prisoner, for example, will excuse delay in this respect so long as the intoxication exists. 2" The duty to present the prisoner for ex- amination is the same whether the arrest be with or without a warrant. § 97. OiScer's Right to release Prisoner. — By the common law , an oiftcer may make an arrest 'upon reasonable grounds of suspicion, and if his suspicions vanish, he may discharge the prisoner without bringing him before a magistrate. ^^ But this provision of the common law does not authorize the officer to detain the prisoner for the purpose of verifying his suspicions. § 98. OfEcer's Right to detain Prisoner. — When an officer under a warrant from a county court, commanding him to arrest the respondent, and have him brought before that court forthwith, ^» Porter r. Swindle, 3 S. E. Rep. (Ga.) 94; Burke v. Bell, 36 Me. 317. 20 Arneson v. Thorstad, 33 N. W. Rep. (Towa), 607; Wiltse V. Holt, 95 Ind. 469; Scircle r. Neeves, 47 Ind. 289; State V. Freeman, SG N. C. 683 ; Hutchinson v. Sangster, 4 Greene (Iowa), 340. 21 Barke v. Bell, supra cit. ARllEST WITH WARRANT 61 arrests the respondent, brings him to the place of holding such court, hut finds the court not in ses- sion, he may detain the respondent a reasonable time until he can ascertain whether it is possible to deliver him into court, and may lodge him in jail in the mean time for safe-keeping.^ § 99. Impossibility as a Defence. — It sometimes happens that it becomes impossible for an officer to perform a duty which the law has commanded him to do, but the impossibility is a good defence to an indictment for not performing the duty.^*^ If, for example, an officer has been commanded to deliver a prisoner to a certain official, or to have him at a certain place, and the official or the place has ceased to exist, the officer is excused from the performance of the command of the law, and would be justified in confining his prisoner in a suitable place until further order could be procured from the court for the disposition of the prisoner. § 100. The Place of Confinement. — Even a freight car is not, as a matter of law, an unsuitable place for confining a prisoner. 2* But it might be, as a matter of fact for a jury to consider, as, for ex- ample, if the freight car should expose the prisoner to the inclemency of the weather, or otherwise en- danger his health. So where an ofiicer arrested 22 Kent V. Miles, 65 Vt. 582. 28 Tate V. State, 5 Blackf. (Ind.) 73. 24 Arnesou v. Tliorstad, 33 N. W. Kep. (Towa), 607. 62 THE LAW OP ARREST one upon a charge of drunkenness, and confined him in the city guard-house, where during the night the prisoner died, the jury finding that his death was " accelerated by the noxious air of the guard-house," tlie city was held liable for thus im- properly confining the prisoner. ^^ An officer being responsible for the safety of his prisoner, the place of confinement is left largely to his discretion. And it was held that a United States marshal was justified in confining his prisoner in the State Penitentiary instead of the county jail, when, in his opinion, the safety and security of the prisoner required it.^^ § 101, Exercise of OfScer's own Judgment. — The question of what constitutes reasonable necessity very frequently arises in matters pertaining to the law of arrest. And it may be said that whenever an officer is called upon to exercise his own judgment, in any matter, the law not instructing him as to the course which he shall pursue, he is not liable if he does that, which, considering all the circumstances of the case, any other man of fair average intelligence would do under similar circumstances. That is, he is not required to exercise the highest grade of judgment, but he must not fall below that which is expected from the man of a fair average intellect. And any act or omission of an officer which arises 26 Lewis r. City of Raleigh, 77 N. C. 229. 26 Cliutou V. Nelson, 2 Utah, 284. ARREST WITH WARRANT 63 from the necessity of the case, v/ill justify the officer in acting or not acting only so long as the necessity exists.^" § 102. Prisoner may vraive Right to be taken before a Magistrate. — When the statute provides that the person arrested be brought before a magis- trate, the officer is liable for false arrest if he dis- charges the prisoner without bringing him before a magistrate, unless there is an express waiver by the prisoner of his right to be taken before a magistrate. ^^ As where an officer arrested the accused for in- toxication, between one and two o'clock in the morning, on a Sunday, and detained him until be- tween seven and eight o'clock in the afternoon of the next day, when it w^as found that the trial justice was detained out of town by reason of an unusual freshet which had rendered travelling unsafe. These facts were communicated to the accused, and upon his own request he was released from custody. Held, that an action for false im- prisonment did not lie. ^^ When, however, the arrest is by warrant, the duty of the officer to take the prisoner before a magistrate is an absolute duty ; therefore the pris- oner may not then waive his right to be taken 27 Tubbs V. Tukey, 3 Cush. (Mass.) 438. 28 Brock V. Stimson, 108 Mass. 520; Pbillips v. Fadden, 125 Mass. 198; Caffiey v. Drugan, U4 Mass. 294. 29 Caffrey v. Drugau, supra cit. 64 THE LAW OF ARREST before the magistrate, and nothing except impos- sibility will excuse the officer from obeying the command of the law. Civil Arrest. ^'^ § 103. Constitutional Prohibitions. — Fraud. — Imprisonment for debt arising out of contract is generally prohibited by constitutional provisions ; ^^ but these provisions do not apply where fraud is a factor in the charge ^'^ And the fraud charged must relate to procuring the contract to be made, or in attempting to evade performance.^^ Constitutional or statutory abolishments of im- prisonment for debt do not apply to tort actions, '*'* although the right to arrest in tort actions is ex- tensively regulated by the statutes of the several States. Nor do they apply to arrest for the non- payment of taxes. ^^ § 104. statutes must be Strictly followed. — A statute authorizing an arrest on civil process must be so strictly construed that process will only 33 Refer to index for other matters pertaining to tliis subject. 31 Act of Congress, Feb. 28, 1839. 32 Appleton V. Hopkins, 5 Gray (Mass.), 530. 33 In re Tyson, 32 Mich. 262. 3* McDuffie ('. Beddoe, 7 Hill (N. Y.), 578 ; U. S. v. Ban- ister, 70 Fed. Hep. (U. S.) 4i; Sedgebeer v. Moore, Brightley (Pa.), 197. 35 Appleton V. Hopkins, supra cit. ARREST WITH WARRANT 65 issue in cases that are clearly within the statute,^^ and all the proceedings in the arrest must strictly follow the statutory provisions. § 105. Debtor about to leave State. — Where the statute provides for the arrest of a debtor wlio is about to leave the State with intent to avoid tiie payment of his debts, he is not subject to such arrest if he leaves for a temporary absence only,^'' or if he leaves sufficient property within the State for the payment of the particular debt for wdiich he is arrested, although he does not leave sufficient property for the payment of all his debts, ^^ or if he leaves the State for the bona fide purpose of seek- ing employment elsewhere, or improving his con- dition. ^^ § 106. Must be a Fraudulent Intent. — To jus- tify the arrest, an intent to defraud must be proved.'*'^ A fraudulent intent also must be proved where an arrest is under a statute authorizing an arrest for the fraudulent concealment of property from a creditor. Therefore, one who wears his watch and carries his money with him in his usual manner is s" Meri'itt v. Openheim, 9 La. Ann. 51 ; Ilatliaway v. Johnson, 55 N. Y. 93. 8- ^lyall V. Wright, 2 Bush (Ky.)^ 130. 88 Carraby v. Davis, 6 Mart. n. s. (La.) 103. ^^ Stevenson v. Smith, 28 N. IL 12. *'^ Traniblay v. Graham, 7 Montreal Super. Ct. 37-1 ; Devries i\ Summit, 86 N. C. 126; Hudson's Case, 2 Mart. (La.) 172. 5 66 THE LAW OF ARREST not guilty of the fraudulent intent which is essen- tial to the maintenance of the action. *i § 107. Affidavit required by Statute. — The usual statutory provisions relating to the application for the writ or warrant for a civil arrest require that an attidavit be filed setting forth the facts constituting the cause for arrest. This affidavit must state that the affiant believes and has reason to believe that the defendant has property not exempt from execution which he does not intend to apply to plaintiff's claim. ^^ If the arrest is to be made because the defendant is about to leave the State, the affidavit must not only state that the defendant is about to leave the State, but must also aver that the affiant believes that the debtor is leaving with intent to defraud his creditors, after which probable cause for entertain- ing the belief should be shown by setting forth the facts upon which the belief is based. *^ § 108. Effect of Altering Writ. — If the writ is altered before it is served, a new aifidavit is neces- sary or the arrest will be illegal.^* ■ § 109. No Arrest after Attachment. — An arrest made after an attachment of property in the same action is altogether void.^^ « Clement v. Dudley, 42 N. H. 367. 42 Stone V. Carter, 13 Gray (Mass.), 575. 43 Wilson V. Barnhill, 64 N. C. 121. 4* Aniadon v. Mann, 3 Gray (Mass.), 467. « Almy V. Wolcott, 13 Mass. 76. ARREST WITH A M'ARRANT 67 § 110. OflEcer'a Liability for Escape. — An officer has authority to call for assistance in making an arrest on mesne process, but he is not obliged to do so. And he is not liable for an escape that might have been prevented by his calling for aid, if the party arrested by him rescues himself or is rescued by others. ^^ § 111. Insolvency Proceedings.- — AMiere a de- fendant has been legally arrested in a civil action, and while in custody files his voluntary petition in insolvency, he is not thereby entitled to be released from arrest.*^ 46 AVhitehead v. Keyes, 3 Allen (Mass.), 500; Sutton v. Allison, 2 Jones (X. C), 3il. *^ Hussey v. Danforth, 77 Me. 17. 68 THE LAW OF ARREST CHAPTER VI ARREST WITHOUT A WARRANT § 112. By Private Person in Case of Felony. — A private person may arrest without a warrant cue whom he sees committing a felony, or when a felony has been actually committed, and he has reasonable grounds within his own knowledge — that is, not merely from the hearsay evidence of the statements of third persons — for believing that the person whom he places under arrest is the felon. ^ But he has no right to make an arrest without a warrant when a felony has not in fact been committed, no matter how well founded may have been his belief that a felony had been 'committed. In other words, an arrest for felony by a private person without a warrant is lawful only when a felony has actually been committed, and he can justify his act of arrest by proof of the commission of the felony.^ 1 Ilolley r. Mix, 3 Wend. (N. Y.) 351; Ashley's Case, 12 Coke (Eng, K. B.), 90; Dodds v. Board, 43 111. 95; State v. Mowry, 37 Kan. 369 ; Kennedy v. State, 107 Ind. 144; Brooks V. Com., 61 Pa. St. 352 ; Long v. State, 12 Ga. 293 ; Wriglit V. Com., 85 Ky. 123. 2 " Even when there is only probable cause of suspicion, a private person may, without warrant, at his peril, make an arrest. I say at his peril, for nothing short of proving the ARREST WITHOUT A WARRANT 69 If a felony has actually been committed, a private person is justified in arresting one whom he has good reason to believe to be guilty of it, even though the person arrested should afterward be proven to be innocent.^ § 113. Assisting a Private Person. — A private person who has no reasonable grounds within his own knowledge to believe that a felony has been committed, has no right to assist another private person in making an arrest, who is acting without a warrant upon reasonable suspicion which would justify him in making the arrest.^ But if a private person knows that the one whom he seeks to arrest felony will justify the arrest," Tilghmax, C. J., in Wakely V. Ilart, 6 Binn. (Pa.) 316 ; Geary v. Stephenson, 169 Mass. 23; Carr v. State, 43 Ark. 99; Teagarden v. Graham, 31 Ind. 422; Davis v. U. 8., 16 App. Cas. (D. C.) 442; Groom V. State, 85 Ga. 718; Kindred r. Stitt, 51 111. 101 ; Siegel r. Connor, 70 111. App. 110; Cryer v. State, 71 Miss. 467; Sinimerman v. State, 16 Neb. 615; Reuck i-. ]\IcGregor, 32 N. J. 70; Farnam v. Feeley, 56 N. Y. 451; People v. Hochstim, 36 Misc. Rep. (N. Y.) 562; State v. Morgan, 22 Utah, 162; McCarthy v. De Armitt, 99 Pa. St. 63; Burch V. Franklin, 7 Ohio N. P. 155; Neal v. Joyner, 89 X. C. 287 ; U. S. V. Boyd, 45 Fed. Rep. (U. S.) 851. " Any one may arrest a thief without a warrant." Wrexfurd v. Sniitli, 2 Root (Conn.), 171. 8 Holley V. Mix, supra cit. ; Habersham v. State, 56 Ga. 61 ; Wilson y. State, 11 Lea (Tenn.), 310; Brockwayr. Crawford, 48 N. C. 433 ; Farnam v. Feeley, 56 N. Y. 451 : McKenzie V. Gibson, 8 Up. Can. Q. B. 100. * Salisbury v. Com., 79 Ky. 425. 70 THE LAW OF AEREST is a felon, he may command the assistance of a bystander. ^ § 114. Hue and Cry. — Under a " hue and cry," however, a private person may make an arrest, even though it should subsequently be shown that no felony had been committed. What is a Felony? § 115. Definition. — In English common law a felony comprised the commission of any species of crime which occasioned the total forfeiture of land and goods. ^ But this definition does not apply in the United States, because the Constitution of the United States, Article I, Section 12, provides that " no con- viction shall work corruption of blood, or forfeiture of estate. " Therefore an accurate definition of a felony can be found only in the statutes of the particular State wherein the offence is committed. The courts w411 not constrae an offence to be a felony unless such construction is made necessary by the express words of the statute, or by necessary im- plication,'' for the statutes are to be construed so as not to multiply felonies.^ 6 2 Hale's P. C. 76. « Ex parte Wilson, 114 U. S. 417, 423, citing 4 Blackstone's Commentaries, 94, 95, 310 ; Com. v. Carey, 12 Cush. (Mass.) 246 ; B. & W. R. Co. v. Dana, 1 Gray (Mass.), 83. "' Wilson V. State, 1 Wis. 163. 8 Com. V. Carey, 12 Cush. (Mass.) 246; Com. v. Carroll, 8 Mass. 490 ; Wilson v. State, supra cit. ARREST WITHOUT A WARRANT il Perhaps a fair statutoiy definition of a felony in the United States is as foUows : " A crime which is punishable by death or imprisonment in the State prison is a felony. All other crimes are misdemeanors. " ^ § 116. By Private Person in Case of Misde- meanor. — In misdemeanors, the right of a private person to arrest without a warrant is limited to cases of breach of the peace committed in the presence of the arresting party, ^'^ or to prevent the continuation of a breach of the peace which has temporarily stopped, Ijut which he has good and reasonable ground to believe will continue but for the arrest. ^^ Without a warrant he cannot make an arrest to prevent tlie commission of an afiray or breach of the peace which has not yet begun, but which is simply apprehensive, nor can he arrest without a warrant one who has com- mitted a breach of the peace after the act had been completed. ^^ 9 Revised Laws of Mass. c. 215, § 1. ^° People r. Morehouse, G N. Y. Suppl. 763; Phillips v. Trull, 11 Johns. (X. Y.) 486; Knot c. (Jay, 1 Root (Conn.), 66; Price v. Seeley, 10 CI. & F. (Eng. H. L.) 28; Forrester 1-. Clarke, 3 Up. Can. Q. B. 151; State v. Campbell, 107 X. C. 948; Com. v. McXall, 1 Woodw. (Pa.) 423; Barclay V. U. S., 11 Okla 503. ^^ Price V. Seeley, supra cit. ; Ingle i'. Boll, 1 M. & W. (Eng. Exch.) 516. " Shanley v. Wells, 71 111. 78. 72 the law of arrest What is a Breach of the Peace ? § 117. Definition. — The public peace is that sense of security which every person feels, and which is necessary to his comfort, and for which government is instituted ; and a breach of the public peace is the invasion of the security and protection which the law affords every citizen. ^^ A breach of the peace is a violation of public order, the offence of disturbing the public peace. An act of public indecorum is also a breach of the peace, i* § 118. Inciting Others to break the Peace. — Anything which tends to provoke or excite others to break the peace is in itself a breach of the peace. ^^ So where a striker meets a non-union workman on the street, and calls him " a damned scab, " the language, tending to provoke a conflict, is a breach of the peace. ^^ So is calling one " sheep thief," and following him, bleating like a sheep. ^^ And to call a man a " damn fool" and a " bastard " is a breach of the peace. ^^ 13 State V. Archibald, 59 Vt. 548. 1* Bouvier's Law Diet. (Breach of Peace) ; Galvin v. State, 46 Tenn. 283. 15 4 Bl. Com. 150. i« Com. V. Redshaw, 12 Pa. Co. Ct. 91 ; Com. v. Silvers, 11 Pa. Co. Ct. 481. 1^ State V. Warner, 34 Conn. 276. 1* Topeka v. Heitman, 47 Kan. 739. ARREST WITHOUT A WARRANT 73 § 119. No Defence that Words are True. — The essence of the offence of breaking the peace being the disturbance of the public tranquillity, it is no defence that opprobrious words, tending to provoke violence, are true. ^^ § 120. Doing LaTvful Act in a Turbulent Man- ner. — Where one attempts to abate a public nui- sance, in such a manner as to invite resistance, he is guilty of a breach of the peace. As where the defendant, armed with a pitchfork, hoe, and pistol, proceeds to remove an obstruction in the highway, knowing that the one who placed the obstruction there is guarding it, is guilty of a breach of the peace. 2*^ Breaking the locks of doors in such a manner as to provoke a breach of the peace, is a breach of the peace in itself. '-^^ §121. Violent Language. — Where the plaintiff, in a loud and boisterous manner, called the defend- ant, a police officer, a " God-damned son of a bitch," and other names, and threatened to kill the officer if he attempted to arrest him, the plaintiff was guilty of a breach of the peace. '^ If a man stops before the door of a dwelling- " Dyer v. State, 99 Ga. 20. 20 State V. White, 18 R. I. 473 ; State v. Flanagan, 67 Ind. 140; Day r. Day, 4 Md. 262. "^^ Taafe v. Kyne, 9 Mo. App. 1.5. 2- Davis I'. Burgess, 54 Mich. 514. 74 THE LAW OF ARREST house or shop and uses violent language toward the inmates, and thereby attracts a crowd, and will not desist when requested, he is guilty of a breach of the peace. 2^ So also if he uses loud and violent language in his own dwelling-house, addressed to inmates thereof, if the disturbance is such as to at- tract a gathering of persons outside of his house, this is a breach of the peace. ^^ And with much stronger reason would this amount to a breach of the peace if done in a public place. ^ § 122. Discharging Firearms. — The wanton dis- charge of a firearm in a public street of a city is a breach of the peace. -^ And where the defendant went to the house of the complaining witness, armed with a gun, during the absence of the male members of the family, and from the porch thereof shot and killed two of his dogs, which were lying in the yard, and thereby terrified the females in the house, such action constitutes a breach of the peace for which an indictment will lie.^" § 123. Disturbing Public "Worship. — The disturb- ance of public worship is an act tending to destroy 23 Cohen o. Huskisson, 2 M. & W. (Eng. Exch.) 482. But see Ware v. Leveridge, 75 Mich. 488. Compare State V. Schuermann, 52 Mo. 105. 2* Com. V. Foley, 99 Mass. 497. 25 McCandless v. State, 2 S. W. Eep. (Tex.) 811. 26 People r. Bartz, 53 Mich. 493. 2^ Henderson v. Com., 8 Gratt. (Va.) 708. ARREST WITHOUT A WARRANT 75 the public morals, and amounts to a breach of the peace. ^^ § 124. Prostitutes. — A prostitute who, on the street, or while sitting at the window of her room, solicits men from the streets for immoral purposes, is guilty of the offence. ^^ But an officer may not arrest one reputed a common prostitute who has committed no offence in his presence. ^"^ § 125. Must be a Public Disturbance. — An act cannot constitute a breach of the peace unless it dis- turbs the public, that is to say, an indefinite num- ber of persons. Therefore charging one with being a prostitute and keeping a house of ill fame, if the statement does not in itself tend to disturb others, is not a breach of the peace. ^^ § 126. Public Shouting. — Shouting in the streets of a village between nine and ten o'clock in the evening, so loudly as to be heard one hundred and fifty feet distant, is a breach of the peace. ^ But 28 U. S. r. Brooks, 4 Cranch C. C. (U. S ) 427. But a Sunday-school is not a place of religious " worship." Hubbard v. State, 32 Tex. Cr. 391. Contra: State i-. Stuth, 11 Wash. 423. 29 Harft V. McDonald, 1 City Ct. Rep. (N. Y. City) 181; People V. Pratt, 22 Ilun (X. Y.), 300. ^° In re Sarah Way, 11 Mich. 299 ; Pinkerton v. Verberg, 78 Mich. 573. CoDfra : Shafer v. Mumma, 17 Md. 331. 81 State r. Schlottman, 52 Mo. 1G4. *2 People V. Johnson, 86 Mich. 175. But see Mundini v. State, 37 Tex. Cr. 5 ; Hardy v. Murphy, 1 Esp. (Eng. N. P.) 294. 76 THE LAW OF ARREST when the officer heard it from another street, and did not see the offender, the offence was not com- mitted in his presence, and an arrest without a warrant would not be justifiable, because the officer had no direct knowledge that it was he who had committed the offence. ^^ Driving a carriage through the streets of a populous city in such a manner as to endanger the safety of the inhabitants, was at common law an indictable offence, and is a breach of the peace. ^* § 127. Swearing. — Drunkenness. — Profane swear- ing is a breach of the peace,^^ and so is public and disorderly drunkenness.^^ § 128. Use of Force, by Private Person. — A pri- vate person attempting to make an arrest in case of a felony may, in those cases where a private person can lawfully arrest, use all force necessary to ac- complish the arrest, even to the taking of life. So also may he kill to prevent the commission of a felony, when it cannot be otherwise prevented. But a private person has no right to arrest one ^3 People V. Johnson, 86 Mich. 175. But see People v. Bartz, 53 Mich. 493. 34 U. S. V. Hart, Pet. C. C. (U. S.) 390. 3* Holcomb V. Cornish, 8 Conn. 375 ; Com. v. Linn, 158 Pa. St. 22; State v. Chrisp, 85 N. C. 528. 36 State V. Lafferty, 5 Harr. (Del.) 491 ; Bryan v. Bates, 15 111. 87; State v. Freeman, 86 N. C. 683. But see Com. V. O'Connor, 7 Allen (Mass.), 583, holding it no crime at common law. ARREST WITHOUT A WARRANT 7( for whom he knows that a warrant has been issued for an assault with intent to commit murder, un- less at the time he is assisting the officer who has the warrant."" § 129. Arrest by Officer -without a Warrant. — • An officer may arrest without a warrant, whenever a private person may do so; and his authority extends beyond that of a private person in that he may arrest without a warrant one whom he has reasonable ground ^^ to suspect has committed a felony, whether he acts upon his own knowledge, or by facts communicated by others ;2^ and if rea- sonable grounds exist for the suspicion, he is pro- tected, although no crime of any sort has been committed. '^'^ *^ Kirbie v. State, 5 Tex. App. 60. 88 Davis ('. U. S., 16 App. Cas. (D. C.) 442; Kirk v. Garrett, 84 Md. 383 ; Williams v. State, 44 Ala. 41 ; Chan- dler r. Rutherford, 101 Fed. Rep. (U. S.) 774; Ex parte Morrill, 13 Sawy. (U. S.) 322; Tooley's Case, 2 Ld. Ray- mond (Eng. K. B.) 1296; Filer v. Smith, 96 Mich. 347; People V. Burt, 51 Mich. 199 ; Fulton v. Staats, 41 N. Y. 498; Hedges v Chapman, 2 Ring. (Eng. C. P.) 523; Hamilton v. Calder, 23 X. Bruns. 373. 89 Hollcy V. .Mix, 3 Wend. (N. Y.) 3.^0; Filer v. Smith, 96 Mich. 347; Chandler c. Rutherford, 101 Fed. Rep. (U.S.) 774 ; Williams v. State, 44 Ala. 41. «o Donovan v. Jones, 36 X. H. 240 ; Com. v. Cheney, 141 Mass. 102; Holley v. Mix, 3 Wend. (N. Y.) 351 ; State v. Symes, 20 Wash. 484; Muscoe v. Com., 86 Va. 443; State V. Taylor, 70 Vt. 1; Wade v. Chaffee, 8 R. I. 224; Neal v. Joyner, 89 N. C. 287; State v. Grant, 76 Mo. 236; Kirk 78 THE LAW OF ARREST § 130. Suspicion must be well Founded. — But an officer has no right to arrest on suspicion that is not well founded, as in case of a mere suspicion not supported by facts, circumstances, or credible information.^^ Thus the information given by an accomplice is not sufficient to justify an arrest. ''^ And neither an officer nor a private person in mak- ing an arrest upon suspicion v/ithout a warrant has a right to kill the supposed felon, either to effect the arrest or prevent an escape, except in self- defence.*'^ § 131. Arrest for Violation of a City Ordinance. — An officer, may also arrest, without a warrant, one who in his presence commits a breach of the peace ; ** and by authority of statute, city charter, or V. Garrett, 84 Md. 383 ; Wright v. Com., 85 Ky. 123 ; Bright y. Patton, 5 Mackey (D. C), 534 ; People v. Pool, 27 Cal. 572; Lewis V. State, 3 Head (Tenn.), 127 ; State v. West, 3 Ohio St. 509; Burns v. Erben, 40 N. Y. 463; Peoples. Hochstira, 36 Misc. Rep. (N. Y.) 562; McCarthy v. De Armitt, 99 Pa. St. 63 ; Diers v. Mallow, 46 Neb. 121 ; Doering v. State, 49 Ind. 56; Scott v. Eldridge, 154 Mass. 25; Williams v. State, 44 Ala. 41 ; Carr v. State, 43 Ark. 99 ; Filer v. Smith, 96 Mich. 347 ; Hadley v. Perks, L. R. 1 Q. B. 444. But see Marsh v. Smith, 49 111. 396 ; Warner v. Grace, 14 Minn. 487 ; Cryer v. State, 71 Miss. 467. « People !'. Burt, 51 Mich. 199; Williams v. State, 44 Ala. 41. 42 Wills V. Jordan, 20 R. T. 630. 43 Brooks V. Com., 61 Pa. St. 352; Conraddy i'. People, 5 Park. Cr. (N. Y.), 234. Contra : Shanley v. Wells, 71 111. 78. " Com. V. Tobin, 108 Mass. 426; Tracy v. Williams, 4 Conn. 107 ; Douglass v. Barber, 18 R. 1. 459 ; In re Powers, ARREST WITHOUT A WARRANT 79 ordinance,'*^ he may arrest without a warrant, one who, within his jurisdiction, commits a misde- meanor other than a breach of the peace, as, for example, one who is violating a city ordinance, without breaking the peace,'*'' although by the com- mon law he would have no authority to do so. ^^ There is a tendency on part of the courts to look with disfavor upon legislative enactments that au- thorize arrests without warrants for misdemeanors not amounting to breaches of the peace, '*^ as inter- fering with the constitutional liberties of the subject.'*^ § 132. Special Authority may justify Officer in arresting for Misdemeanor not committed in his Pres- ence. — When specially authorized, — as by the city charter of Chicago, — an officer may arrest either with or without warrant, for a breach of the peace or threat to break the peace, even though the breach 25 Vt. 2G1; State v. Russell, 1 Iloust. Cr. (Del.) 122; Fleet- wood r. Coin., 80 Ky. 2; Boutte v. Emnier, 43 La. 980; State V. Guy, 40 La. 1441 ; Hayes v. aAIitchell, 80 Ala. 183; Yeiiemau v. Jones, 118 Ind. 41 ; Beville v. State, 16 Tex. App. 70. ^5 ^lain V. McCarty, 15 111. 441; Roderick v. Wliitsoii, 51 Hun (X. Y.), 620; White v. Kent, 11 Ohio St. 550. *^ Union Depot, etc. Co. v. Smith, 16 Col. 301. *'' Tillman i'. Beard, 121 Mich. 475; Judson v. Reardon, 16 Minn. 431. " People V. Haug, 37 N. W. Rep. (Mich.) 21. *8 Jamison v. Gaernett, 10 Husli (Ky.), 221. Contra: Butolph V. Blust, 41 How. Tr. (N. Y.) 481. 80 THE LAW OF ARREST or threat was not committed in the presence of the arresting officer. "^'^ But a mere threat to break the peace will not justify an arrest without a warrant, unless the threat is accompanied by an open act in the attempted execution thereof. °^ § 133. Presence is presumed. — When an officer makes an arrest for a breach of the peace, there is a prima facie presumption that he had a warrant, or that the offence was committed in his presence. ^^ § 134. What is meant by "Presence." — By pres- ence of the officer is meant that he must actually see the offence committed ; being near enough to see is not sufficient, ^^ unless he hears it and imme- diately proceeds to the scene. ^* And if within his vision, it is immaterial that it was at a distance. ^^ § 135. Arrest Outside of Officer's Jurisdiction. — An officer has no authority to make an arrest out- side of his jurisdiction, even with a warrant, except in those cases in which a private person may act without a warrant. Then an officer may make the arrest, not by virtue of his office, for that is limited 60 Main v. McCarty, 15 Til. 441. 61 Quiiin V. Heisel, 40 INIich. 576. 6- Davis V. Pac. Telephone, etc. Co., 127 Cal. 312. 63 Russell V. State, 37 Tex. Cr. 314. "^ Ramsey v. State, 92 Ga. 53 ; State v. IMcAfee, 107 N. C. 812 ; Dilger v. Com., 88 Ky. 550 ; State v. Williams, 36 S. C. 493; Brooks v. State, 114 Ga. 6; Hawkins v. Lutton, 95 Wis. 492. 65 People V. Bartz, 53 Mich. 493. ARREST WITHOUT A WARRANT 81 by his jurisdiction, but by that right which the law places upon him as a citizen owing a duty to the State. 56 § 136. Effect of Submission to Illegal Arrest. — A person arrested by an officer outside of his juris- diction who fails to object at the time of the arrest, and voluntarily accompanies the officer, thereby waives the illegality of the arrest, and cannot sub- sequently object to it as for that reason illegal. 5" § 137. Arrest for Fraud. — At the request of a keeper of a restaurant, a police officer has no right to arrest without a warrant, one who, in taking a meal at a restaurant, fraudulently substitutes the check given him for one of less amount, which latter he pays,^^ because it was not a criminal act, nor did it tend immediately to create a breach of the peace. § 1 38. Entering Unfastened Door to arrest for Breach of the Peace. — A constable, or other peace officer, has a right, by virtue of his office, without a warrant, to enter through an unfastened door, a house in which there is a noise amounting to a dis- turbance of the peace, and arrest any one disturbing the peace there in his presence. ^^ 66 2 Hale's P. C. 115; Ressler v. Peats, 80 111. 275. " In re Popejoy, 26 Col. 32. 63 Boylestori r. Kerr, 2 Daly (X. Y.), 220. 69 Cora. V. Tobin, lOS Mass. 426; Ford r. Breen, 173 Mass. 52. 6 82 THE LAW OF ARREST § 139. Entering Fastened Door to arrest for Breach of the Peace. — After announcing his au- thority, an officer may, upon demanding and being refused admittance, break open a fastened door even at night, for the purpose of suppressing or prevent- ing a breach of the peace and making an arrest therefor. ^*^ But a private person may not,*^^ except to prevent a felony. ^^ § 140. Entering to arrest for Peaceable Drunk- enness. — When the statute authorizes an arrest for " drunkenness by the voluntary use of intoxicating liquor," the officer may take the guilty party from her own room in her own dwelling-house, where she is making no disturbance, and is not exposed to public view, but is lying in a drunken stupor; be- cause the place where the offence is committed is not an element to be considered in determining whether the accused person is guilty under the law.^^ And the legality or illegality of the arrest does not in any way affect the offence with which she is charged,^* although if entrance to her house for the purpose of making the arrest was obtained ^0 McLennon v. Richardson, 15 Gray (Mass.), 74; State V. Lafferty, 5 Harr. (Del.) 491 ; State v. Stouderiiian, 6 La. Ann. 286; McCuUough v. Com., 67 Pa. St. 30.; Rex v. Smith, 6 C. & P. (Eng. N. P.) 136. 61 Rockwell V. Murray, 6 Up. Can. Q. B. 412. «- Handcock v. Baker, 2 B. & P. (Eng. C. P.) 260. «3 Com. r. Conlin, 184 Mass. 195. 6^ Ibid. ARKEST WITHOUT A WARRANT 83 illegally, she would have an action against the ar- resting party for the trespass. § 141. Arrest without Warrant for Breach of the Peace must be Immediate. — Though at common law an officer might without warrant arrest for a breach of the peace committed in his view, the ar- rest must have been made at the time of, or within a reasonable time after, the commission of the offence, ^^ — that is, the officer must immediately set about the arrest, and follow up the effort until the arrest is made. Tliere must he a continued pursuit and no cessation of acts tending toward the arrest from the time of the commission of the offence until the apprehension of the offender.^ Any delay for purposes foreign to the arrest will make the officer a trespasser. Where the officer saw the defendant committing a misdemeanor in the street, and went for another officer, returning in half an hour, when he arrested the defendant, he was held to be justified.''" But a delay of two hours has been held unjustifiable.^^ § 142. Stale Offence Less than Felony requires a "Warrant. — In all cases not felonies, or likely to result in one, where the offence is not committed «5 Wahl V. Walton, 30 Minn. 506. es Ibid. " Butofph V. Blust, 5 Lans. (X. Y.) 84. «8 Reg. r. Walker, G Cox C. C. (Ktig.) 371 ; see also Joyce V. Parkliurst, 150 ]Mass. 243; Com. v. lluggles, 6 Allen (Mass.), 588. 84 THE LAW OP ARREST in the officer's view, or the act done or threat made is not fresh, a constable or policeman has no au- thority to make an arrest without a warrant. ^"^ So where an officer arrests a person, under a city ordi- nance, as a vagrant, not having a visible means of support, the offence, if there was one, being a mis- demeanor not committed in his presence, he is liable in trespass."*^ § 143. Arrest of Person Rightfully standing near Sidewalk. — Except on charge of felony an officer has no right to arrest without a warrant, one whom he finds peaceably standing in front of his place of residence, between the sidewalk and building, who is not creating a disturbance."^ § 144. Pursuit of Felon. — In case of a dangerous wounding, whereby a felony is -likely to ensue, an officer may, upon probable suspicion, without a war- rant, arrest the party causing the wound, and for that purpose is authorized to break doors, or even kill the felon, if he cannot otherwise be taken. "^ § 145. Duty of Private Person to arrest a Felon. — Any private person, and with much stronger rea- son any officer, that is present when any felony is committed is bound by the law to arrest the felon, on pain of fine and imprisonment if he escapes 69 Shanley v. Wells, 71 111. 78. ""> Ibid. " Com. V. Ridgeway, 2 Pa. Dist. 59 . "!' 2 Hale's P. C. 88 ; Shanley v. Wells, supra cit. ; 4 Bl. Com. 292. ARREST "WITHOUT A WARRANT 8o through the negligence of the standers-by. '^ And they may justify breaking open the doors upon following such felon ; and if they kill him, pro- vided he cannot otherwise be taken, it is justifi- able;''' though if they are killed in endeavoring to make such arrest, it is murder. '^ § 146. Arrest under a General Authority. — A police officer has the right to arrest, without a warrant, under the general power conferred upon the police force to prevent crime and arrest offenders, a person found violating the sanitary ordinances of a city."^ Under a statute which authorizes marshals to " arrest and detain any person found violating any law," a marshal of a municipal corporation is au- thorized to arrest without warrant a person found carrying concealed weapons contrary to law, although he has no previous personal knowledge of the fact, if he acts bona fide, and upon such information as induces an honest belief that the person arrested is in the act of violating the law. "^ '8 2 Hawkin's P. C. 74; 4 Bl. Com. 293; Long v. State, 12 Ga. 293. T* 4 Bl. Com. 292 ; Foster (Eng.), 271 ; U. S. v. Clark, 31 Fed. Rep. (U. S.) 710; Thomas v. Kinkead, 55 Ark. 502; Conraddy v. People, 5 Park. Cr. (N. Y.) 234 ; Reneau r. State, 2 Lea (Tenn.), 720; Brown v. "Weaver, 70 :\Iiss. 7; Head v. Martin, 85 Ky. 480 ; State r. Sigman, lOG N. C. 728. " 2 Hale's P. C. 77. ■fs Mitchell i-. Lemon, 34 Md. 17G. ■7 Ballard v. State, 43 Ohio St. 340. 86 THE LAW OF ARREST § 147. Arrest of Deserters from United States Army. — The rule of the common law, that an offi- cer or private person may arrest a felon without a warrant, has never been extended to the case of an offender against the military law, punishable ex- clusively by court-martial. Therefore an officer or a private person, without order or direction of a military officer, has no right to arrest or detain a deserter from the army of the United States.'^ Nor can a military officer lawfully break into a dwell- ing-house for the purpose of capturing a deserter.'^ § 148. Arrest by a Bail. — A bail may arrest his principal at any time and anywhere, even in another State, using no violence unless there is re- sistance. And he may delegate the power to an- other in writing to do it for him. But the party to whom the power is delegated cannot delegate the power to another, although he may call in others to assist him in making the arrest. ^*^ A bail, or one authorized by him, after due notice, demand of admittance, and refusal, may forcibly enter a dwelling-house to effect the arrest of the principal. ^^ 78 Kurtz V. Moffitt, 115 U. S. 487. " Clay V. U. S., Dev. Ct. CI. (U. S.) 25. 80 State V. Mahon, 3 Harr. (Del.) 568; Taylor v. Taintor, 16 Wall. (U. S.) 366; In re Von Der Ahe, 85 Fed. Rep. (U. S.) 959. 81 Read v. Case, 4 Conn. 166. ARREST WITHOUT A WARRANT 87 § 149. Arrest to prevent Crime. — With respect to interference and arrests in order to prevent the commission of a crime, any person may lay hold of a lunatic about to commit any mischief which, if committed by a sane person, would constitute a criminal offence,^ or any other person whom he shall see on the point of committing a treason or felony, or doing any act which will manifestly en- danger the life or person of another, and may detain him until it maybe reasonably presumed that he has changed his purpose. Thus, any one may justify breaking and entering a party's house and imprison- ing him, to prevent him from murdering his wife, who cries out for assistance. ^^ Where one interferes to prevent others from fight- ing, he should first notify them of his intention to prevent a breach of the peace. ^ § 150. Hue and Cry. — It was formerly the law in England, by Statute 13 Edward I, Chapter 3, that every hundred (a division of a county) ^^ was 82 Lott V. Sweet, 33 Mich. 308; Paetz v. Dain, Wils. (rnd.) 148. 83 Handcock r. Baker, 2 B. & P. (Eng. C. P.) 260; Selw. 3d ed. 830; Bacon's Abr. Trespass, 1) 3. s4 1 East P. C. 304; Bacon's Abr. Trespass, D 3; 2 Pvolles Abr. 559. 85 Regan v. N. Y. etc. R R. Co., CO Conn. 124. In Del- aware the sub-divisions of a county are called "hundreds." They correspond to " towns," in New England ; " townships," in New Jersey, and "parishes" in Louisiana. 88 THE LAW OF ARREST bound to answer for all robberies therein committed, unless they took the felon. ^^ For that reason it was common to make fresh pursuit, with hue and cry, by both horsemen and footmen,*^' of one who had com- mitted a felony. These acts are now repealed, and an arrest by hue and cry is seldom known. Of the same effect, however, in later usage, is a written proclamation issued on the escape of a felon from prison^ requiring all persons to aid in retaking him. 8« Grosvenor v. Inhab. etc. of St. Augustine, 12 East, 244. *^ Made imperative by Stat. 27 Eliz. c. 13. BREAKING DOORS TO MAKE AN ARREST 89 CHAPTER YII BREAKING DOORS TO MAKE AX ARREST § 151. Man's Habitation is Sacred. — The law regards a man's house as his castle, his place of refuge, his sanctuary, and is predisposed to protect it against forcible invasion and disturbance. This protection is afforded, not only because of man's natural right of undisturbed habitation, which nature has ever impelled him to maintain, even when in a savage state, but also because of the terror which usually results from an invasion of this right, and the possibility of such invasion causing a breach of the peace through being met with resistance. § 152. Breaking into Dw^elling-house to serve Process. — As a result of this tender regard of the law for the habitation of man, it is well settled that an outer door or window of a dwelling-house cannot be broken to execute civil process. In the execution of criminal process, however, the law, with due re- gard for the well-settled principle " individual rights yield to public necessity, " allows the habitation of man to be entered forcibly under certain conditions. ^ 1 Com. V. Reynolds, 120 Mass. 100; Shanley i-. Wells, 71 m. 78; Cahill v. People, 106 111. 621; State v. Smith, 1 N. II. 346. 90 THE LAW OF ARREST § 153. Notification, Demand, and Refusal are Necessary. — To serve a criminal process a dwell- ing-house may be forcibly entered by an officer after a proper notification of the purpose of the entry, and a demand upon the inmates to open the house, and a refusal by them to do so.^ And even if it appeared that the defendant was not in the house at the time such arrest was attempted to be made, yet the breaking and entering the house for the purpose of arresting him would be justified, if the officer acted in good faith, under reasonable belief that the party was there, ^ and after proper notice broke and entered the house, doing no unnecessary violence or damage ; "* and such is the law even though the offence for which the warrant was issued is but a misdemeanor.^ § 154. Name of Party sought need not be given unless requested. — It is not necessary to notify 2 Barnard v. Bartlett, 10 Cash. (:Mass.) 501; McLennon V. Richardson, 15 Gray (Mass.), 74; State v. Oliver, 2 Houst. (Del.) 585; Semayne's Case, 5 Coke (Eng. K. B.), 91b; Lannock v. Brown, 2 B. & Aid. (Eng. K. B.) 592; Read v. Case, 4 Conn. 166. 3 Com. V. Irwin, 1 Allen (Mass.), 587. ^ Com. V. Reynolds, 120 Mass. 190; Com. v. Irwin, supra cit. 5 Com. V. Reynolds, supra cit. ; State v. Shaw, 1 Root (Conn.), 134; State v. Mooring, 115 N. C. 709; State v. Oliver, 2 Houst. (Del.) 585; U. S. v. Faw, 1 Cranch (U. S. C. C), 487. Contra: Com. v. County Prison, 5 Pa. Dist. 635. BREAKING DOORS TO MAKE AN ARREST 91 the occupier of the house who the person sought to be arrested is, if no inquiry is made in relation thereto, even if the person sought to be arrested is not actually in the house, it being sufficient for the occupier to know that an officer, provided with a warrant against an alleged offender, who believes that he is within his house, is seeking to arrest him there. ^ § 155. Private Person's Right to break Doors. — Any private person who is present when any felony is committed, is bound to arrest the felon, and may break open doors when following him in fresh pur- suit upon reliable information." But a private per- son is not justified in breaking doors to arrest a person upon a groundless suspicion, no matter how reasonable or well founded his suspicion may be. ^ § lofi. To -whoin the Protection of the Dwelling- house is extended. — A dwelling-house cannot be forced by an officer in the execution of civil process against the occupier or any of his family who have their domicil or ordinary residence there; and this immunity from arrest extends not only to the occu- pant, his wife and children, but to domestic ser- vants, and permanent boarders and lodgers as well, but not to strangers or visitors.^ So that if a « Com. V. Reynolds, 120 Mass. 190. ' Brooks V. Cora., 61 Pa. St. 3.32. 8 Ibid. 9 Oystead v. Shed, 13 Mass. 520. 92 THE LAW OP ARREST stranger whose ordinary residence is elsewhere, upon a pursuit, take refuge in the house of another, the house is not his castle ; and the officer may break open the doors or windows in order to exe- cute his process. If the occupant should refuse admission to the officer after his purpose and authority were made known, the law would consider him as conspiring with the party pursued to screen him from arrest, and would not allow him to make his house a place of refuge. '^^ § 157. Breaking into Dwelling-house to prevent Escape. — It would be different, however, if the oc- cupier of a house was arrested outside of his house, and then fled to his house for protection. In such case the officer would have a clear right to pursue and break into the house, for he would not then be effecting an arrest, but would be preventing an escape. But the breaking will not be justified unless the arrest outside the house was absolutely complete. ^^ § 158. Arrest within House by OfBcer Outside. — Where one is arrested by the officer touching him for the purpose of arresting him, through a broken window,^''' the arrest having been consum- mated by the touching of the defendant, the officer 10 Oystead v. Shed, 13 Mass. 520. 11 See Chapter IV. as to acts completing arrest. 12 Sandow t;. Jervis, E. B. & E. (Eng. Q. B.) 935, 942. BREAKING DOORS TO MAKE AN ARREST 93 may break an outer door, not to execute the civil process, for that was executed by the act of arrest, but to remove his prisoner. § 159, Unannounced Breaking to make Original Arrest not justified. — It was decided as early as 1605,^^ that the householder must be requested to open the door before the officer can break his way in ; and such is still the law.^^ In fact it is neces- sary (1) that the officer give notice of his purpose and his authority, (2) demand admission, aud (3) be refused admission, before he can break a door or window of a dwelling-house to make an arrest on either a civil or a criminal process. § 160. Breaking may be unannounced if Arrest is following Escape. — But if a person who has been arrested escapes, and takes refuge in the house of an- other, the officer may break into such other person's house to retake him ; and if the pursuit is fresh, so that the occupant is consequently aware of the ob- ject of the officer, no notice of purpose, demand of admission, and refusal to admit is necessary to justify the officer in breaking the outer door. ^^ § 161. OfiBcer may re-enter Forcibly if Neces- sary. — If an officer has once been lawfully in the 12 Semayne v. Gresham, 5 Coke (Eng. K. B.), 91. " Barnard v. Bartlett, 10 Cush. (Mass.) 501 ; Com. v. Reynolds, 120 Mass. 190. 15 Alien V. Martin, 10 Wend. (X. Y.) oOO. 94 THE LAW OF ARREST house in making an arrest on civil process, he may re-enter, using as much force as may be necessary. ^^ So where an officer obtained a peaceable entrance through an outer door, and before he could make an arrest was forcibly ejected from the house, and the door fastened against him, he was justified in forc- ing open the door, without a demand of re-admit- tance, and making the arrest. -^^ § 162. Inner Doors may be broken on any Process. — While the law prohibits the breaking of the outer door of a dwelling-house to execute civil process, it does not extend the protection to the inner doors, ^^ except where an inner door is the entrance to a dis- tinct apartment, ^^ or to the outer doors or windows of other buildings not the dwelling of the debtor. ^o § 163. When Usual Inner Door is a Legal Outer Door. — Where a house is let to lodgers, the owner retaining one room thereof for himself, an officer may break open an inner door which leads to the owner's room, for the purpose of arresting him.^^ But if the whole house be let in lodgings, as each lodging is then considered a dwelling-house, in which burglary may be stated to have been com- i« Genner v. Sparks, 6 Mod. (Eng. K. B. &c.) 173. " Aga Kurhboolie Mahomed v. Reg,, 3 Moore, P. C. (Eng.) 164. 18 Hubbard v. Mace, 17 Johns. (N. Y.) 127. 19 Stedman v. Crane, 11 Mete. (Mass.) 295. 20 Haggerty v. Wilber, 16 Jolins. (N. Y.) 287. 21 Williams v. Spencer, 5 Johns. (N. Y.) 352. BREAKING DOORS TO MAKE AN ARREST 95 mitted, it has been supposed that the door of each apartment would be considered an outer door which could not be legally broken open to execute a civil arrest. "^ What is a Dwelling-House ? § 164. Definition. — A dwelling-house is a build- ing inhabited by man. A house usually occupied by the person there residing and his family. ^^ § 165. Use determines Character. — The use to which a house is put, at the time of the offence, de- termines its character.-'* A barn may be converted into a dwelling-house, or a dwelling-house into a barn, by a change of its uses.^ A cabin in the woods, built as a permanent structure for wood- choppers to occupy, is a dwelling-house if in actual use as a place of abode. ^^ A house merely designed as a dwelling-house, but not occupied for that purpose, is not a dwelling- house. "^"^ § 166. Use of Portion as Dwelling. — It is not necessary that the entire ])uilding be used as a dwelling-place, to make the entire building a dwell- 22 Oystead v. Shed, 13 Mass. 519. 28 Bouvier's Law Diet. (Dwelling-house). 2* State V. Williams, 40 W. Va. 2GS ; Davis v. State, 38 Ohio St. 506. 25 Davis V. State, supra cit. 26 State V. Weber, 15G Mo. 257. 27 State i\ Warren, 33 Me. 30. 96 THE LAW OF ARREST ing-liouse. If part of a building is used as a place of abode, every part of the building to which there is an internal communication from the part used as a dwelling is part of the dwelling-house. Thus the loft of a coach-house and stable which is used as the dwelling of the coachman is his dwelling-house, although the principal use of the building is that of a coach-house and stable. ^^ § 167. May be Several Dwellings in same Build- ing. — Where a building is leased to different per- sons in distinct apartments, each apartment is the dwelling-house of the lessee. '-^^ § 168. Public Building may be a D-vsrelling. — A suite of rooms in a college is a dwelling-house.^*' So is a public jail,^^ or an infirmary. ^^ And a building thirty-six feet distant from the main dwelling, in which the servants sleep, is a part of the dwelling-house.^^ § 169. Combined Residence and Place of Busi- ness. — Where the front of a building is occupied by the owner as a shoe-shop, and is connected with the rear and overhead portion, which is used as a dwelling, the building is a dwelling-house.^* 28 Rex V. Turner, 1 Leach (Eng. C. C), 305. 29 Stedman v. Crane, 11 IMetc. (Mass.) 295. so Barnes v. Peters, L. R. 4 C. P. 539. 81 People V. Cowteral, IS Johns. (N. Y.) 115. 82 Davis V. State, 38 Ohio St. 506. 83 Pond V. People, 8 Mich. 150. 84 People V. Dupree, 98 Mich. 26. BREAKING DOORS TO MAKE AN ARREST 97 And where a woman occupied as her dwelling a building containing a single room, in which she also carried on her trade as a milliner, and kept therein a stock of millinery goods, it was held that the use of the room as a place of business did not change its character as a dwelling, and that break- ing the door in the execution of civil process was illegal. '^^ § 170. Use of House must be Primarily and Habit- ually for Sleeping Purposes. — The house must be used as the usual and habitual place for sleeping purposes, by the owner or some member of his family, or his servants, in order to make it a dwelling-house. A storehouse of the owner, who resides nearby, and in which he occasionally slept, is not a dwell- ing-house.^^ But if a part of a storehouse, commu- nicating with the part used for store purposes, is slept in lialitually by the owner or some member of his family, although he sleeps there for the purpose of protecting the premises, it is his dwelling-house. If, however, the person who sleeps there is not the owner, or one of his family, or a serv'ant, or clerk, but is employed to sleep there solely for the pur- pose of protecting the premises, the store is not a dwelling-house.^'^ 85 Welsh r. Wilson, 34 Minn. 92. 86 State V. Jenkins, o Jones (X. C), 430. 8T State V. Potts, 75 N. C. 129; State v. Williams, 90 N. C. 724. 7 98 THE LAW OF ARREST § 171. Effect of Absence. — A liouse which the owner visits once or twice a year, and at each visit sleeps there for about a week, at other times the house being unoccupied, is not a dwelling-house except when so occupied. ^^ But a temporary ab- sence with the intention of returning does not make a building lose its character as a dwelling-house.^^ What is a Breaking? § 172. Same in Serving Process as in Burglary. — What would be a " breaking " of the outer door in burglary is equally a breaking by the sheriff when he enters to make a levy,*^ or when he, or any other officer, comes to serve any legal process. § 173. Does not Necessarily involve Injury of Material. — " Breaking " does not mean that any part of the material used in the construction of a door, or window, or any other part of the house must be actually broken or even injured. If anything mate- rial which constitutes a part of the dwelling-house, and is relied on as a security against intrusion, be broken, removed, or put aside, there is a breaking.*^ § 174. Taking Advantage of Negligence of Oc- cupant. — But if the occupant of a house is negli- 38 Scott V. State, 62 Miss. 781. 39 Harrison v. State, 74 Ga. 801 ; Schwabacher v. People, 165 111. 618; Ex parte Vincent, 26 Ala. 145. 40 Curtis V. Hubbard, 1 Hill (N. Y.). 3.38. *i State V. Boon, 35 N. C. 244 ; Walker v. State, 52 Ala. 376. " BREAKING DOORS TO MAKE AN ARREST 99 gent, and does not avail himself of the usual methods of protecting his dwelling, then one who takes advantage of his negligence is not guilty of breaking. *2 § 175. Breaking Doors. — Opening a door by lifting the latch, '^^ or by turning the knob of a closed door is, in law, a complete breaking.** Or opening a door by unhooking a chain which is hooked over a nail,*^ or to push open a door which is entirely closed, but which is neither locked nor latched, is a sufficient breaking.*^ So where a door was made in two sections, upper and lower, the upper section being open, it is a breaking to un- hook the lower door; and the fact that the upper door was open, so that the party might have entered without unfastening the lower door, makes no legal difference in the entry.*" And where a screen door, entirely closed, was pushed open, although the per- manent door was not closed, it was held a breaking.*^ 42 State V. Henry, 9 Ired. (N. C.) 463 ; Rex r. Spriggs, 1 Mood. & Rob. (Eng. N. P.) 357. ^8 State r. Groning, 33 Kan. 18; State r. O'Brien, 81 Iowa, 93; Hedrick v. State, 40 Tex. Cr. 532 ; State r. Boon, 35 X. C. 244; Tickner v. People, 6 Hun (N. Y.), 657; State V. Hecox, 83 Mo. 531; Bass v. State, 69 Tenn. 444 ; McCourt V. People, (34 N. Y. 583. " Walker v. State, 52 Ala. 376. « State V. Hecox, 83 Mo. 531. *® State V. Reid, 20 Iowa, 413 ; State v. Groning, 33 Kan. 18. *'' Ferguson v. State, 52 Neb. 432. *^ State V. Conners, 95 Iowa, 485. 100 THE LAW OP ARREST The removing of a post leaning against a door to keep it closed also constitutes a breaking.*^ And the outer door being shut, is equally a protection whether the owner or possessor be within at the time or not. ^"^ Raising a trap door which is held in place by its own weight is also a breaking. ^^ § 176. Breaking Windows, — And it is a break- ing within the meaning of the law even to push open a swinging transom window, which is not fastened, but is kept in place merely by its own weight, ^^ or raising an unfastened window, ^'^ or re- moving a window screen that is fastened with nails, ^■^ or any other window covering, even if held in place by its weight alone. §177. Entering other Openings. — Entering by means of a chimney ^^ is a breaking, because this is an opening which necessarily exists in order that the building may be occupied as a dwelling-house. 49 State V. Powell, 61 Kan. 81 ; State v. Woods, 137 Mo. 6; Matthews v. State, 38 S. W. (Tex.) 172. 50 Curtis V. Hubbard, 1 Hill (N. Y.), 338. 6^ Harrison v. State, 20 Tex. App. 387; Carter v. State, 68 Ala. 96. 5- Dennis v. People, 27 Mich. 151 ; Timmons v. State, 34 Ohio St. 426. 63 State V. Boon, 35 N. C. 244 ; Frank v. State, 39 Miss. 705;. Rex v. Hyaras, 7 C. & P. (Eng. N. P.) 441. " Com. V. Stephenson, 8 Pick. (Mass.) 351 ; Sims i'. State, 136 Ind. 358. 65 Rex V. Brice, Russ. & Ry. (Eng. C. C) 450; Walker v. State, 52 Ala. 376. BREAKING DOORS TO MAKE AN ARREST 101 But it seems that it is not a breaking to enter through a hole in the roof of a house, left there for the purpose of giving light, ^ because the owner might have protected his premises by covering the opening with a fastened window ; or to enter by a door or window which is already partly opened, although the opening may be very slight.^' In all such cases the negligence of the occupier, in leaving his premises insufficiently protected, re- duces an illegal entrance to a mere trespass, without attaching to it a breaking. § 178. Enlarging Opening by Actual Breaking. — But where an opening is enlarged by an actual breaking of material, or even where a broken win- dow-pane, still entirely in place, is removed so as to effect an entrance, or the breaking or pushing in of a part of a pane of glass wdiich had been pre- viously cut, but the whole of which still remained in its place, ^^ is a sufficient breaking. So where a hole is dug under a building made of logs, which has no floor except the ground, there is a breaking. ^^ § 179. Mere Protective Doors are not "Outer" Doors. — "Where there are two doors to the cellar- way of a dwelling-house, one opening outwardly, 66 Rex V. Spriggs, 1 Mood. & Rob. (Eng. X. V.) 357. ^"^ Com. V. Stnipne}-, 105 Mass. 58S. 68 Reg. V. Bird, 9 C. & P. (Eng. N. P.) 44. 69 Pressley v. State, 111 Ala. 34. 102 THE LAW OF ARREST and the other opening into the cellar, the latter is the outer door of the house, and if closed and latched, the unlatching and entering constitutes a hreaking.^*' Upon like reasoning the storm-door is not the outer door of a house. ^^ § 180. Removal of Iron Grating over Sidewalk. — One decision apparently in conflict with the last cited case is, that the removal of an iron grating over the sidewalk, for the purpose of effecting an entrance through a cellar window into the building, is a breaking. ^2 ^ut in this case it seems that the cellar window was left open by the owner, who apparently relied upon the grating to protect the building against intruders, and this allows the cases to be reconciled. § 181. Entrance by Means of Deception. — To gain an entrance by deception, as where the officer announced that he had a note for the party whose arrest was sought, ^^ or that he wanted to see some other person who was in the house, and thereby gained admission, "^^ have been held legal entrances, although such entrances in the law of burglary are held breakings. ^^ And it was held that where the 60 McCourt V. People, G4 N. Y. 583. ci Ibid. 6^ People V. Nolan, 22 Mich. 229. «3 Rex r. Backhouse, Lofft (Eng. K. B.), 61. « Hitchcock V. Holmes, 43 Conn. 528. "5 Johnston v. Com., 85 Pa. St. 54. BREAKING DOORS TO MAKE AN ARREST 103 occupant of a house, decoyed therefrom by the stratagem of the trespasser, left his door unfastened, and fifteen minutes later the trespasser entered the unfastened door, there was no breaking, by reason of the negligence of the remaining members of the family not fastening the door during that interval. ^^ But if the occupant is induced to open the door by threats, or if the officer claims that he is coming to serve a different sort of a process, and by his false statement procures an entrance, there would be a breaking. § 182. Effect of Illegal Breaking on the Arrest. — An arrest of a person in a civil action, by an unlawful breaking, not only subjects the officer to a civil action for the trespass, but the arrest is alto- gether void. ^" In a criminal action, however, the illegality of the arrest of one before the court on a valid criminal charge will not be considered in that 68 case. 66 state I'. Henry, Ired. (N. C.) 463, 6T Kerbey v. Denbey, 1 M. & W. (Eng. Exch.) 336. 68 Com. V. Conliii, isi Mass. 195. 104: THE LAW OF ARREST CHAPTER VIII FORCE IN THE ACT OF ARREST § 183. Authority and Duty are Coincident, — The law never clothes a person with authority to make an arrest without, at the same time, placing upon him the duty of making it. In the discharge of this duty, the arresting party may use all the force that is absolutely necessary to effect the arrest, even under some circumstances to the point of killing ; but the use of unnecessary force can never be justified. The law deprecates the necessity of killing a human being in the act of making an arrest, and will not allow either the party making the arrest, or the party whose arrest is desired, in case of a wanton abuse of right, to shield himself behind a technicality of law. So that, while there are cases holding that the taking of life by the officer, or by the accused, or by a private party in a case wherein he may law- fully act, is justifiable under certain circumstances, these cases may not always be safely relied upon to protect the party who does the killing. This is largely true by reason of the different views held by the people of different parts of the FORCE IN THE ACT OF ARREST 105 country respecting the amount of provocation that will justify a homicide, — the killing of a human being by a human being. And it is always the people — the jury — of the place where the homicide occurs that are to say whether the killing is to be sanctioned or punished, and whether the officer acted on reasonable grounds. ^ Hence, a case de- cided in a community where verbal or written insults and provocations are held, under certain conditions, to justify a killing, is not a safe prece- dent for one to rely on in a community where mere words, no matter how strongly inclined to arouse man's passions, are held never to justify a homi- cide. In fact, with the advancement of legal at- tainments, and general enlightenment of society, the occasions where the taking of human life may be justified by one enforcing legal arrest, or resisting illegal arrest, are becoming fewer. § 184. Blackstone's Rule not Reliable. — Black- stone wrote, about 1769, that a crime miglit be pre- vented by death if the same, if committed, would be punished by death. But this rule does not now hold good, because at that time all felonies were punishable by death, whereas now but few are so punishable; while in some States the death penalty is altogether abolished. § 185. Officer may use all Necessary Force. — It may be said that an officer wliose duty it is to make 1 State V. Bland, 97 N. C. 438. 106 THE LAW OP ARREST an arrest may use all force that is necessary in mak- ing the arrest, even to the point of taking life,^ when there is no other way of making the arrest, and it makes no difference whether the process is civil or criminal.^ § 186. May not use Unnecessary Force. — But it is his duty to use no unnecessary harshness or violence ; ^ and if he use more force than is neces- sary, he himself becomes liable in trespass,^ and in case of taking life may be guilty of manslaughter, or even murder,^ according to the degree of wanton- 2 State V. Dierberger, 96 Mo. 666; Brooks v. Cora., 61 Pa. St. 352; Head v. Martin, 85 Ky. 480; Mesraer v. Com., 26 Gratt. (Va.) 976; State v. Miller, 5 Ohio Dec. 703; Shovlin V. Com., 106 Pa. St. 369; James v. State, 44 Tex. 314; Golden V. State, 1 S. C. 292; State v. Sigmaii, 106 N. C. 728 ; Patterson v. State, 91 Ala. 58 ; Ramsey v. State, 92 Ga. 53; Murdock v. Ripley, 35 INIe. 472; State v. Lafferty, 5 Harr. (Del.) 491; People v. Durfee, 62 Mich. 487; State v. Fuller, 96 Mo. 165; People v. Carlton, 115 N. Y. 618; U. S. V. Fullhart, 47 Fed. Rep. (U. S.) 802. 3 Clements v. State, 50 Ala. 117. 4 Fulton V. Staats, 41 N. Y. 498; North v. People, 139 111. 81; Findlay v. Pruitt, 9 Port. (Ala.) 195; Lander v. Miles, 3 Oreg. 35; Burns v. State, 80 Ga. 544; State v. Pate, 7 Ohio N. P. 543; Reneau v. State, 2 Lea (Tenn.), 720 ; State V. Mahon, 3 Harr. (Del.) 568 ; Skidmore v. State, 43 Tex. 93. 5 Murdock v. Ripley, 35 Me. 472 ; Golden v. State, 1 S. C. 292 ; Patterson v. State, 91 Ala. 58 ; Dilger v. Com., 88 Ky. 550. 6 ^Villiams v. State, 44 Ala. 41 ; State v. Bryant, 65 N. C. 327; Reneau v. State, 2 Lea (Tenn.), 720; State v. Dietz, 59 Kau. 576. FORCE IN THE ACT OF ARREST 107 ness and recklessness of human life manifested in the homicide. If no resistance be offered, or attempt to escape, he has no right, rudely and with violence, to seize and collar his prisoner.'^ § 1 87. May use Force to prevent Escape. — Felony. — Any force which may be used to ettect an arrest may also be used to prevent an escape and re- tain custody of the prisoner, and an officer attempt- ing to arrest a person guilty of a felony, at least of the more atrocious kind, may kill to prevent an escape either before or after the arrest when there is no other way of preventing it.^ It has been wisely held that this doctrine does not apply to all felonies, but only to those of a more atrocious kind, as rape and murder ; there- fore it was held that one was not justified in shoot- ing to prevent the escape of one who had stolen a hog.^ § 188. Misdemeanor. — With much stronger rea- son would the right to kill not exist in preventing an escape in case of a misdemeanor;^'^ such killing ' State V. Mahon, 3 Ilarr. (Del.) 568. 8 1 Hale's P. C. 481; 4 Bl. Cora. 293; Jackson v. State, 66 Miss. 89. 9 State V. Bryant, 6.5 X. C. 327. 10 Tiner v. State, 44 Tex. 128; Williams v. Statf^, 44 Ala. 41; Thomas v. Kinkead, 55 Ark. 502; Head r. Martin, 85 Ky. 480; Kischer v. Meehan, 11 Ohio C C. 403; U. S. i: 108 THE LAW OP ARREST would be murder. ^^ And it has been held that an officer has no right, when endeavoring to execute a warrant on a bastardy charge, to shoot the accused when fleeing, either to effect his arrest or to prevent his escape. ^^ A party guilty of a misdemeanor, fired upon by an officer while avoiding arrest, may repel the attack by shooting the officer, and the killing will not necessarily be unlawful. ^^ § 189. Fleeing from Arrest. — There is a broad distinction between resisting arrest and the avoid- ance of it; between forcible opposition to arrest and merely fleeing from it ; and there is no rule of law that he who flees from attempted arrest in case of misdemeanor thereby forfeits his right to defend his life.^^ Even in case of one charged with murder, so long as the one sought to be arrested was content peace- ably to avoid arrest, the pursuing party had no right to kill him ; but whenever, by his conduct, he puts Clark, 31 Fed. Rep. (U.S.) 710; Brown v. Weaver, 76 Miss. 7; Conraddy v. People, 5 Park. Cr. (N. Y.) 234; Reneau V. State, 2 Lea (Tenn.), 720; Forster's Case, 1 Lewiii (Eng. C. C), 187; Handley v. State, 96 Ala. 48; Com. v. Greer. 20 Pa. Co. Ct. 535 ; Dilger v. Com., 88 Ky. 550; Wright v. State, 44 Tex. 645. Contra: State v. Dierberger, 96 Mo. 666. " Reneau v. State, 2 Lea (Tenn.), 720 ; State v. Dietz, 59 Kan. 576. 12 Head v. INIartin, 85 Ky. 480. " Tiuer v. State, 44 Tex. 128. " Ibid. FORCE IN THE ACT OF ARREST 109 in jeopardy the life of any attempting to arrest him, he may be killed, and the act will be excusable. ^^ § 190. OflBcer is liable for Excessive Force. — In any case, a felon must not be killed in endeavor- ing to effect his capture, if the officer can arrest him without such severity, by obtaining assistance, or otherwise, of w'hich the jury ought to inquire. ^^ The amount of force which an officer may law- fully use in making an arrest is so much as is necessary to accomplish his object; and where he is charged with exceeding that limit, the jury must judge of the necessity and not the officer. ^' If the amount used is more than the occasion requires, he is criminally liable for the excess. ^^ So where a police officer is endeavoring to arrest a drunken cab driver, he has no right to strike him with his club in such a manner as to break his arm, and an in- dictment will lie for the assault and battery. ^^ And where an officer makes an arrest of an offender, whom he finds taking a meal at a public hotel, by 16 state V. Anderson, 1 Hill (S. C), 327. 16 Williams v. State, 44 Ala. 41. " State V. Bland, 97 N. C. 438. " Patterson v. State, 91 Ala. 58; State v. Fuller, 96 Mo. 165; State v. Lafferty, 5 Harr. (Del.) 491 ; Golden v. State, 1 S. C. 292 ; State v. Mahon, 3 Ilarr. (Del.) 568; Mesmer c. Com., 26 Gratt. (Va.) 976; Ramsey v. State, 92 Ga. 5:5; lieaverts r. State, 4 Tex. App. 175; Mockabee r. Com., 78 Ky. 380 ; Murdock v. Ripley, 35 Me. 472; Bowling c. Com., 7 Ky. L. 821 ; Dilger v. Com., 88 Ky. 550. 19 Golden v. State, 1 S. C. 292. 110 THE LAW OF ARREST rudely seizing him and throwing him violently to the floor, then striking him witli the butt of his pistol and knocking him senseless, no evidence having been adduced to show occasion for use of such force, the officer was properly found guilty of assault.^'' § 191. Officer's Right to use Club. — Where an officer whose duty it was on a public occasion to see that a passage was kept for the passing of vehicles, directed a person in front of the crowd to stand back, and on being told by him that he could not for those behind him, struck him immediately on the face, without any other effort to remove him, saying that he would make him stand back, it was held that the officer exceeded his authority and should have confined himself to pressure. ^^ Where an officer finds two persons fighting, and, grasping one by the shoulder, tells him that he is under arrest, if the prisoner still continues to strike at his opponent, the officer may be justified in strik- ing him with his club in order to stop the fight, if he uses no unnecessary force in doing so.^^ But an officer is not justified in striking one with his club who interferes with him in the per- formance of his duty, although he would be justified in placing him under arrest. ^^ Nor has an officer 20 Beaverts v. State, 4 Tex. App. 175. 21 Imason v. Cope, 5 C. & P. (Eiig. N. P.) 193. 22 State V. Pugh, 101 N. C. 737. 23 Levy V. Edwards, 1 C. & P. (Eng. N. P.) 40. FORCE IN THE ACT OF ARREST 111 the right to strike with his club one who merely holds back, and is not otherwise resisting. 2* § 192. Demanding Officer's Number. — Any citi- zen has a right to demand of a police officer his number, and the demanding of the number of an officer is no crime, nor is the temporarily standing in front of him for that purpose. And where a party remonstrates with an officer for making an arrest, or demands his number, he is not guilty of obstructing an officer. ^^ But if the remonstrance be carried to a point where the prisoner is incited to resist, there will be an offence,^^ for which the offi- cer may arrest the inciting party. 2" § 193. OfiBcer's Unlawful Act deprives him of Protection. — If an officer has brought peril upon himself by his own unlawful act, either in making the arrest, or in the treatment of his prisoner while under arrest, he will not be justified in taking the life of his prisoner on the ground of self-defence. ^^ And if there is no attempt to escape, and no forcible resistance, it is an excess of authority and a criminal offence, which may well be called an outrage in an officer, to inflict any blow or other violence upon his prisoner; and the prisoner is 2* Com. V. Weathers, 7 Kulp (Pa.), 1. 25 Com. V. The Sheriff, 3 Brewst. (Pa.) 343. 26 Ibid. 2T White V. Edmunds, 1 Peake (Eng. N. P.), 89. 28 Com. r. Weathers, 7 Kulp (Pa.), 1. 112 THE LAW OF ARREST justified in using any force not excessive in defend- ing himself from the unauthorized assault.^ §193a. Officer detailed as Guard. — Where an officer is detailed to protect a judge or other person, it is his duty to see that no harm comes to the per- son under his charge ; and if the circumstances are such that he may reasonably believe that killing of a person attempting to assault the one under his care is necessary for the safety of his charge, he is justified in taking the life of the assailant. ^"^ § 194. Use of Handcuffs. — Because an officer is responsible for the safe-keeping of his prisoner, and may become liable either civilly or criminally for his escape, the law leaves the question of necessity in the use of handcuff's largely to the discretion of the officer, and holds him liable only for a clear abuse of his authority. ^^ So where an officer handcuffed one charged with a misdemeanor to one convicted of a felony, and walked them thus together through the streets, he was held liable for the abuse of his authority. ^^ 29 State V. Belk, 76 N. C. 10. 80 In re Neagle, 135 U. S. 1. 81 Dehm v. Hinnian, 56 Conn. 320; Wright v. Court, 4 B. & C. (Eng. K. B.) 596; Leigh v. Cole, 6 Cox C. C. 329; Firestone v. Rice, 71 Mich. 377 ; Cochran v. Toher, 1-4 j\Iiiin. 385 ; State v. Stalcup, 24 N. C. 50. But see Giroux v. State, 40 Tex. 97. 3-^ Leigh V. Cole, 6 Cox C. C. (Eng.) 329. FORCE IN THE ACT OF ARREST 113 The right to handcuff must depend on the cir- cumstances of each particular case, considering the nature of the charge, and the conduct and temper of the person in custody."'^ In order to justify an officer in handcuffing a prisoner arrested for a felony, it is not necessary that he should be unruly, or attempt to escape, or to do anything indicating a necessity for such re- straint, nor in the absence of these indications that he should be a notoriously bad character.^ Where friends of the prisoner threaten to release him by force, the officer may be justified in placing his prisoner in irons immediately after the threats are made. ^^ «8 Leigh V. Cole, 6 Cox C. C. (Eng.) 329. 8^ Firestone v. Rice, 71 Mich. 377. 8^ Cochran v. Toher, 14 Minn. 385. 114 THE LAW OF ARREST CHAPTER IX DISPOSING OF THE PRISONER § 195. Officer's Duty after Arrest. — After an ar- rest has been made, the next duty of the arresting party is to have his prisoner before a magistrate,^ in order that the offence with which the prisoner is charged may be inquired into. To this effect the prisoner may be confined in the most suitable place, for a reasonable time, until it is possible for him to be taken before the magistrate. The length of time during which this confinement may con- tinue lawful will vary according to the circum- stances of the case, but it may be laid down as a general rule that it must continue no longer than the exigencies of the case absolutely demand, and any further delay will make the officer guilty of false imprisonment.^ § 196. Unconstitutional Law is no Protection to Officer. — So where a town by-law authorized an officer to arrest and detain without warrant for the space of forty-eight hours, it was held that such 1 See § 96, supra; Kindred v. Stitt, 51 111. 401. 2 Burke v. Bell, 36 Me. 317 ; Cochran v. Toher, 14 Miun. 385. DISPOSING OF THE PRISONER 115 law was repugnant to the general law of the State, and therefore void, and that in an action for tres- pass, the officer could not justify his acts under that law.^ And where the detention was for five days, it was unreasonable, as a matter of law, and should not have been left to the jury to consider as a matter of § 197. Termination of OfBcer's Control. — When an officer has made an arrest under a warrant, his custody of the prisoner does not cease until the prisoner has been discharged, admitted to bail, or committed to jail upon a mittimus issued by the court, ^ and it is his duty to exercise such control over the prisoner that he may not escape until the discharge, admission to bail, or commitment has been secured. When the arrest is without warrant, the officer's custody may cease without taking the prisoner before the magistrate, in certain cases, as where he makes an arrest upon suspicion, and the suspicion subsequently disappears,^ or where, even in case the statute commands that the officer take his prisoner before the magistrate, the express waiver of this right by the prisoner will justify the officer in discharging him for good reason.^ 8 Burke v. Bell, 36 Me. ol7. * Cochran v. Toher, 14 INIinn. 385. 6 Com. V. Morihan, 4 Allen (Mass.), 585. " Burke c. Bell, supra cit. " Brock r Stimson, 108 Mass. 520 ; Phillips v. McFadden, 125 Mass. 198. 116 THE LAW OF ARREST § 198. Use of Handcuffs. — To get his prisoner to a suitable place of confinement, or before the magistrate, he may use all force that is reasonably necessary, and he may handcuff his prisoner when- ever it may reasonably appear to him to be neces- sary to do so in order to retain his custody of the prisoner,^ even though it should subsequently be shown that the act of handcuffing was entirely un- necessary.^ But an officer who has arrested a de- fendant in a civil suit, or a person accused of a crime, has no right to handcuff him unless it is reasonably necessary, or he has attempted to make his escape. ^"^ And, without some good reason, a prisoner must not be brought shackled into court. ^^ § 199. Right to take Prisoner through Streets in Scanty Attire. — If a person legally arrested, even by a private person without a warrant, is not suffi- ciently attired, and after an opportunity to clothe himself is given him, he refuses to put on clothing, he may be taken, if necessary, through the public street without the usual attire, and delivered thus to the proper authority. ^^ 8 Dehm v. Hinman, 56 Conn. 320; State v. Stalcup, 2 Ired. (X. C.) 50. " Firestone v. Rice, 71 Mich. 377. 10 Wright V. Court, 4 B. & C. (Eng. K. B.) 596. " State i;. Kring, 64 Mo. 591 ; Faire v. State, 58 Ala. 74 ; People v. Harrington, 42 Cal. 165 ; Lee v. State, 51 Miss. 566. 12 Handcock v. Baker, 2 Bos. & Pul. (Eng. Com. PI.) 260. DISPOSING OF THE PRISONER 117 § 200. Searching the Prisoner. — An officer has a right to search the prisoner for the purpose of taking from him anything that may be used as evi- dence in prosecuting him,^"^ or anything that may be used by the prisoner in esca^jing, or to injure either himself or others, but there exists no right to remove from the prisoner his money or any other valuables that may be used by him in providing for his defence.^* In an important English case it was said by Jus- tice Patterson : " The prisoner complains that his money was taken from him, and that he was thereby deprived of the means of making his de- fence. Generally speaking, it is not right that a man's money should be taken away from him, un- less it is connected in some way with the property stolen. If it is connected with the robbery, it is quite proper that it should be taken. But unless it is, it is not a fair thing to take away his money which he might use for his defence. I believe con- stables are too much in the habit of taking away everything they find upon a prisoner, which is cer- tainly not right. And this is a rule which ought 18 Spalding r. Preston, 21 Vt. 9; O'Connor v. Backlin, 59 N. H. 589; Ex parte Hurn, 92 Ala. 102; Reifsnyder V. Lee, 44 Iowa, 101 ; Dillon v. O'Brien, IG Cox C. C. (Eng.) 245. " Stuart V. Harris, 69 111. App. 068 ; Rickers v. Siracox, 1 Utah, 33; Hubbard v. Gamer, 115 Mich. 400. Contra: O'Connor v. Backlin, oO N. II. 569; Couiuiercial Exch. Bank V. McLeod, 65 Iowa, 665. 118 THE LAW OF ARREST to be observed by all policemen and other peace officers. " ^^ § 201. Removal of Clothing. — When it becomes necessary to search and take property from the prisoner, all necessary force may be used to accom- plish this end,^^ and if necessary the clothing of the prisoner may be removed to complete the search.^" § 202. Search may be made at Time of Arrest. — An officer, at the time of making an arrest, may be justified in searching his prisoner, to protect himself. The mere fact that the prisoner is drunk and disorderly will not justify a searching, but a prisoner may, by violent language and conduct, make such search a reasonable and prudent proceeding. ^^ § 203. Compulsory Physical E:xamination. — The right to search does not give the right to make a compulsory physical examination for the purpose of obtaining evidence. ^^ The right to one's person may be said to be a right of complete immunity, — to be let alone ; '■^^ and further, it has been held that to subject the " Rex V. O'Donnell, 7 C. & P. (Eng. N. P.) 138. 16 Dillon r. O'Brien, 16 Cox C. C. (Eng.) 245. 1^ Woolfolk V. State, 81 Ga. 551. 18 Leigh V. Cole, G Cox C. C. (Eng.) 329. i» People V. McCoy, 45 How. Pr. (X. Y.) 216; Agnew v. Jobson, 13 Cox C. C. (Eng.) 625; Blackwell v. State, 67 Ga. 76. ^ Cooley on Torts, p. 29. DISPOSING OF THE PRISONER 119 prisoner to a physical examination against his will, is a violation of the spirit of the Constitution of the United States, Article V, Amendment, which declares that no person shall, in any criminal case, be compelled to be a witness against himself. ^^ But an officer may compel the accused to put liis foot into a footprint found at the place where the crime was committed, and at the trial testify to the result of the comparison, ^^ or compel the accused to exhibit tattoo marks on his arm for the purpose of identification. 2^ And where the prisoner, charged with homicide, alleged that her hand, which she had wrapped in bandages, had been burned in her endeavor to put out the fire upon the deceased, she was compelled to unwrap it and show it to a physician, and the examination was held justifiable. ^^ 21 People V. :\IcCoy, 4.5 How. Pr. (X. Y.) 216. 22 State V. Graham, 74 X. C. 640. 23 State V. Ah Chney, 14 Nev. 79. 2* State V. Garrett, 71 N. C. 85. 120 THE LAW OF ARREST CHAPTEE X ARREST IN EXTRADITION PROCEEDINGS § 204. Extradition and Rendition distinguished. — The process of demanding and giving up fugi- tives from justice, if between nations, is called ex- tradition ; if between States of the same nation, is called rendition, although it is very usual to term the process of demanding and giving up fugitives from justice " extradition," whether between States or nations. § 205. Extradition. — Definition. — Extradition is the surrender by one sovereign State to another, on its demand, of persons charged with the commis- sion of crime within its jurisdiction, that they may be dealt with according to its laws. ^ § 206. Matter of Comity. — Except under the provisions of treaties, the delivery by one country to another, of fugitives from justice, is a matter of comity, and not of obligation;^ and a State of the United States cannot regulate the surrender of 1 Bouvier's Law Diet. (Extradition). 2 U. S. V. Raueher, 119 U. S. 407. ARREST IN EXTRADITION PROCEEDINGS 121 fugitives from justice to foreign countries, for that province belongs solely to the Federal government. ^ § 207. Authority for Issue of Warrant. — A war- rant for an arrest in an extradition proceeding may issue under authority of sections 5270-5280 of the Eevised Statutes of the United States, and under the provisions of the Constitution of the United States, Article IV, Amendment. § 208. Magistrates designated. — The magistrates authorized by the Eevised Statutes, section 5270, to issue such warrants, are the justices of the Su- preme Court, circuit judges, district judges, any commissioner authorized by any court of the United States, or a judge of a court of general jurisdiction of any State. § 209. Requisites of "Warrant. — The requirements respecting complaint, oath, and of the warrant itself, are the same as those respecting ordinary warrants. It need not be accompanied by the in- dictment or affidavit upon which it is based. ^ The warrant must show on its face that the mag- istrate issuing it is one authorized to act in extra- dition cases."'' Such warrant is void, unless it shows 8 People V. Curtis, 50 N. Y. 321. * Ex parte Stanley, 25 Tex. App. 372 ; People v. Don- ahue, 84 N. Y. 438. 6 In re Ferez, 7 Blatchf. (U. S. C. C.) 35. 122 THE LAW OF ARREST on its face that a requisition has been made under the authority of the foreign government, on the gov- ernment of the United States, and the authority of the latter government obtained, to apprehend such fugitive.^ It should also state the offence charged, which must be an oft'ence named in the treaty of extradition. It runs throughout the United States.'^ § 210. Re-arrest after Discharge on Habeas Corpus. — If an alleged fugitive be discharged on a writ of habeas corpus, he may be immediately re-arrested on a new complaint and warrant.^ § 211. Taking before a Magistrate. — Upon an arrest in an extradition proceeding, the alleged fugi- tive from justice is to be brought before the official issuing the warrant so that evidence of his crimi- nality may be considered. The degree of evidence must be such that according to the laws of the place where the fugitive is found, it would justify his apprehension and commitment for trial if the crime or offence had been committed there. § 212. Delivery of Fugitive to Demanding State. — If the magistrate deems the evidence sufficient, he will certify the same, together with a copy of the testimony taken before him, to the Secretary of 6 In re Ferez, 7 Blatchf. (U. S. C. C) 35. ■> Tn re Heinrich, 5 Blatchf. (U. S. C. C.) 414. 8 In re Macdonnell, 11 Blatchf. (U. S. C. C.) 170. ARREST IN EXTRADITION PROCEEDINGS 123 State, and commit the jjrisoner to jail until the sur- render he made, which must be within two calendar months. The Secretary of State will then, upon proper demand being made by the foreign govern- ment, order, under his hand and seal of office, in the name and by the authority of the President, the person so committed to be delivered to such person as may be authorized in the name and on behalf of such foreign government to receive him. § 213. Scope of Habeas Corpus Writ. — A fugi- tive about to be returned to the State from which he fled should be allowed enough time to apply for a writ of haheas corinis, in the State of his asylum. But on a writ of Jiaheas corpus the guilt or inno- cence of the prisoner will not be inquired into, for that is exclusively within the province of the courts of the demanding State. ^ The only matters to be inquired into on such writ are whether the pro- ceedings for the extradition have been regular and in compliance with the Constitution and laws of the United States. § 214. Negotiations must be by Highest Execu- tive Officials. — There can be no extradition or ren- dition without a demand by the highest executive authority in the State from which the fugitive from justice has fled, upon the highest executive author- 9 In re Sheldon, 34 Ohio St. 319 ; In re White, 55 Fed. Rep. (U. S.) 5i ; Ex parte Devine, 74 Miss. 715. 124 THE LAW OP ARREST ity of the State in which the fugitive is asylumed. And a warrant to arrest a fugitive in the harboriog State must be issued only upon sanction and order of the highest executive official, — the chief magis- trate of that State. ^^ The judiciary of the United States possess no jurisdiction in matters of extra- dition until a demand has been thus made and sanctioned. § 215. Method of Procedure. — The usual method of action in extradition cases, is for some police officer, or other special agent, to obtain proper papers in his own country and go with them to a foreign country, and there, with the aid of his government's representative to that country, prose- cute his case and return with the fugitive in his custody to the country having jurisdiction of the crime. ^^ § 216. Matter of Treaty or Comity. — Although the matter of extradition is usually governed by treaty, it is not necessarily so, for the matter in absence of a treaty rests entirely with the govern- ment on which the demand is made, and each gov- ernment may surrender although no treaty exists. And where a treaty does exist, the country upon which the demand is made, may, through comity, — 10 In re Ferez, 7 Blatchf. (U. S. C. C.) 35. " 8 Op. Atty. Gen. 521. ARREST IN EXTRADITION PROCEEDINGS 125 that is, good will, — deliver up a fugitive from justice for a crime not mentioned in the existing treaty. ^^ § 217. No Comity on Part of United States. — The United States, however, has always declined to sur- render criminals, unless bound by treaty to do so,^^ and the courts of this country possess no power to arrest and surrender to a foreign country fugitives from justice, except as authorized by treaty stipula- tions and Acts of Congress passed in pursuance thereof. 14 § 218. Surrendered Fugitive may be tried only for Crime upon which he "was extradited. — A fugi- tive surrendered by a foreign government can only be tried for the crime for which he was extradited, ^^ until after he has been released from custody and given sufficient opportunity to return to the coun- try from which he was extradited. After sufficient time for this purpose has elapsed, he may be re- arrested and tried for any offence with which he is charged. 12 Ex parte Foss, 102 Cal. 347. " Holmes r. Jeniiison, 14 Pet. (U. S.) 540. 1* In re Kaine, 14 How. (U. S.) 103. 16 U. S. V. Watts, 14 Fed. Rep. (U. S.) 130; U. S. v. Raucher, 119 U. S. 407; Foster v. Xeilsoii, 2 Pet. (U. S.) 254; Ex parte Hibbs, 26 Fed. Rep. (U. S.) 421 ; State v. Vanderpool, 39 Ohio St. 273; Com. v. Hawes, 13 Bush (Ky.)> 697. 126 THE LAW OP ARREST § 219. Kidnapped Fugitive tried for any Crime. — But where a fugitive from justice has been kid- napped from a country, betweSn which country and the United States an extradition treaty exists, the prisoner may be tried for an offence not named in the existing treaty, ^^ because the United States in the trial of the accused owes no duty to the State from which he was kidnapped, the treaty of extra- dition not having entered into the incident. § 220. Fugitive in Rendition tried for any Crime. — As between the different States of the United States, any fugitive given up in rendition may be tried for the offence named in the requisition, or any other offence not named therein. ^'^ Where a person has been returned in rendition, as a fugitive from justice from another State, and upon trial has been acquitted of the offence charged, he may be at once re-arrested and prosecuted upon another charge, without being given an opportunity to return to the State of his previous asylum. ^^ But where one has been extradited for an offence 16 Ker V. Illinois, 119 U. S. 436. 1' Mahon v. Justice, 127 U. S. 700; Carr v. State, 104 Ala. 4; Com. v. Wright, 158 Mass. 149 ; State v. Stewart, 60 Wis. 587; Lascelles v. Georgia, 148 U. S. 537; Lascelles V. State, 90 Ga. 347 ; State v. Kealy, 89 Iowa, 94 ; People V. Cross, 135 N. Y. 536 ; In re Miles, 52 Vt. 609 ; State v. Glover, 112 N. C. 896. Contra: Ex parte McKniglit, 48 Ohio St. 588 ; State v. Hall, 40 Kan. 338. 1* Browning v. Abrams, 51 How. Pr. (N. Y.) 172; Reid V. Ham, 54 Minn. 305. Contra : Comjpton v. Wilder, 40 Ohio St. 130. ARREST IN EXTRADITION PROCEEDINGS 127 which is not a crime, he caunot be detained to answer for another offence until he has had an op- portunity to return to the State whence he was extradited, ^^ And one under bail cannot be con- sidered as having an opportunity to return to the State whence he was taken, ^^^ because one under bail cannot be considered as having a right to leave the State in which he is bailed. § 221. Jurisdiction procured by Stratagem. — A prisoner cannot set up as a ground for discharge that he has been enticed into the State by fraudu- lent representations,^^ nor that the extradition pro- ceedings in the other State were irregular, ^^ j^or that he was kidnapped and thus brought into the juris- diction of the trial court. '^^ So where one was indicted in Kentucky for mur- der, and escaped to West Virginia, from which State he was forcibly abducted to Kentucky, it was held that the prisoner was not entitled to be discharged from custody under a writ of habeas corpus from the Circuit Court of the United States. And the fact that extradition proceedings had been instituted was not material. 2* ^3 In re Cannon, 47 Mich. 481. See also Ex parte Slan- son, 73 Fed. Rep. (U. S.) GGG. 20 In re Cannon, supra cit. 2^ In re Brown, 4 N. Y. Cr. Rep. 576. ^ In re Miles, 52 Vt. G09. 23 Ker V. Illinois, 119 U. S. 436 ; Mahon i-. Justice, 127 U. S. 700. 2* Mahon v. Justice, supra cit- 128 THE LAW OF ARREST § 222. Constitutional Provisions. — Eespectingin- terstate reudition it is provided by the Constitution of the United States, Article IV, Section 2, that " A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, upon demand from the executive authority of the State from which he fled, be delivered up, to be removed to the State hav- ing jurisdiction of the crime." The words "trea- son, felony, or other crimes " cover misdemeanors as well as felonies. ^^ It is, however, safe to say that there will be no rendition for offences that are too trivial either in financial importance, or in moral obliquity, to receive the attention of the exec- utive authority of the State in which the fugitive has taken refuge, to the exclusion of State matters of greater importance. § 223. Arrest may be before Extradition Pro- ceedings are begun. — A fugitive from justice may be arrested in the State to which he has Hed, even before the rendition proceedings have been started, ^"^ by making complaint upon oath before the proper magistrate, clearly setting forth the facts constitut- ing the offence. 2^ 25 Ex parte Reggel, 114 U. S. 642; In re Greenough, 31 Yt. 279; Morton v. Skinner, 48 Ind. 123 ; Com. t,\ Johnston, 12 Pa. Co. Ct. 263; State v. Hudson, 2 Oliio N. P. 1. 26 In re Fetter, 3 Zab. (N. J.) 311. But see Malcolmson V. Scott, 56 Mich. 459. 27 In re Ileyward, 1 Sandf. (N. Y.) 701. ARREST IN EXTRADITION PROCEEDINGS 129 § 224. Preliminary Proceedings before Requisi- tion. — Before there can be a requisition or rendi- tion in such interstate matter, there must have been an indictment found, or an aftidavit made before a proper magistrate, in the State from which the requisition papers issue, charging the fugitive with treason, felony, or other crime, ^"^ a copy of which indictment or affidavit must be certified as au- thentic by the Governor of the State from which the fugitive fled, and presented with the requisi- tion papers. Upon the matter being thus properly presented, the executive of the State to which the fugitive has fled should cause the arrest and deten- tion of the fugitive for a period of not longer than six months, until the agent of the State presenting the requisition may appear.'^ § 225. Nature of Crime charged. — As the offence charged must be a crime, rendition will not lie for a prosecution in bastardy proceedings. 3** The term " other crime, " as an extraditable offence, includes statutory as well as common law crimes ;^^ in fact any offence indictable by the laws of the demanding State may furnish grounds for extradition. ^2 28 Ex parte White, 49 Cal. 433. 29 Act of Cong. Feb. 12, 1793; Stat. Large, 302. 8^ In re Cannon, 47 Mich. 481. *^ People ex rel. Jourdan v. Donahue, 84 N. Y. 438. 82 Browu's Case, 112 Mass. 409. y 180 THE LAW OF ARREST § 226. Surrender in Rendition is Obligatory. — The duty to surrender in rendition, being com- manded by the Constitution of the United States, Article IV, Section 2, is obligatory, and does not rest on comity, as in extradition.^ § 227. Who is a Fugitive from Justice ? — Under a statute providing interstate rendition, a person is a fugitive from justice w^hen he has committed a crime within a State, and withdrawn from the jurisdiction of its courts without waiting to al:)ide its consequences,^* and it matters not that some other cause than a desire to flee induced such withdrawal. ^^ To warrant the extradition of such fugitive from justice, it is not necessary that he should have left the State wherein the crime was committed for the purpose of avoiding a prosecution, either antici- pated or begun, but it is sufficient that having committed an offence which by the laws of the State constitutes a crime, when it comes to subject him to the process of the State to answer for his offence, he has left its jurisdiction and is found ^^ In re Voorhees, 32 N. J. 145. «* State V. Hall, 115 N. C. 811; In re Voorhees, 32 N. J. 141 ; Hibler v. State, 43 Tex. 197 ; In re White, 55 Fed. Rep. (U. S.) 54. s5 White ;;. Vallely, 14 U. S. App. 87 ; In re Block, 87 Fed. Rep. (U. S.) 981; Roberts r. Reilly, IIG U. S. 80; In re Sultan, 115 X. C 57; State v. Richter,'37 Minn. 436; In re White, 50 Fed. Rep. (U. S.) 54. ARREST IN EXTRADITION PROCEEDINGS 131 within the territory of another State. ^^ Extradi- tion does not lie for a party who is not a fugitive from justice alth.ough he has constructively com- mitted a crime in a State. '^" 36 AVhite ('. Viillely, U U. S. App. 87. 37 Wilcox 1-. Xolze, 34 Ohio St. 520 ; Mohr's Case, 73 Ala. 503. 132 THE LAW OF ARREST CHAPTER XI EVIDENCE NECESSARY TO ESTABLISH THE OFFENCE § 228. Proof must be Beyond a Reasonable Doubt. — An officer who, upon his own responsibil- ity, makes an arrest without a warrant, is generally called upon to show that an offence was committed which justified him in arresting the offender. To establish the crime he has the burden of prov- ing, beyond a reasonable doubt, all the elements which go to make up the offence.-^ And the mere preponderance of evidence is never sufficient to con- vict one of crime, but a greater degree of proof is necessary, — proof that will not allow a reasonable doubt of the prisoner's guilt to remain in the mind of the court, or of the jury, as the case may be. ^ § 229. Burden of Proof Remains on Prosecutor. — And this burden remains with him to the end of the case, for the burden of proof as to the necessity of establishing the ultimate fact to be proved, that is, the fact of the commission of the crime, or the 1 Farley v. State, 127 Ind. 419; State v. Rogers, 119 N. C. 793. 2 Lee V. State, 76 Ga. 498; Gray v. Com., 101 Pa. 380. EVIDENCE TO ESTABLISH THE OFFENCE 133 corpus delicti,^ the identity of the prisoner,* and the guilt of the accused never shifts from the prosecution. •'' § 230. Burden of Giving Evidence may shift.. — While the burden of proof in making out a prima facie case, where a crime is charged, never shifts from the prosecution, yet where the defendant, in- stead of producing proof to negative the proof adduced by the prosecution, proposes to show an- other and distinct proposition which avoids the effect of the evidence adduced by the prosecution, there the burden of proof, or rather the burden of giving evidence, does shift, and rests upon the party who proposes to show the latter fact. ^ As where the prisoner endeavors to prove an alibi, that being a new and distinct proposition which, if proved, 8 Rex V. Burdette, 4 B. & Aid. (Eng. K. B.) 95; State v. Davidson, 30 Vt. 377; People v. Palmer, 109 N. Y. 110; Willard v. State, 27 Tex. App. 3S6. The corfjus delicti cau- iiot be established alone by confessions of the accused ; otiier evidence is necessary. People v. Hennessey, 15 Wend. (X. Y.) 147 ; Gore v. People, 162 III. 205; State v. German, 54 Mo. 526; People r. Tarbox, 115 Cal. 57; Attaway v. State, 35 Tex. Cr. 403; Holland v. State, 39 Fla. 178; Harden r. State, 109 Ala. 50. * Winslow V. State, 76 Ala. 42; Gore v. People, 102 111. 265. 6 People V. Plath, 100 X. Y. 590; Jones v. State, 51 Ohio St. 331; Williams v. People, 101 111. 385; State v. Harvey, 131 Mo. 330; Gravely v. State, 38 Neb. 871. e Powers v. Russell, 13 Pick. (Mass.) 69. 134 THE LAW OF ARREST will avoid the effect of the plaintiff's evidence, the burden of proving the alibi rests upon the accused. "^ § 231. Burden of Proof does not shift. — Yet even there the burden of ^rooi does not shift in a practical sense, for if the prisoner fails to establish the new and distinct proposition which he inter- poses in his own defence, and which need only be established by a preponderance of evidence, what- ever evidence he does produce to that end must be weighed in the balance, and if upon all evidence produced by both parties, there remains a reason- able doubt of the prisoner's guilt, he must be ac- quitted,^ for the prisoner is always entitled to the benefit of a reasonable doubt. § 2.32. Presumption of Innocence. — While it is a well-established principle of law that " a man is presumed to be innocent until he is found guilty. " this presumption has no other effect than casting upon the State the burden of proving the guilt of the accused beyond a reasonable doubt. It has no weight as evidence in the trial, and although it calls for evidence from the State it is not evidence for the accused.^ '' Com. V. Choate, 105 Mass. 451; Carlton v. People, 150 111. 181; State v. Taylor, 118 Mo. 153; Towns v. State, 111 Ala. 1 ; People v. Pichette, 111 Mich. 461. 8 Com. V. Choate, 105 Mass. 4.52; Walters v. State, 39 Ohio St. 215; State v. Chee Gong, 16 Oreg. 534 ; Borrego v. Ter., 8 N. M. 446. ^ State V. Smith, 65 Conn. 285. EVIDENCE TO ESTABLISH THE OFFENCE 135 The accused starts into a trial with the presump- tion of innocence in his favor, and it stays with him until it is driven out of the case by testimony. And whenever the evidence shows beyond a reason- able doubt tliat the crime as charged has been committed, or that a crime exists, then the pre- sumption of innocence disappears from the case.^*^ § 233. Burden -when Charge is Use of Excessive Force. — Where an otticer is on trial charged with using excessive force in the act of making an arrest, the burden is on the State to show the use of ex- treme measures. And all the circumstances sur- rounding the act of arrest should be looked into to determine that question. ^^ § 234. Burden to shovy Offence in Officer's Pres- ence. — Where an officer arrests a person without a warrant, for an offence less than a felony, the bur- den is on him, when sued in trespass therefor, to sliow that the offence was in fact committed in his presence. ^^ § 235. Burden to show Authority to arrest. — And a person who assumes to arrest another who, when sued in trespass therefor, attempts to justify his act on the ground that he acted as a jjolice offi- 10 Allen V. U. S., 164 U. S. 500. Contra .- Fark-y v. State, 127 Ind. 421. 11 State r. Dierberger, 06 Mo. 666. 1- Shanley i-. Wells, 71 III. 78. 136 THE LAW OF ARREST cer, must not merely show that he was an officer de facto, but that he was an officer de jure, that he was legally and duly qualified to act as an officer. ^^ § 236. Burden to show License. — In an action for selling articles without a license, the burden is upon the defendant to show that he has complied with the law and has a license to sell.^* But the presumption of innocence is still with the defendant. ^^ § 237. Weight of Evidence on Insanity. — Ee- specting the weight of evidence necessary to estab- lish the insanity of the defendant in a criminal case, there are two distinct lines of authority. The weight of authority in this matter seems to be that the defendant in a criminal action has the burden of establishing his plea of insanity only to such an extent as to create a reasonable doubt of his sanity. ^^ The other view is that the defendant must establish his insanity by a greater degree of evidence, — that which is a preponderance of the testimony. ^"^ 13 Short V. Symmes, 150 Mass. 298. " Com. V. Holstine, 132 Pa. St. 357; Williams v. People, 121 111. 84; Com. v. Thurlow, 24 Pick. (Mass ) 374; Liggitt V. People, 26 Col. 364; State v. Sorrell, 98 N. C. 738; State V. Keggon, 55 N. H. 19 ; State v. Shelton, 16 Wash. 590; People v. Curtis, 95 Mich. 212; Birrr. People, 113 111. 647. 1^ Com. V. Holstine, supra cit. 16 Davis V. U. S , 160 U. S. 469. " People V. Bemmerly, 98 Cal. 299 ; Loegrove v. State, 31 Tex. Cr. Rep. 491. EVIDENCE TO ESTABLISH THE OFFENCE 137 § 238. Evidence of Bad Character. — Bad charac- ter is not admissible to show a disposition to do a particular thing, but may sometimes be ofl'ered to throw light on a motive. ^^ When character is not itself in issue, evidence of bad character can never be introduced by the prosecution until the prisoner has opened the way by producing evidence of his own good character. ^^ So the fact that the defendant was an ex-convict, having been imprisoned before, was not competent evidence against him, he not having introduced evidence in support of his good character. ^'^ But if the accused takes the stand in his own behalf, his reputation for veracity may be attacked just the same as that of any other witness. ^^ § 239. Character Evidence must be General. — Evidence as to character must be contined to general reputation, and must not touch upon particular acts. 2^ And, as a general rule, evidence as to char- is People V. McLaughlin, 150 X. Y. 3G5 ; Wright v. State, 108 Ala. 60. 19 State V. Lapage, 57 N. II. 245; People v. White, U Wend. (N". Y.) Ill; People v. Fair, 43 Cal. 137; State r. Hull, 18 R. I. 207; Young v. Com., 6 Bush (Ky.), 312; State V. Creson, 38 Mo. 372 ; Reg. v. Rowton, 10 Cox C. C. (Eng.) 25. 2° People V. White, supra cit. 21 Com. V. O'Brien, 119 Mass. .342. 2"^ Com. V. O'Brien, supra cit. ; Com. v. Harris, 131 Mass. 336; Stalcup v. State, 146 Ind. 270; State v. McGee, 81 Iowa, 17; Evans c. State, 109 Ala. 11; Garner v. State, 28 138 THE LAW OF ARREST acter, when admissible in criminal cases, is to be contined to the particular trait in question. ^^ § 240. Good Character is always Admissible. — Good character may be shown Ijy the prisoner to es- tablish the improbability of his having committed the crime with which he is charged, and it may be such strong evidence as to create a reasonable doubt in the face of overwhelming facts of guilt. ^* § 241. Nature of Character Evidence. — Evidence to prove character may be by the testimony of those who know the character of the party, or by the repu- tation which the party bears in the community, or by particular conduct. And as the character of a man is subject to a change, it is very material that character evidence relate to the time near when the crime charged was committed. § 242. Conduct as Evidence of Guilt. — It is competent evidence against the prisoner that he Fla. 113; Basye i'. State, 45 Neb. 261; State v. Lapage, 57 N. n. 245 ; Hirschman v. People, 101 111. 574. 23 Clark V. Brown, 116 Mass. 504. 24 People V. Van Dam, 107 Mich. 425; Cora. v. Wilson, 152 Mass. 12; Cora. v. Leonard, 140 Mass. 473; Aneals v. People, 134 111. 401 ; Hall v. State, 132 Ind. 317 ; Stewart v. State, 22 Ohio St. 477 ; State v. Schleagel, 50 Kan. 325 ; State ('. Douohoo, 22 W. Va. 761 ; Pariish v. Cora , 81 Va. 1 ; State c Ward, 73 Iowa, 532 ; Gib.soii v. State, 89 Ala. 121; Uardtke v. State, 67 Wis. 552; Edgington v. U. S., 164 U. S. 361. EVIDENCE TO ESTABLISH THE OFFEN'CE 139 was silent when charged with the crime, ^^ or that he destroyed evidence of his guilt, ^^ or marks of ownership, 2^ or that he took to flight,-^ conceal- ment, or disguise,-'-* or attempted to stiHe investiga- tion, or possessed the fruits of his crime, ^*^ or that there are unexplained suspicious appearances, or that he attempted to commit the same crime at another time, or that he used communicated threats. ^^ § 242 a. Possession of Stolen Goods as Evidence. — When a theft has been committed, and, immedi- ately after the commission of the crime, the stolen property is found in possession of the party sus- 25 Rex V. Smithies, 5 C. & P. (Eng. X. P.) 332 ; Ackerson v. People, 124 111. 572 ; People v. McCrea, 32 Cal. 98 ; Franklin v. State, 69 Ga. 36. Contra : Cora. r. McDermott, 123 Mass. 440; Com. v. Walker, 13 Allen (Mass.), 570 ; Com. v. Kenney, 12 Mete. (Mass.) 235. 26 So. P. R. Co. r. Johnson, 44 U. S. App. 1. 27 Wilson V. U. S., 162 U. S. 613. 28 State V. Frederic, 69 Me. 400; State v. Rodman, 62 Io^^•a, 456; Bell v. State, 115 Ala. 25; Sewell v. State, 76 Ga. 836. 2« Com. V. McMahon, 145 Pa. St. 413; State r. Bradneck, 09 Conn. 212; Com. v. Brigham, 147 Mass. 414. «o Goon Bow v. People, 160 111. 438 ; AVilson v. U. S., supra cit. 81 Ward I'. State, 30 Tex. App. 687; Ford r. State, 112 Ind. 373; People v. Duck, 01 Cal. 387; Painter r. People, 117 111. 462; Griffin r. State, 90 Ala. 596; Liiiehan v. State, 113 Ala. 70; Brooks v. Com., 100 Ky. 194 ; State i: Edwards, 34 La. 1012; State v. McKinney, 31 Kan. 570. 140 THE LAW OF ARREST pected of the theft, it is prima facie evidence of the guilt of the person in whose possession the property is found, and unless other circumstances surrounding the case serve to create a reasonable doubt, is sufficient to convict.^ And if the finding of the property in the posses- sion of the accused is immediately after the com- mission of the offence, it is almost conclusive evidence of his guilt ; but the presumption of guilt weakens as time elapses. ^^ Although the unexplained possession of property may sometimes justify an arrest on suspicion, the defendant is never bound at his trial to explain the possession of recently stolen property, because the burden of proving the offence beyond a rea- sonable doubt is on the prosecution. 2* § 243. Intoxication as a Defence vrhere Specific Intent is Essential. — Voluntary intoxication is no defence to a criminal charge. ^^ But where a specific *'^ Com. V. Randall, 119 Mass. 107; Keating v. People, 160 111. 486; State v. Walker, 41 Iowa, 217; Gablick v. People, 40 Mich. 292. 23 Gablick v. People, 40 Mich. 292; Com. v. JNIontgomery, 11 Mete. (Mass.) 534; White v. State, 72 Ala. 195; Belote V. State, 36 Miss. 96. 3* Hoge v. People, 117 111. 44; State v. Miner, 107 Iowa, 656; Van Straaten v. People, 26 Col. 184; Heed v. State, 25 Wis. 421 ; Smith v. State, 58 Ind. 340. 85 4 Bl. Cora. 26; 1 Hale's P. C. 32; Hopt v. Utah, 104 U. S. 631 ; State v. Tatro, 50 Vt. 483 ; Crosby v. People, 137 111. 341; Shannahau r. Com., 8 Bush (Ky.), 463; State EVIDENCE TO ESTABLISH THE OFFENCE 141 intent, that is, an intent to do a certain thing, is a necessary ingredient of the crime charged, intoxi- cation may be set up in defence to show that the specific intent could not exist. ^^ For example, a breaking and entering of a dwell- ins-house in the night-time will not constitute burglary unless at the time of the breaking and entering there exists a specific intent to commit a felony therein, and the intoxication may be of such a degree as to negative the existence of this specific intent. § 244. Confession by Intoxicated Person. — A confession made by a party who is so intoxicated as not to understand it, is not admissible.^" § 245. Confession, if not Voluntary, is Inadmissi- ble. — A confession of the prisoner is not admissible as evidence unless it was voluntarily made, and was V. West, 157 ]Mo. 309; Conley v. Com., 98 Ky. 125; People V. Miller, lU Cal. 10; Colee r. State, 75 Ind. 511; Rex r. Carroll, 7 C. & P. (Eng. X. P.) U5. 36 Rex r. Pitman, 2 C. & P. (Eng. N. P.) 423 ; Com. V. Ilageulock, 140 JNIass. 125; Crosby v. People, 137 111. 342 ; Schwabacher v. People, 165 111. 629 ; Com. v. Dorsey, 103 Mass. 412; State v. Garvey, 11 Minn. 154; Warner r. State, 56 N. J. L. 686; Lancaster v. State, 2 Lea (Tenn.), 575; State v. Fiske, 63 Conn. 388; Jenkins v. State, 93 Ga. 1 ; Pigman v. State, 14 Ohio, 555; Cline v. State, 43 Ohio St. 332; Hopt v. Utah, 104 U. S. 631; People r. Walker, 38 Mich. 156; Englehardt v. State, 88 Ala. 100; People v. Young, 102 Cal. 411. 87 Com. I'. Howe, 9 Gray (Mass.), 110. 142 THE LAW OF ARREST not inspired by influence of hope or fear.^*^ And the burden as to voluntary character of the confes- sion is on the prosecution.^^ If the confession was obtained by any promises, or threats, of some one in authority over the accused, it is not admissible. So where a police oflticer arrested the defendant for larceny from the person, he said to him : " If you will get the money it will not be used as evi- dence against you ; I want to get back the money. " On the next day the defendant confessed to another police officer. It was held that, although the state- ments of the second officer were admissible, the refusal of the judge at the trial for the offence to instruct the jury that they ought to give no weight to the confession, if they thought it was made under the influence of the inducements, gave the defend- ant a good ground of exception.**^ If an officer should say to the accused, " You had better tell the truth, " or, " You had better tell about it," any confession given by the accused thereafter would be incompetent ; because such lan- guage would naturally convey to the mind of the accused that he would gain some advantage if he confessed his guilt. On the other hand, if the offi- cer merely asked the prisoner to tell the truth, this 88 Com. V. Culver, 126 Mass. 464; Com. v. Burroughs, 162 Mass. 513. 89 Hopt V. Utah, 110 U. S. 587; Roesel i;. State, 62 N. J. 216 " Cora. V. Cullen, 111 Mass. 435. EVIDENCE TO ESTABLISH THE OFFEN'CE 143 would not imply that the officer promised any ad- vantage if he confessed, and a confession resultant therefrom would be admissible.*^ And a confession procured by artifice, deception, or falsehood, if otherwise competent, is admissible. '^''^ To exclude the confession, the promise of favor must have been made by one in authority,*^ and respecting punishment for the crime charged;** and the promise must have been relied on in making the confession. § 246. Entire Confession must go in. — When a confession is introduced as evidence, the entire confession must go in,*^ and it is always open to explanation by the accused,*'' for the doctrine of estoppel does not apply in criminal cases. *'^ § 247. Collateral Evidence obtained by Confes- sion is Admissible. — Althougli a confession obtained by improper means is not admissible against the " Com. V. Preece, 140 Mass. 27G ; Flagg r. People, 40 Mich. 706; Robinson r. People. 159 TU. 119: State v. Day, 5.0 Vt. .o70. Contra : State v. Bradford, loO Mo. 91 ; State v. Komstoll, 61 Pac. Rep. (Kan.) 80."). 42 Burton v. State, 107 Ala. 108; State v. Phelps, 74 Mo. 136; Andrews v. People, 117 111. 201; People r. Barker, 60 Mich. 277; Osborn v. Com., 14 Ky. L. 246; Heldt v. State, 20 Xeb 492. 48 Com. V. Kiiapp, 10 Pick. (Mass.) 477. " State !'. Tatro, 50 Vt. 48:5. 4^ People V. Gelabert, 39 Cal. 6f33. " State V. Brown, 1 Mo. App. 86. *' State I'. Hutchinson, 00 Iowa, 478. 144 THE LAW OP ARREST accused, yet any collateral evidence obtained by means of the confession may be used against the prisoner.*^ As where, by promise of favor, a con- fession was obtained which disclosed the stolen property located in the bed of the prisoner, the confession was inadmissible, but the fact that the property was found in the possession of the pris- oner is admissible.''^ § 248. Criminal Act and Criminal Intent must be Concurrent. — To constitute a crime, it is necessary that there exist in the mind of the accused a criminal intent at the very time when he does the criminal act, — that is, the act and the intent must co-exist, § 249. Criminal Capacity of Children. — The law conclusively presumes that a child under the age of seven years cannot entertain a criminal intent, and therefore can never be guilty of a crime. ^'^ A child between the ages of seven and fourteen years is only prima facie incapable of committing a crime, that is, the presumption that the child has not the criminal capacity may be rebutted by proof that 48 Com. V. Knapp, 9 Pick. (Mass.) 496; Williams v. Com., 27 Gratt. (Va.) 997; Gates v. People, 14 111. 437; White i\ State, 3 Heisk. (Tenn.) 338; Duffy v. People, 26 N. Y. 588; People v. Barker. 60 Mich. 277. 49 Pvex V. Warickshall, 1 Leach C. C. (4th ed.) 263 ; State V. Graham, 74 N. C. 646. 60 People I'. Townsend, 3 Hill (X. Y.), 479 ; 4 Bl. Com. 23 ; 1 Hale's P. C. 27. EVIDENCE TO ESTABLISH THE OFFENCE 145 he is capable of forming the necessary criminal in- tent. ^^ In case of a crime charged against one under fourteen years of age, the burden of proof is on the prosecution to show that the party so charged has the capacity of forming a criminal intent, that is, of entertaining a guilty knowledge that he was doing wrong. °^ § 250. Dying Declarations. — A statement made by one who believes himself to be in a dying con- dition, by reason of the solemnity of the occasion and the disposition of the injured party to speak the truth at that time,^^ is very weighty evidence concerning the inflicting of the wound which caused the homicide, or the circumstances connected there- with.^ Such statements are called " dying declara- tions," and may be either oral or written, or even by signs. ^^ 51 Com. V. Mead, 10 Allen (Mass.), 398; Aiigelo v. People, 9(3 111. 209; State v. Tice, 90 Mo. 112; State v. Adams, 70 Mo. 355 ; State v. Fowler, 52 Iowa, 103 ; Godfrey V. State, 31 Ala. 323; State v. Aaron, 4 N. J. L. 231. 6- Reg. i: Smith, 1 Cox C. C. (Eng.) 260. 53 Rex c. Drummond, 1 Leach C. C. (4th ed.) 337; Peo- ple V. Olmstead, 30 Mich. 431. " Scott V. People, 03 111. 508; Wroe v. State, 20 Ohio St. 460; State v. Garrand, 5 Oreg. 210; State v. Shdton, 47 N. C. 364 ; Savage v. State, 18 Fla. 909 ; State v. R.-ed, 137 Mo. 125; State v. Pearce, 50 Minn. 220; Starr v. Com., 97 Ky. 193; People v. Davis, 56 N. Y. 103; Sullivan r. State, 1(»2 Ala. 135; Bryant v. State, 80 Ga. 272; Ex parte Fatheree, 3t Tex. Or. 594; Puryear r. Cora., 83 Va. 51. 55 Com. V. Casey, 11 Cush. (Mass.) 417 j Mockabee v. 10 146 THE LAW OF ARREST § 251. Condition of the Declarant. — The party making such declaration must be in apprehension of immediate death, and without hope of recovery,^ and death must eventually occur, although the fact that the death does not occur as soon as expected, will not render the declaration inadmissible.^^ § 252. Competency of the Declarant. — The dec- laration must have been made by one who, if living, would be a competent witness in court. ^^ So the dying declaration of a child four years of age was held to be incompetent.^^ § 253. Best Evidence Only is Competent. — Whenever evidence to establish a crime is given, Com., 78 Ky. 382; Daughdiill v. State, 113 Ala. 7; State V. Somuier, 33 La. 239. 66 Com. V. Roberts, 108 Mass. 296; Com. i-. Bishop, 165 Mass. 148; Simons v. People, 150 111. 73; State v. Wilson, 121 Mo. 434; Archibald v. State, 122 Ind. 122; Vanghan v. Com., 86 Ky. 431; State v. Baldwin, 79 Iowa, 714; State V. Daniel, 31 La. 91; Com. v. Mika, 171 Pa. St. 273; Cole V. State, 105 Ala. 76 ; Whittaker v. State, 79 Ga. 87. 5' Com. V. Ilaney, 127 Mass. 455; State r. Reed, 53 Kan. 767; People v. Weaver, 108 ]\Iich. 649; State r. Craine, 120 N. C. 601; People v. Chase, 79 Hun (N. Y.), 296; Moore v. State, 96 Tenn. 209; White v. State, HI Ala. 92; Evans v. State, 58 Ark. 47; Radford v. State, 33 Tex. Cr. 520. 68 Rex V. Pike, 3 C. & P. (Eng N. P.) 598; State v. Ah Lee, 8 Oreg. 214; Rex v. Drummond, 1 Leach C. C. (Eng.) 4th ed. 337; State v. Elliott, 45 Iowa, 486; People v. Sanford, 43 Cal. 29. 63 Rex V. Pike, supra cit. EVIDENCE TO ESTABLISH THE OFFENCE 147 it must be the best eviJeuce obtainable, and any evidence which presupposes better evidence will be rejected. Therefore one may not ordinarily testify to what another person has said, because the party originally making the statement was not under oath or subject to a cross-examination. And then, too, it would be better evidence if from the lips of the person who made the original state- ment, for the party who heard the statement might not have correctly understood it But the sole reason for the rejection of such testimony is that the party was not under oath or open to cross- examination. § 254. Doubt Alvrays goes to Benefit of Accused. — In all cases of doubt arising in the criminal law, the benefit of the doubt should be given to the ac- cused, ^"^ and that too whether the doubt arises upon a construction of the law applicable to the case, or upon the evidence of the guilt of the prisoner. § 255. Ignorance of Law. — It is a maxim of the law that " Ignorance of the law excuses no one. " ^^ There seems, however, to be one exception to that rule, in that where a person takes proi)erty under such circumstances that it amounts to larceny, he is not guilty of larceny if he took it under a bona «o O'Xeil r. State, 48 Ga. 66. ^1 Thoinjisou V. State, 20 Tex. App. 94 ; U. S. v. An- thony, 11 Blatchf. (U. S.) 200. 148 THE LAW OF ARREST fide belief that it was his own, even though the mistake was one of the law governing ownership. "^^ So where A. had set snares on the land of B. , and a servant of B. , finding the snares with an entrapped pheasant in one of them, appropriated them under authority of a statute, to the use of his master. A. , finding the servant had appropriated the snares and pheasant, forcibly compelled the servant to give them up, under the belief that they remained his property. Held, no robbery, because his bona fide impression that he was only getting his own prop- erty showed that the animus furandi, — the intent to steal, necessary to a robbery, was not present. ^^ And where the defendant lent the father of the plaintiff two hundred dollars, and took his note therefor, payable on demand, with interest, and the father died, leaving the note unpaid, the son appro- priated all the property of his deceased father to his own use, taking out no letters of administration. Subsequently while the son was counting money in the presence of the defendant, the defendant seized the money, saying, " that she had a right to it ; that she had been looking for it for a long time, and now she had got it ; that the old man owed her, and now it was time for her to get her own. " Held, that 6^ Com. V. Stebbins, 8 Gray (Mass.), 495 ; Com. v. Doane, 1 Cush. (Mass.) 5; State v. Holmes, 17 Mo. 379: Dye v. Cora., 7 Gratt. (Va.) 662; People v. Husband, 36 Mich. 306; Eex V. Hall, 3 C. & P. (Eng. N. P.) 409. 63 Rex V. Hall, supra cit. EVIDENCE TO ESTABLISH THE OFFENCE 149 the instruction to the jury, that the defendant was not guilty of larceny if she took the money under an honest belief that she had a legal right to take it, was clearly correct.*^* 6* Com. V. Stebbius, 8 Gray (Mass.) 495. 150 THE LAW OF ARREST CHAPTER XII EXEMPTION FROM ARREST § 256. Sovereigns and Diplomatic Agents. — The law of nations protects the sovereign of a friendly foreign country and his retinue of servants from arrest while passing through or sojourning tempo- rarily in our country. ^ The law also protects his ambassador or other diplomatic agent sent by him to this country, 2 and this protection is not ex- tended to the person alone of such functionary, but to his secretary, attendants, and retinue, his couriers and domestic servants as well. ^ Neither he nor his 1 Wheaton's Int. Law, 6th ed. 143, 146. 2 Dupont V. Pichon, 4 Dall. (U. S.) 321 ; Woolsey Int. Law, 135. The remedy against a diplomatic agent who transgresses the criminal laws so as to affect individuals only, is to demand his recall, and if the demand be refused, to expel him from the country. If, however, the crime affect the safety of the government, the government may, if necessary to its safety, seize and hold him until the danger be passed, or forcibly expel him from the country. 7 Op. Atty -Gen. (U. S.) 367. 8 U. S. V. Lafontaine, 4 Cranch (U. S. C. C), 173; Lockwood V. Coysgarne, 3 Burr. (Eng. K. B.) 1676; Inglis V. Sailors Snug Harbor, 3 Pet. (U. S ) 99; Respublica v. De Longchamps, 1 Dall. (Pa.) 111. Although the secretary of a minister is included, the wife of the secretary is not ex- empt. English V. Caballero, 3 D. & R. (Eng. K. B.) 25. EXEMPTION FROM ARREST 151 are subject to the civil or criminal processes of our courts. A foreign minister cannot waive his privilege, because it is that of his sovereign ; and an attache of a foreign legation is a "minister."* The fact that the officer did not know him to be such is no excuse for the arrest.'^ But this immunity from arrest does not prevent a citizen of our country from exercising the usual rights of self-defence when attacked by such ex- empted person.^ §257. Commercial Agents. — Consuls. — Consul- generals are exempt,' but consuls are not,^ they being mere commercial agents, owing a temporary allegiance to the State, and not diplomatic agents, who owe no allegiance to the State. § 258. Attorneys at Law. — Among others who are exempt from civil arrest only, are attorneys at law while attending court. ^ But the privilege of * U. S. V. Benner, Baldwin (U. S. C. C), 234. s Ibid. But see Chase r. Fish, 16 Me. 132. 6 U. S. V. Ortiga, 4 Wash. (U. S. C. C.) 531. " Marshall v. Critico, 9 East (Eng. K. B.), 447. Contra: Com. V. Kosloff, 5 S. & R. (Pa.) 545. * Com. V. Kosloff, supra eit. ® Secor V. Bell, 18 Johns. (N. Y.) 52. In Georgia it is held that this rule of the common law never obtained in America, owing to the essential difference in the n-lations which the profession sustains both to the courts and the public in England and this country. Elam v. Lewis, 19 Ga. 608. 152 THE LAW OF ARREST attorneys is not so much for their benefit as it is for the benefit of their clients, ^^ and is there- fore confined to attorneys who practice. ^^ § 259. Other Exemptions. — So also are bail ex- empt while attending court as such ; ^^ a petitioning bankrupt attending before commissioners to be ex- amined ;^^ insolvent debtors lawfully discharged,^* — but not when sued on subsequent liabilities or promises ;^^ clergymen while performing divine ser- vice, or going to or returning from the performance of such service on any day of the week;^*^ militia men on military duty,^" except commissioned offi- cers under certain circumstances ; ^^ electors while attending, or going to or returning from a public election ; ^^ jurors attending court j^*^ sheriffs and 10 Gardner v. Jessop, 2 Wils. (Eng. C. P.) 44 ; Mayor of Norwich ^^ Berry, 4 Burr. (Eng. K. B.) 2113; Wiltshire v. Lloyd, 3 Doug. (Eng. K. B.) 381. 11 Goldsmith v. Baynard, 2 Wils. (Eng. C. P.) 232; Mayor of Xorwich v. Berry, supra cit. 12 Rimmer v. Green, 1 Maule & S. (Eng. K. B.) 638. 13 In re Kimball, 2 Ben. (U. S.) 38. 1* Wilmarth v. Burt, 7 Mete. (Mass.) 257 ; Rev. Laws of Mass. c. 163, § 95. 15 Horton v. Moggridge, 6 Taunt. (Eng. C. P.) 563; Glazier v. Stafford, 4 Harr. (Del.) 240. 1^ Bacon's Abr. (Trespass). " Peoi^le V. Campbell, 40 N. Y. 133; In re Turner, 119 Fed. Rep. (U. S.) 231 ; Rev. Laws of Mass. c. 16, § 174. 18 Ex parte Harlan, 39 Ala. 563. 19 Swift V. Chamberlain, 3 Conn. 537. 20 Ex parte McNeil, 3 Mass. 288. EXEMPTION FROM ARREST 153 other peace officers while actually engaged in the performance of their duties, ^^ but not at other times, 22 except by statute. ^^ § 260. Government Employees. — An employee of the United States government is not exempt from arrest on process issued by a State court on a charge of felony. 24 And the driver of a wagon in which the mail is being carried is not exempt from arrest for driv- ing through a crowded street at a dangerous rate of speed, by the Act of Congress prohibiting the stop- page of the mails. 25 §261. Lsgislators. — Members of Congress, and State legislators, while attending their respective assemblies, or going to or returning from the same, are protected from arrest on all charges except trea- son, felony or " breach of the peace, " which latter term includes all indictable offences. 2'^ This protection to members of Congress, is given by the Constitution of the United States, 2" and that of the members of the State legislatures is gener- al Welby V. Beard, Taylor (Up. Can.), 415. 22 Coxson V. Doland, 2 Daly (X. Y.), 06. 28 "A sheriff shall not be arrested upon mesne process, or execution in a civil action." Rev. Laws of Mass. c. 23, §10. ^■i U. S. r. Kirby, 74 U. S. 482. 25 U. S. V. Hart, Peters (U. S. C. C), 390. 20 Rawlins v. Ellis, IG Mees. & W. (Eng. Exch.) 172. 27 Const. U. S. Art. 1, § G. 154 THE LAW OF ARREST ally secured to them by the constitutions of the various States, ^^^ or by the common law. A member of a house of representatives who has been expelled by that body is no longer entitled to the protec- tion ;29 nor is one entitled to protection who has merely been elected, but who has not yet taken his seat.^ § 262. Exemption may not always be "Waived. — Exemption from arrest is usually a personal privi- lege ^^ which may be waived by the privileged person. ^^ The privilege of a legislator, however, is not his personal privilege, but is that of the people whose representative he is, therefore the privilege cannot be waived by him. ^^ By the same line of reasoning, an attorney could not waive his privilege, for the privilege is really that of his client, whose interests would be imperiled. § 263. Writ of Protection. — A writ of protec- tion is only ^^nma facie proof of exemption from 28 Hiss V. Bartlett, 3 Gray (Mass.), 468. "No member of the house of representatives shall be arrested or held to bail on mesne process, during his going unto, returning from, or his attending the general assembly." Const. Mass. c. 1, § 3, Art. 10. '^ Hiss V. Bartlett, supra cit. 30 Chase v. Fish, 16 Me. 132. 81 Smith V, Jones, 76 Me. 138. 32 Brown v. Getchell, 11 Mass. 11. 33 Anderson v. Roundtree, 1 Finn. (Wis.) 115. But see Chase I'. Fish, supra cit. EXEMPTION FROM ARREST 155 arrest, and is of itself no further useful than as it serves to give notice to the officer about to make the arrest.^* § 264 Parties attending Court. — This writ is not necessary to one whose duty brings him to court, in order that he may be shielded from arrest in a civil case. If a juror or any other person whose duty brings him to court, whether as a party or as a witness, is arrested while attending the court, or in going to or returning from the court, the court will, upon motion, take order for his dis- charge.^^ Such arrest is a contempt of court, ^ and may subject the party making the arrest to a prose- cution for the offence. But this protection does not extend to one who comes to court, in his own State, as a volunteer, without summons.^" A voluntary witness, however, from another State is protected, ^^ although no witness in attendance at court is privi- leged from arrest when charged with an indictable ofi'ence. ^^ 81 Ex parte Daniel McXeil, 6 :\rass. 264. 35 The case of Archibald .McNeil, 3 Mass. 2S7; Ex parte Archibald IMcXeil, 6 Mass. 245; Wood v. Neale, 5 Gray (Mass.), 538 ; Thompson's Case, 122 Mass. 428. 86 Blight v. Fisher, Pet. C. C. (U. S.) 41 ; Wood V. Neale, 5 Gray (Mass.), 5:j8 ; State r. Buck, 62 X. H. 670. 8'' Ex parte Datiiel McXeil, supra cit. 88 May V. Shumway, 16 Gray (Mass.), 86. 89 Ex parte Levi, 28 Fed. Rep. (U. S.) 651. 156 THE LAW OF ARREST § 265. "Waiver of Privilege by Parties attending Court. — The immunity from arrest, enjoyed by one who is attending court as a party to a proceed- ing then pending, being a personal privilege, may be waived, as by submission to arrest ; and the arrested party cannot afterward object to the im- prisonment as for that reason unlawful.*^ But a witness from another State, arrested before he has completely given his testimony, does not waive his privilege of exemption from arrest by giving bail. *^ § 266. Persons under Guardianship. — A spend- thrift, under guardianship, is exempt from arrest on execution issued for debt or damages in a civil action, whenever the statute requires an affidavit to be made that the party sought to be arrested has been guilty of one of the fraudulent or wasteful acts specified in the statute, ^^ because the property of the debtor is not under his own control, but under that of his guardian, consequently he could not be guilty of fraud in not applying it to the debt, and he may be discharged on habeas corpus. Where no affidavit is required by the statute to warrant an arrest on an execution, it has been held that a hmatic under guardianship might be so arrested. *^ 40 Brown v. Getchell, 11 Mass. 11. *i Dickinson v. Farwell, 71 N. H. 213. 42 Blake's Case, 106 Mass. 501. 43 Ex parte Leighton, 14 Mass. 207. EXEMPTION FROM ARREST 157 § 267. OfiEcer not liable for arresting Exempted Party. — An officer who acts according to his precept in making an arrest, is not a trespasser, although the party arrested is privileged from arrest.** § 268. Exemption may include Going to and Com- ing from a Certain Place. — The exemption from ar- rest in consideration of a certain character and specified place, includes the stay, and a reasonable time for going and returning,*^ but does not include delays or deviations.*^ So where a party exempted from arrest by reason of attendance at court, went out of a direct route on his return home, for the purpose of attending the funeral of his son, it was held that his privilege was forfeited by the devia- tion.*' But where a voter at a public election had given in his vote, and retired to a house in the neighborhood to await the result of the official count of the votes, it was held that he was attend- ing to the business of the election, and therefore exempt from arrest on civil process.*^ If an elector has not actually proceeded on his way to tlie voting- place, but is merely preparing to go, he cannot claim the privilege.*^ A person who was alleged to have been elected to " Cliase V. Fish, 16 Me. 132. 45 Sniythe i-. Banks, 4 Dall. (U. S.) 329. *^ Chaffee v. Jones, 19 Pick. (Mass.) 260. *' Ibid. 48 Swift V. Chamberlain, 3 Conn. 537. « Ilobbs V. Getchell, 8 Me. Ibl. 158 THE LAW OF ARREST Congress, having been denied a seat by that body, is privileged from arrest until he reaches his home, and any delay by reason of sickness or want of funds does not remove the privilege. ^° § 269. Debtors from Another State. — Under a statute authorizing the arrest of a debtor on the ground that he is about to leave the State to avoid the payment of his debts, some courts hold that it is only a citizen of the State in which the arrest is made, and in which the debt exists, that is subject to arrest,^^ and that a citizen of another State is exempt from such arrest ; while other courts hold that the statute extends to a debtor who is a citizen of another State, but who is temporarily within the State where he owes the debt, returning or intend- ing to return home, as well. ^^ § 270. Statutory Exemptions. — Exemptions from arrest, other than those hereinbefore specified, such as women, mariners, and others in certain cases, are sometimes made by statute. ^^ 50 Dunton v. Halstead, 2 Pa. L. J. "Rep. 450. 51 Stevenson v. Smith, 28 N. H. 12 ; McKay v. Ray, 63 N. C. 46. 52 Tallemon v. Cardenas, 14 La. Ann. 509 ; Rutland Bank V. Barker, 27 Vt. 293. 53 " No woman shall be arrested on mesne process, except for tort. No person shall be arrested on mesne process in a civil action for slander or libel." Rev. Laws of Mass. c. 168, § 3. See Foss v. Ilildreth, 10 Allen (Mass.), 76, holding that a threat to make an arrest for slander is, under the stat- EXEMPTION FROM ARREST 159 When a statute names a sheriff only, as exempt from arrest under civil process, the protection does not extend to a deputy sheriff.^* ute, a threat to make an unlawful arrost. " A seaman who has shipped or entered into a contract for a voyage from a port in this Commonwealth shall not be liable to arrest on mesne process on account of a debt to a landlord or boarding house keeper." Rev. Laws of Mass. c. 66, § 4. A slieriff is exempt, by Rev. Laws of Mass. c. 23, § 10, from arrest at any time on mesne process or execution in a civil action. '54 George v. Fellows, 58 N. II. ¥Ji. 160 THE LAW OF ARREST CHAPTEE XIII FALSE IMPRISONMENT § 271. Definition. — Any unlawful restraint of a person contrary to his will,^ either with or with- out process of law, is a false imprisonment,^ and makes the restraining offender liable to the State in a criminal action, and to the imprisoned one in a civil action. § 272. Restraint must be against the Will. — The restraint must be without the consent of the im- prisoned party, and a child of tender years may not be able to give such consent as will make the im- prisonment lawful.^ § 273. Restraint must be Total. — The restraint must be a total one. Compelling a man to go in a given direction against his will may amount to an imprisonment, and if it is an entire restraint, there certainly is an imprisonment. So if an officer com- mands a person to go with him, and the orders are ^ Com. V. Nickerson, 5 Allen (Mass.), 51S. 2 Comer v. Kiiowles, 17 Kau. 436; Brewster v. People, 183 Til. 146. ^ Com. V. Nickerson, supra cit. FALSE IMPRISONMENT IGl obeyed, and they go in the direction pointed out by the officer, that is an imprisonment, though no actual violence be used, and though there is not even a touching of the person ; it is enough that there is a complete control of the person's liberty, and a submission by him. But restraining a man from going in a particular direction, at the same time leaving one direction open and free for him to go if he choose, does not constitute an imprisonment, because there is no total restraint of his freedom.* § 274. Restraint may be by Words. — In ordinary practice, words are sufficient to constitute an im- prisonment, if they impose a restraint upon the person, and the party is accordingly restrained ; for he is not obliged to incur the risk of personal vio- lence and insult by resisting until actual violence be used. This principle is reasonable in itself, and is fully sustained by the authorities. § 275. Having in Power is sufficient. — Nor does there seem that there shoulu be any very formal declaration of arrest. If the officer goes for the pur- pose of executing his warrant, has the party in his presence and power, if the party so understands it, and in consequence thereof submits, and the officer, in the execution of the warrant, takes the party be- fore a magistrate, or receives money or property in 4 Bird V. Jones, 7 Q. B. (Eng.) 742. U 162 THE LAW OF ARREST discharge of his person, it is in law an arrest, although he did not touch any part of the body.^ § 276. Touching not Necessary to complete Offence. — It is not necessary to constitute false imprison- ment that the person restrained of his liberty should be touched or actually arrested. If he is ordered to do or not to do the thing, to move or not to move against his own free will, — if it is not left to his option to go or stay where he pleases, and force is offered, or there is reasonable ground to apprehend that coercive measures will be used if he does not yield, ^ the offence is complete upon his submission. A false imprisonment may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by per- sonal violence, or both. It is not necessary that the individual be confined within a prison or within walls, or that he be assaulted or even touched.^ It may be committed by threats,^ but it is not necessary that it be a malicious act, or that the slightest wrongful intention exist. ^ § 277. Must be a Threat or Show of Force. — Proof that the defendant induced the plaintiff' to go 5 Pike r. Hanson, 9 N. II. 491. « Johnson v. Tompkins, 1 Baldwin (U. S. C. C), 571. ^ Comer v. Knowles, 17 Kan. 435. 8 Hen-ins v. State, 3 Tex. App. 108; Meyer v. State, 49 S. W. (Tex.) 600. ® Comer v. Knowles, supra cit. FALSE IMPRISONMENT 163 to another place, and there remain in concealment for a time, by threats of a criminal prosecution and misrepresentations, but without using or threat- ening to use force, is not suthcient to maintain the action. ^'^ § 278. Warrant valid in Form, from Court of General Jurisdiction, protects Officer. — As a general rule, to secure immunity from liability, the officer is bound only to see that the process wliich he is called upon to execute is in due and regular form, and issues from a court having general jurisdiction of the sub- ject. In such case he is justified in obeying his precept. And it is highly necessary to the due, prompt, and energetic execution of the commands of the law that he should be so. ^^ Therefore an officer who has an execution from a court of competent jurisdiction is not liable for arresting a defendant who shows his discharge in insolvency to the officer before he is arrested. ^^ An officer cannot stop to try the validity of such a certificate of discharge when he is about to serve a legal process, and to so hold would defeat the service. § 279. Serving Lavrful Process Improperly. — Serv- ing lawful process in an unauthorized manner con- stitutes false imprisonment.^^ ^o Payson v. Maconiber, o Allen (Mass.), 69. " McMahan v. Green, :34 Vt. 09. i'^ Wilmarth v. Burt, 7 Mete. (Mass.) 257. ^^ Wood V. Graves, li-t Mass. 3G5. 164 THE LAW OP ARREST A person who causes another to be arrested on mesne process in a civil action is liable to an action of false imprisonment, if he fails to first make an affidavit that is required by statute. ^^ If an arrest under a lawful warrant be made for the purpose of extorting money, or to unlawfully enforce the payment of a civil claim, an action of false imprisonment will lie against all who have, either directly or indirectly, participated therein. ^^ But procuring a warrant by misrepresentations does not make the party so procuring the warrant liable to an action for false imprisonment.-'^ Nor does legally enforcing the payment of a debt by means of an arrest, constitute the offence. ^'^ On an execution against a corporation, styled the president, directors, and company of a turnpike, the officer was held liable for the arrest and deten- tion of one of the proprietors ; because the party arrested was neither named nor described in the writ, the corporate name not being the name or de- scription of any natural person whomsoever, there- fore he did that which his precept did not authorize him to do, when he made the arrest. ^^ 1* Cody V. Adams, 7 Gray (Mass.), 59. ^5 Hackett v. King, 6 Allen (Mass.), 58; Vanderpool v. State, 34 Ark. 174 ; Slomer v. People, 25 111. 61 ; Neufeld r. Rodeminski, 144 111. 88. i« Coupal V. Ward, 106 Mass. 289. " Mullen V. Brown, 138 Mass. 114. 18 Nichols V. Thomas, 4 Mass. 232. FALSE IMPRISONMENT 165 § 280. Discharging Prisoner without taking before Magistrate. — To arrest a man for being drunk and disorderly, and then discharge hira without taking him before a magistrate, constitutes the offence, un- less the prisoner waived his right to be so taken, by consenting to the discharge. ^^ § 281. Subsequent Arrest for OfiFence committed in Presence of Officer. — ^Yhere an otticer arrests an in- toxicated person, while guilty of disorderly conduct, and releases him on his promise to go directly home, he may lawfully retake him, on his going into a bar- room before he is out of the officer's sight, and is not guilty of false imprisonment in so doing ; and it makes no difference whether the final restraint be considered a recaption, or a new arrest for disorderly conduct still continuing. ^o § 282. Imprisoned Party must be Conscious of Re- straint. — To constitute an imprisonment, the party imprisoned must be conscious of the restraint. ^^ So where a schoolmaster, improperly, and under a claim for money due for schooling, refused to allow the mother of an infant scholar to take her son home with her, and the son, though frequently de- manded by the mother, was kept at the school, " Brock V. Stimson, 108 iMass. 520. 20 Com. V. Hastings, 9 Mete. (Mass.) 202. 21 Herring v. Boyle, 1 Cronip. ^[. & 11. (Eng. Exch.) 377. 166 THE LAW OF ARREST there being no proof that the boy knew of the demand and denial, or that any restraint had been imposed upon him, it was held, when he brought an action for false imprisonment, that it was not maintainable. ^^ 22 Herring v. Boyle, 1 Cromp. M. & R. (Eng. Exch.) 377. TRESPASS 167 CHAPTER XIV TRESPASS § 283. Definition. — A trespass is any misfeas- ance, — that is, the doing of a lawful act in an un- lawful manner, — or act of one man whereby another is injuriously treated or damaged,^ either in his person, his property, or his rights. And a tres- passer has been defined to be one who does an un- lawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. ^ § 284. Trespass vi et Armis- — A trespass com- mitted with force, as, for example, striking another unlawfully, is said to be done vi et armis (with force and arms). § 285. Accidental Acts. — As the ground of com- pensation is the injury done, a civil action lies for an unintentional act of trespass, even if there is no malice;^ but not always for an accidental act.* 1 3 Bl. Com. 208. 2 Bouvier's Law Diet. (Trespasser). 8 Bigelow V. Stearns, 19 Johns. (X. Y.") 38. * Brown v. Kendall, G Cash. (Mass.) 1*02; Vincent r. Stinehour, 7 Vt. 62 ; Ilobart v. Ilagget, 12 Me. 67; Blewitt 1-. Phillips, 1 Q. B. (Eng.) 86. 168 THE LAW OF ARREST Such accidental act, however, will not excuse a trespass, unless the act be unintentional, unavoid- able, and without the least fault on the part of the trespasser, ^ § 286. Criminallntent Necessary to Criminal Action. — But a criminal action for trespass does not lie unless the trespass be done with a criminal intent,^ — that is, an intent to commit a crime. A criminal intent does not necessarily mean that a knowledge of wrong doing must exist, for it has been held that a mere knowledge of the facts of the case will sup- ply this intent;'^ and it is immaterial whether the person who committed the offence knew that it was in violation of the law. § 287. OflBcer not Chargeable -with Errors of Magis- trate. — An officer is never liable for the regular en- forcement of legal process which contains errors made by the issuing magistrate, provided the process is regular on its face.^ § 288. Unauthorized Entrance of OfiBcer is at his Peril. — An officer armed with civil process, who enters upon premises without invitation of the oc- cupant thereof, who has done no act to induce the olficer to reasonably believe that the party whom he ^ Jennings v. Fundeburg, 4 McCord (S. C), 161. 6 Bessey v. Olliott, T. Raym. (Eng. K. B.) 467. T U. S. V. Anthony, 11 Blatchf. (U. S. C. C.) 200. 8 Stutsman County v. Wallace, 142 U. S. 293. TRESPASS 169 seeks to serve is there, is a trespasser, if the person whom he seeks is uot a resident there, or there in fact. 9 § 289. Statutory Authority must be foUov^ed Strictly. — An officer who makes an arrest by au- thority of a statute, must follow the statute strictly, or he becomes a trespasser. As where an officer arrests an intoxicated person under authority of a statute which provides that the officer shall take the arrested person " before some justice of the peace, or police court in the city or town wherein he has been found, and shall make complaint against him for tlie crime of drunkenness," is guilty of trespass if he takes him before a justice in another town,^^ if there is a justice in the town where he is found, or if he releases him without taking him before a justice at all. ^^ And an officer is never liable for an act done under the authority of a constitutional statute ; ^^ otherwise if the statute is unconstitutional. § 290. Arrest for Intoxication. — If an officer, without a warrant, arrests a person for being in- toxicated, he does so at his peril ; that is, if the person so arrested is not in fact intoxicated, the 9 Blatt V. McBarron, 161 Mass. 21. 10 Papineau >: Bacon, 110 Mass. 319. " Brock V. Stimson, 108 Mass. 520; State v. Tarker, 75 N. C. 249. " Brown v. Beatty, 34 ^liss. 227. 170 THE LAW OF ARREST officer is guilty of trespass, for nothing but clear proof of the intoxication will justify the arrest. The fact that the arrest was made in good faith, and under a reasonable belief of the intoxication, will not excuse the trespass. ^^ And it is imma- terial how the intoxication was produced.^* But an officer is not liable criminalUj for arresting a person who is subsequently shown not to have been intoxi- cated at the time of the arrest. -^^ § 291. Liability of Party assisting an OfBcer. — There seems to be some doubt whether a private person who, at the command of an officer, assists him in making an arrest, is guilty of trespass, if the process in the hands of the officer is not regular and valid. The cases which hold that the private per- son called upon under such circumstances is not liable, seem to be founded upon the better reasoning. It is certainly neither law nor accurate reason- ing to assume that a person upon whom the per- formance of a duty is thrown by law, as it is when a known officer commands assistance in making an arrest, and who is subject to a criminal prosecution if he does not obey the command of the law,^^ is 13 Phillips V. Fadden, 125 Mass. 198. 1* Com. V. Coughliii, 123 Mass. 436. 15 Com. V. Cheney, 141 Mass. 102. But see State v. Hunter, 106 N. C. 796. i« Coyles V. Hurtiu, 10 Johns. (N. Y.) 84; Watson v. State, 83 Ala. 60; Dougherty v. State, 106 Ala. 63; T^Ic- Mahan v. Green, 34 Vt. 69 ; Pruitt v. Miller, 3 lud. 16; Fire- stone v. Rice, 71 Mich. 377. TRESPASS 171 not fully protected by the law in the performance of that duty. A fair statement of the law applicable in such cases would seem to be, that one who, at the command of an officer, assists him in the execu- tion of legal process, is fully protected, although the process is not regular and valid ; but if he acts of his own volition, he must show that the process is valid, in order to justify his act.^" But where the original act of the officer is wrong- ful in itself, as it would be if the officer, without a warrant, were to arrest one for a past misdemeanor, any stranger who aids him in it will be liable to the party injured, although he acts by the officer's command. § 292. Bystander may be justified in not Respond- ing. — A bystander is nt)t obliged to respond to an officer's command of assistance unless there is a reasonable necessity. He may also set up physical impossibility or other lawful excuse in defence. ^'^ " Reed v. Rice, 2 J. J. Marshall (Ky.), 44; State v. Stal- cup, 1 Ired. (N. C.) 30 ; McMahau v. Green, 34 Vt. 69 ; Fire- stone V. Rice, 71 Mich. 377 ; Watson v. State, 83 Ala. 60. Contra: Elder v. ]\Iorrison, 10 Wend. (N. Y.) 128; Hooker V. Smith, 19 Vt. 151 ; Mitcliell v. State, 12 -Vrk. 50; Dietriclis V. Schaw, 43 Ind, 175. See also Dehm c, llinman, 56 Conn. 320. 1* Reg. V. Brown, Car. & M. 314 ; State v. Deniston, G Blackf. (Ind.) 277. 172 THE LAW OF ARREST § 293. Unlawful Arrest ordered by Third Party. ■ — An unlawful arrest ordered by a third person makes such person liable in damages. ^^ Trespass ab Initio. § 294. Arises from Abuse of Legal Authority. — An officer who in serving civil process, or making a civil arrest, does any act which he has no right to do, or does an act in an unlawful manner which he might be justified in doing if he did it in a lawful manner, becomes thereby a trespasser ab initio (from the beginning) ; that is, every act in connection with the service of the process which was lawful when done, by doing that single unlawful act, becomes thereby unlawful. ^^ But the officer's assistant is not affected by a subsequent abuse of process. ^^ The entry must be by authority of law, or the officer cannot become a trespasser ah initio. The subsequent act, however, will not make the officer a trespasser ah initio, unless it shows a purpose to use his legal entry as the cover for the wrong- ful act, or unless the subsequent wrongful act is in itself a trespass. 22 19 King V. Ward, 77 111. 603; Taafe v. Slevin, 11 Mo. App. 507. 20 Cora. V. Tobin, 108 Mass. 426. 21 Oystead v. Shed, 12 Mass. 505; Wheel ock v. Archer, 26 Vt. 380". 22 Shorland v. Govett, 5 B. & C. (Eiig. K. B.) 485. TRESPASS 173 § 295. Application of the Doctrine. — The doc- trine of trespass ah initio does not apply to crim- inal cases. '"^^ Nor does it apply when the entrj' is by permission of the party, as where an officer enters, not by authority of law, but by permission of the party, and then wrongfully takes possession of certain papers ; there the original entry was not a trespass. -* 23 Com. V. Tobin, 108 Mass. 426. 2* Allen V. Crofutt, 5 Wend. (N. Y.) 506. INDEX [References are to sections. ] A. AFFIDAVIT, is necessary to civil arrest, 107. what must be stated m the, 107 new, is necessary if writ is altered, 108. failure to make may be cause of action, 279. ALTERING WARRANT, effect of, 108. may be done only by issuing magistrate, 48. AMBASSADORS (See Minister, Consuls), or attendants cannot be arrested. 256. ARREST (Sf-e Officer, Prisoner, Warrant, Process, Restraint, Sunday, False I.mprisonment, Tres- pass), what constitutes, 65. requisites of legal, 66. made in four ways, 20. officer must make known his authority to, 78. authority to, may be known by circumstances, 85. by known officer is notice of authority, 81. authority and duty to, are coincident, 183. constructive notice of authority to, 85. under general autliority, 146. want of authority to, will not protect prisoner from pros- ecution, 14, 15. may not be made on Sunday in civil case, 47, 76. for vagrancy, 142. for conspiracy may be on Sunday, 261. on criminal charge may be at any time, 76. 176 INDEX [References are to sections.] ARREST ~ Cotithmed. in criminal case may be made anywhere, 77. importance of consummation of the arrest, 68. may be by words alone, 66, 73. touching may be necessary to, 69, 73. consummated by touching, though accused flee, 74. restraint always necessary to, 73. taking into custody necessary to, 71, 73. force in making, 183, 185-188. killing in making, 86, 92, 144, 145, 183, 184, 187-189. in wanton and menacing manner, 86. right to kill when fleeing from, 144, 145, 189. without warrant, 112 et seq. without warrant when one is required, 6. for violation of city ordinances, 131. without warrant for breach of peace must be immediate, 141, 142. for breach of peace, 76, 116. by private person for breach of peace, 116. by officer for breach of peace, 129. while committing breach of the peace, 116, 141, 142, in case of misdemeanor, by private person, 116. in case of felony, by private person, 112, 155. bail may arrest principal without warrant anywhere, 148. with warrant is preferable, 20. with warrant, 90 et seq. cannot be of party not named or described in warrant, 90, 279. may be an old warrant not returned, 35. under lawful warrant for improper purpose, 279. mere reading warrant is not sufficient to constitute, 67. officer may be acting in, though at distance, 75. by officer outside of jurisdiction, 135. within house by officer outside, 158. may be by officer's assistant, 75. duty to submit to illegal, by known officer, 92. may be by excepting alternative, 72. INDEX 177 [References are to sections.] ARREST — Contmued. ill night, 76. in different county, 49. on reasonable suspicion, 129. for contempt of court, 64. for contempt of legislative body, 63. to prevent crime, 149. for fraud, 137. in civil cases, 103-111. statute authorizing civil, 104. officer's duty after making, 87. exemption from, 256 et seq. ASSISTANCE, private person may be entitled to, 113. criminal offence to refuse officer, 291. defences to charge of refusing officer, 292. ASSISTANT, arrest may be by, 75. of officer may be liable, 95. AUTHORITY (See Notice), notice of, to arrest, 78, 81. to arrest may be known by circumstances, 85. officer must make known, to arrest, 78. constructive notice of, to arrest, 85. arrest under general, 146. and duty to arrest are coincident, 183. in writing bail may delegate, to arrest, 148. burden of proof to show, to arrest, 235. B. BAIL, excessive, shall not be required, 5. one under, in extradition has no opportunity to leave State, 220. in writing may delegate authority to arrest principal. 148. may arrest principal without warrant anywhere, 148. may break doors to arrest principal, 148. 12 178 INDEX [References are to sections.] BEXCn WARRANT, what is a, 26. purpose of the term, 26. BILL OF RIGHTS, American, 6. English, 5. BREACH OF THE PEACE, what is, 117. essence of the offence, 119. includes all indictable offences, 261. arrest for, 76, 116. arrest while committing, 116, 141, 142. arrest for, without warrant, must be immediate, 141, 142. arrest by private person for, 116. arrest by officer foi", 129. entering unfastened door to arrest for, 138. entering fastened door to arrest for, 139. inciting others to break the peace is a, 118. calling names opprobriously may be, 118, 125. no defence to charge of, that opprobrious words are true, 119. abating nuisance in unlawful manner is, 120. loud and violent abusive language is a, 121. wanton discharge of a firearm may be, 122. doing lawful act in a turbulent manner is a, 120. threatening officer may be a, 121. disturbance of public worship is a, 123. soliciting by a prostitute is a, 124. reckless driving is a, 126. profane swearing may be a, 127. shouting in streets at night may be a, 126. pubHc and disorderly drunkenness may be a, 127. to constitute, must disturb an indefinite number of per- sons, 125. BREAKING (See Dook, House), what is a, 172. injury of material not necessary to a, 173. INDEX 179 [References are to sections.] BllEAKIXG — Continued. removing anything relied on as security, is a, 173, ISO. when justifiable, 144, 145, 147, 152 et seq. breaking doors, 175. breaking windows, 176. by making or entering other openings, 177. enlai'ging opening by actual, 178. by removing iron grating over sidewalk, 180. entrance under deception may be, 181. taking advantage of negligence of occupant is not, 174, 177. right of private person to break, 155. bail may break to arrest principal, 148. not, to open inner doors, 1G2. unannounced entrance to make original arrest is au unjustifiable, 159. notification, demand, and refusal necessary before, 153, 159. need not always give name of party sought before, 154. to prevent escape, 157. effect of arrest by unlawful, 182. BURDEX OF PROOF (.See Evidence), is with the prosecution, 229. never shifts from the prosecution, 229-231. as to new and distinct proposition, 130, 131. in showing license to sell, 236. respecting criminal capacity of children, 249. in insanity, 237. as to voluntary character of confession, 245. when charge is use of excessive force, 233. on officer to show offence committed in presence, 234. to show authority to arrest, 235. c. CHARACTER, good, always admissible, 240. bad, may be admissible, 238. 180 INDEX [References are to sections.] CHARACTER— Con/awefZ. evidence must be of general repute, 239. how proven, 241. at present time is of most importance, 241. evidence must be of particular trait in question, 239. CHILDREN, under seven years cannot commit crime, 249. between seven and fourteen years may be unable to commit crime, 249. CLUB, officer's riglit to use, 191, 192. may use, if necessary to stop fight, 191. may not use, if prisoner merely holds back, 191. unjustified assault v^ith, 193. COMPLAIXT {See Oath, Affidavit), required by constitution, 23. who may make, 53. need not be in writing except by statute, 54. if insufficient may render officer liable, 33. COMPLAINING PARTY, may be a trespasser if magistrate has no jurisdiction, 16. CONFESSION, is admissible if voluntary, 245. must be made to whom, 244, 245. must go in entire, 246. by intoxicated person, 244. is open to explanation, 246. although not admissible, collateral information may be, 247. CONFINING PRISONER, in State penitentiary, 100. in unhealthful place, 100. freight car may be used for, 100. length of time in, 195. force may be used in, 198. CONSTITUTIONAL PROVISIONS, respecting search warrants, 23. INDFX 181 [References are to sections.] CONSTITUTIONAL PROVISIONS — Con^/«»f./. do not apply to searches by State autliorities, 23. respecting description of arrested party, 41. prohibit physical exaniination by compulsion, 203. respecting rendition, 222. respecting " due process of law," 6. respecting jury trials, 6, 7. respecting arrest for debt, 103. respecting probable cause and oath, 52, 57. CONSTITUTIONAL RIGHT, to jury trial cannot be waived, 7. CONSUL GENERALS, are exempt from arrest, 257. CONSULS, are not exempt from arrest, 257. CONTEMPT, arrest for contempt of court, 64. arrest of party or witness at court is a contempt, 264. arrest for contempt of legislative body, 63. COURT, arrest in, 77, 264. CRIMINAL INTENT, what is a, 2.S6. is necessary to a crime, 248. and criminal act must concur, 248. CUSTODY, taking into, necessary to arrest, 71, 73. D. DEBTOR arrest of, about to leave State, 105. affidavit necessary to arrest of, 107, 270. intent to deiraud necessary to arrest of, 106. may be exempt from arrest, 2G!>. effect of altering writ for arrest of, 108. no arrest of, after attachment of property, 109. filing petition in insolvency after arrest, 111. 182 INDEX [References are to sections.] DELAY, ill making an arrest for a breach of the peace, 141, 142. in taking prisoner before a magistrate, 96, 195. DESERTERS (See Military Law). DOOR (See Breaking, House), breaking, 175. breaking in pursuit of felon, 144. right of private person to break, 155. bail may break to arrest principal, 148. military officer may not break to arrest deserter, 147. entering unfastened, to arrest for breach of peace, 138. entering fastened to arrest for breach of the peace, 139. mere protective, is not legal outer door, 179. inner, may be legal outer door, 162, 163. inner, may be broken on any process, 162. DOUBT, always goes to benefit of the accused, 231, 254. DRUNKENNESS (See Intoxication), may be a breach of the peace, 127. will excuse delay in taking before a magistrate, 96. may be a defence to a criminal charge, 243. DUE PROCESS OF LAW, what is, 6. constitutional provisions respecting, 6. DWELLING HOUSE (See House), what is a, 164. to constitute, must be used for sleeping purposes, 170. use of, determines character, 165. use of portion as, 106. combined place of business and, 169. may be several, in same building, 167. public building may be a, 168. must be occupied for purpose of, 165. effect of absence on character of, 171. DYING DECLARATIONS, why admissible, 250. may be oral, written, or by signs, 250. INDEX 183 [References are to sections.] DYIXr; DECLAIIATIOXS— Co«//nuer/. party making, must expect immediate death, 251. must be made by one who, if living, would be competent, 2r)2. young child cannot make, 252. E. ELECTION, one going to or returning from, is exempt from civil arrest, 208. one merely preparing to go to, is not exempt, 268. ENDORSING WARRANT, to arrest in another county, id. ESCAPE, ■what is, 88. may be a felony or misdemeanor, 89. accused may be re-taken on same warrant, or without warrant, 89. officer is responsible for, 89, 191. on void warrant there cannot be, 89. cannot be uidess arrest is consummated, 68. innocence or guilt of party escaping is not material, 89. use of force in preventing, 187, 188, 194. in pursuit for, unannounced entrance into house is jus- tifiable, 160. breaking into house to prevent, 157. anything may be taken from prisoner that may be used in, 200. ESTOPPEL, doctriiie of, does not apply to criminal cases, 246. EVIDENCE (See Bukukx of Pkoof, Confessions, Charactkr, Dying Declarations), conduct as, of guilt, 242. of character, 2:38-241. preponderance is not sufficient, 228. must not be obtained by compulsory physical examina- tion, 203. 184 INDEX [References are to sections.] EVIDENCE — Continuecl. l^risoner's silence weighed against him, 242. destroying evidence, 242. destroying marks of ownership, 242. of use of threats, 242. of taking to flight, 242. disguise, 242. concealment, 242. possession of stolen goods as, 242a. presumption of innocence is not, 232, 236. degree of, to warrant holding in extradition, 211. collateral, obtained by confession is admissible, 247 obtained by illegal seizure is competent, 24a. best, only is competent, 253. hearsay evidence not admissible, 253. EXEMPTION FROM ARREST, in general, 256 et seq. ambassadors are, 256. sovereign of friendly foreign nation is, 256. any diplomatic agent of friendly foreign nation is, 256. Consul Generals are, 257. consuls are not, 257. attorneys at law are, 258. persons under guardianship, 266. bail are, 259. bankrupts are, and insolvents may be, 259. clergymen, 259. militia men, 259. electors, 259. jurors, 259. sheriffs and other peace officers, 259, 270. employee of the United States may not he, 260. driver of mail wagon may not be, 260. members of Congress, 261. extends to one denied seat, 268. State legislators, 261. does not extend to expelled or merely elected member, 261. INDEX 185 [References are to sections.] EXEMPTION FROM ARREST — Continued. witnesses and parties to suits, 264. may usually be waived, 262. may not be waived by attorney or legislator, 262. may be waived by a party to a court proceeding, 265. voluntary witness is not exempt, 264. officer is not liable for arresting exempt party, 267. includes going to and returning from certain places, 268. by statute, 269, 270. EXTRADITION (See Rendition), and rendition distinguished, 204. definition of, 205. who may issue warrant in, 207, 208. usual method of procedure in, 215. sanction of demand necessary to give jurisdiction, 214. is matter of treaty or comity, 206, 216, 226. no comity on part of United States, 217. is obligatory between States of the United States, 226. requisites of warrant in, 209. degree of evidence to warrant holding in, 211. negotiations in, must be by highest executive officers, 214. guilt or innocence not inquired into on habeas corpus in, 213. re-arrest after discharge on habeas corpus in, 210. re-arrest after discharge on merits, 218. taking before a magistrate in, 211. for what crimes a fugitive may be tried in, 218, 219. kidnapped fugitive may be tried for any offence, 219. F. FACT, ignorance of, may excuse, 32. FALSE IMPRISONMENT (See Arrest, Trespass), definition of, 271. may be by mere words, 273, 274, 276. 186 INDEX [References are to sections.] FALSE IMPRTSOXMENT— Con^mwerf. must be against will, 272. to constitute, there must be a total restraint, 273. none unless party is conscious of restraint, 275, 282. touching of person not necessary to, 273-276. there must be at least a threat or show of force, 277. may be by serving process improperly, 279. FELONY (See Arrest, Officer, Private Person), what is a, 115. escape may be a, 89. arrest for, may be made on Sunday, 47, 76. killing to prevent, 128, 144. right of private person to arrest for, 112, 155. right of officer to arrest for, 129. may kill if necessary in arresting for, 144, 145. FOPtCE (.Sef? Killing, Club), use of, in making an arrest, 183, 185-188. officer is liable for excessive, 190. may be used in confining prisoner, 198. may be used in searching prisoner, 201. use of, to prevent escape, 187, 188, 194. burden of proof in charge of use of excessive, 233. FRESH PURSUIT (See Killing, Breaking, Door), may justify private person in breaking doors, 145, 155. on, pursuer may kill if necessary to prevent escape, 145. FUGITIVE FROM JUSTICE, who is a, 227. G. GOVERXMENT, limit of right to control, 9. H. HABEAS CORPUS, history of, 4. guilt or innocence not inquired into on, 213. re-arrest after discharge under writ of, 210. INDEX 187 [References are to sections.] HANDCUFFS, when use of, is justifiable, 19i, 198. right to use, depends on circumstances, 194, 108. right to use, on party arrested in a civil suit, 198. must not be used to join convicted to unconvicted person, 194. use of, rests with discretion of ofBcer, 194, 198. may be used when a rescue is expected, 194. HOUSE (See Breaking, Door, Dwelling House), is castle, 151. cannot usually be broken to serve civil process, 152. may be broken to serve criminal process, 152. to whom the protection of, is extended, 150. HUE AXD cry, ■what is, 1.50. arrest under, is justifiable though no felony committed, 114. IGXORAXCE OF THE LAW, is usually no excuse, 31, 255. if reLjarding ownership, may excuse larceny, 255. IMPOSSIBILITY, may excuse oflBcer from obeying command of law, 99. INFANT, under seven cannot commit crime, 249. between seven and fourteen prima facie incapable of crime, 249. INNOCENCE, presumption of, 232, 23G. piesumption has no weight as evidence, 232. effect of presumption, 232. when presumption disappears from case, 232. INTERFERENCE (See Resisting), by third persons may be lawful, 94. officer may not club one who merely interferes, 192. 188 INDEX [References are to sections.] INTOXICATION (See Drunkenness), may be a defence, 243. immaterial how produced, 290. officer arrests for, at his peril, 290. destroys admissibility of confession, 244. will not justify searching the prisoner, 202. ■will excuse delay in taking prisoner before magistrate, 96. J. JURISDICTION {See Magistrate, Process, Warrant), lack of, if of person, may not invalidate process, 16. no immunity because of enticing into, 14. obtained by illegal arrest, or kidnapping, 14, 15. over foreign vessels, 18. over ceded territory, 19. statute giving, implies power to apprehend, 59. officer must know that magistrate has general, 29. if magistrate has none, process is wholly void, 16. in absence of, all parties are trespassers, 16. JURY, public trial by, is necessary in certain cases, 6. trial by, cannot be waived, 7. K. KILLING (See Force, Felony), when justifiable in making arrest, 144, 145, 183. Blackstone's rule regarding, in making arrest, 184. if necessary to arrest in felony, 144, 145. to prevent escape in felony, 187. to prevent escape in misdemeanor, 188. to prevent felony, 128, 144. in resisting arrest, 86, 92. when fleeing from arrest, 144, 145, 189. INDEX 189 [References are to sections.] L. LIFE (See Killing, Force), taking of, in arresting, 86, 92, 128, 141, 145, 183, 187- 189. M. MAGISTRATE (See Pkocess, Warrant), must follow law in issuing process, 11. cannot justify under authority of an unconstitutional statute, 16. must have general jurisdiction of subject matter, 16, 29. effect of lack of jurisdiction in, 16. issuing, need not have trial jurisdiction, 28. may be trespasser for acting without authority, 16. officer is not chargeable with errors of, 287. officer should take prisoner before, 96, 102. may delay in taking prisoner before, for cause, 96. drunkenness will excuse delay in taking before, 96. prisoner may waive his right to be taken before, 102, 280. issuing warrant only may alter it, 48. MAGNA CIIARTA, secured right of personal liberty, 3. is written evidence of right of personal liberty, 3. MANDAMUS, may lie to compel justice to take action, 51. MILITARY LAW, offender against, must not be arrested without warrant* 147. military officer may not break outer door to arre.st deserter, 147. MINISTER (See Amhassador), foreign, cannot bo arrested, 256. legation attache is a, 256. foreign, cannot waive privilege of exemption, 256. citizen may exercise right of self-defence against for- eign, 256. 190 INDEX [References are to sections. ] MISDEMEANOR, arrest for, by private person, 116. escape may be, 89. MISTAKE, if clerical, may not render officer liable, 33. N. NAME, of party or description is necessary in warrant, 89, 45, 279. use of fictitious, in warrant, 40. party known by several names, 43. NECESSITY, as excuse for acting or not acting, 101. what is " reasonable necessity," 101. NIGHT, arrest may be in, 76. NOTICE (See Authority), of authority to arrest, 78, 81-85. need not be given to outsiders, 84. 0. OATH (See Complaint, Affidavit), is necessary to issue of a warrant, 56, 57, 107, 279. that oath was made must appear on face of warrant, 93. OFFICER (See Arrest, Process, Warrant, Club), may be trespasser for lack of jurisdiction in issuing magistrate, 16. cannot justify act under unconstitutional statute, 16. how far protected by warrant valid upon its face, 30. is protected by valid warrant, 91, 278. must serve void warrant, if valid on its face, 33. warrant no protection to, if invalid on its face, 92. is protected in serving void warrant, if defect is not on face, 33. is charged with two duties to secure immunity, 29. INDEX 191 [References are to sections.] OFFICER - Continued. may be liable if complaint is not sufRcient, 33. not liable for arresting exempted person, 267. not chargeable with errors of issuing magistrate, 287. may deputize another to .serve as a.ssistant, 62. may be considered as acting in arrest though at dis- tance, 75. assistant of, may be liable if officer is, 95. may command assistance, 110. iimst have warrant with him when arresthig, 46. assistant of, may make arrest, 75. liability of party assisting, 291. bystander may refuse assistance to, 292. may sometimes arrest outside of jurisdiction, 135. finding impossible to perform is excused, 99. when justified in using own judgment, 101. must exhibit authority, if demanded, 82. need not imperil warrant, 79. duty of, after making arrest, 87, 195. must rely on name alone in warrant, 40. one not a known, must show his warrant, 82. effect of failure to exhibit authority, 80. duty to submit to illegal arrest by known, 92. right of, to arrest for felony, 129. may arrest on reasonable suspicion of felony, 129. once lawfully in house may re-enter forcibly, 161. may arrest without warrant, 129. unauthorized entrance of, at his peril, 288. arrest within house by, outside, 158. is liable for u.se of excessive force, 190. right of, to use club, 191. may not u.se club on one who merely interferes, 192. unlawful act of, deprives him of protection of law, 193. demanding number of, 192. responsibility for escape, 89, 19-1. arrests for intoxication at his peril, 290. not liable for clerical mistake, 33. may be exempt from arrest, 259, 270. 192 INDEX [References are to sections.] OFFICER— Continued. threatening, may be a breach of the peace, 121. right of, to detain prisoner, 98. right of, to release prisoner, 97, 197, 280, 281. when custody of prisoner ceases, 197. PERSONAL LIBERTY, right of, 1. demands restraint, 8. was secured by Magna Charta, 3. was strengthened by subsequent acts, 4. is a natui-al right, 2. no one to be deprived of, without due process of law, 6. PETITION OF RIGHT, provision of, 4. PLACE OF ARREST, may be anywhere on a criminal charge, 77. POSSESSION, of stolen goods as evidence, 242a. PRESENCE, what is, 134. burden is on officer to show, 234. by special authority may arrest for offence not com- mitted in, 132. PRISONER, is not entitled to immunity because enticed into juris- diction, 14. officer has no right to roughly use the, 186. must not be forced to a physical examination, 203. right to search, 200. mere intoxication will not justify searching, 202, force may be used in confining, 198. must be confined in a suitable place, 100. disposing of, 9(J. may be searched at time of arrest, 202. INDEX 193 [References are to sections.] FRISO^EU— Continued . inciting, to resist, 192. right to take, through streets naked, 199. taking before magistrate, 96, 19.5. may waive right to be taken before magistrate, 102, 197, 280. may be released by officer without taking before a magis- trate. 97, 102, 197, 280. incapacity of, relieves officer from taking before magis- trate at once, 96. may be killed if necessary to prevent escape, 187. may shoot officer in self defence, 86. unconvicted must not be shackled to convicted prisoner, 194. must be particularly described on face of warrant, 93. finding guilty of lesser offence than that charged, 17. want of authority for arrest will not protect from prose- cution, 14, 15. PRIVATE PERSOX (See Arrest), arrest by, in felony, 112, 155. arrest by, in misdemeanor, 116. arrest by, for felony must not be from hearsay informa- tion, 112. generally obliged to go to officer's assistance, 291, 292. may arrest only when felony has actually been com- mitted, 112. warrant may be directed to, if necessary, 60. may be entitled to assistance, llo. may arrest without warrant, 112, 116. may use force, 128. may kill felon if necessary to prevent escape, 145. may break doors on fresh pursuit, 145, 155. PROBABLE CAUSE, necessary to issue of warrant, 56. PROCESS (See Warrant), what is, 12. essentials of, to protect officer, 29, 30. magistrate must follow law in issuing, 11. 1^ 194 INDEX [References are to sections.] PROCESS — Continued. is void if magistrate has no jurisdiction, 16. serving improperly may be false imprisonment, 279. authority to serve may not be delegated by a deputy, 62. PROSTITUTE, soliciting by, is breach of the peace, 124. officer has no right to arrest on common reputation of, 124. charging one with being, is not a breach of the peace, 125. PROTECTION, , writ of, is only prima facie proof of exemption, 263. E. READING WARRANT, to prisoner may be necessary, 78. RENDITION {See Extradition), what is inter-state, 222. can only be for crime, 22.5. difference between rendition and extradition, 204. fugitive may be arrested before proceedings are begun in, 223. fugitive may be tried for any crime, 220. preliminaries to starting proceedings in, 224. jurisdiction in, procured by stratagem, 221. will not lie for bastardy, 225. will not be ordered for trivial offences, 222. one under bail in, may not be re-arrested, 220. duty to surrender in, is obligatory, 226. who is fugitive from justice in, 227. RESCUE, return of, 36. RESISTING {See Interference), illegal aiTest, 86. right to kill one resisting legal arrest, 86, 92, 185, 190. person resisting is not entitled to see warrant, 78. INDEX 195 [References are to sections.] RESTRAINT, is necessary to secure personal liberty, 8. of person is necessary to arrest, 73. RETURN, of warrant is necessary to its validity, 34. without return officer is not protected, 3i. may be amended by officer with permission of court, 36. effect of return as against officer, 3G. effect of return as against parties, 36. of rescue, 36. ROUGHNESS (See Fokck), when not necessary is unjustifiable, 186. S. SEAL, is not necessary to warrant at common law, 50. is necessary on warrant only when statute requires it, 45, 50, 93. SEARCHING PRISONER, right to search prisoner, "200. may be at time of arrest, 202. removing clothing in, 200. no right to remove ordinary money and valuables in, 200. SEARCH WARRANT, definition of, 21. how issued, 22. may be issued to search a person, 22. permission will justify searching w-itliout a warrant, 21. illegal .seizure under, does not destroy admissibility of evidence obtained thereby, 24a. issues to recover what, 22, 25. provisions of United States Constitution, relating to, 23- United States Constitution, does not apply to searches made by State authorities, 23. STATUTE, abrogates common law, 13. authorizing civil arrest, 10 1. 196 INDEX [References are to sections.] STATUTE — Continued. giving jurisdiction implies power to arrest, 59. if unconstitutional, cannot give jurisdiction, 16, 289. generally regulates search warrants, 25. may authorize general arrest without warrant, 38. in absence of, warrant may issue on Sunday, 47. wan-ant is valid only in issuing county in absence of, 49. usually provides who may issue warrants, 55. authority given by, must be followed strictly, 289. unless required by, complaint need not be in writing, 51. must not be construed so as to multiply felonies, 115. may require seal on warrant, 50, 93. exemptions existing by statute, 269, 270. STOLEN GOODS, possession of, as evidence, 242a. SUBSCRIBED, means written beneath, 58. SUNDAY, warrants may issue on, 47. no civil arrest can be made on, 47, 76. arrest for conspiracy may be on, 261. arrest for felony may be on, 47, 76. SUSPICION, arrest on reasonable, 73, 129. T. TERRITORY, jurisdiction over ceded, 19. THREATS, evidence of, 242. may justify arrest, 121. TRESPASS {See False Imprisonmext, Arrest), what is, 283. trespass " vi et armis,'''' 284. will lie for an unintentional act, 285 will not lie for an accidental act, 285. criminal action will lie only when criminal intent exists, 286. INDEX 197 [References are to sections.] TRESPASS — Continued. trespass " ab inilio,'^ 294, 295. ab initio does not apply to criminal cases, 295. in entry by permission of party, 295. TRESPASSER, who is a, 283, U. UNIFORM, is notice that wearer is an officer, 81. V. VAGRANCY, arrest for, 142. VESSELS, jurisdiction over foreign, 18. W. WAIVER, prisoner may waive right to be taken before magistrate, 102, 197, 280. WARRANT (See Process, Arrest, Officer), search warrant, 21, 55. bench warrant, 2(3. of arrest, 27. life of, 35. requisites of a, valid, 45, 93. requisites of, in extradition, 209. who may apply for, 53. who may issue, 55. must not be issued without complaint, 52, 56. who may is.sue in extradition, 207, 208. will not protect officer unless issued to him, 44. must not be i.^sued in blank. 37. in issuing, law must be followed strictly, 11. arrest with, 90 el seq. arrest with is preferable, 20. 198 INDEX [References are to sections.] ^VAnRA.^NT— Continued. officer need not imperil, 79. need not be shown unless demanded, 82. officer need not part with possession of, 79. when officer is not obliged to show, 78, 79. when person arrested is entitled to see, 78. must be in possession of officer at time of arrest, 46. when void, 37, 38, 56, 93. what it must show, 45. must command arrest, 45. to whom it should be directed, 60, 61. may be directed to a private person, 60. may be directed to officer by name or description of office, 61. mere reading will not constitute arrest, 67. must name or describe party to be arrested, 90, 279. actual notice of authority obviates necessity of reading 83. will justify arrest of one named only, 93. if not valid, officer is a trespasser, 92. when protection to, 29, 91. arrest on lawful for unlawful purpose, 279. need not state when prisoner is to be brought before magistrate, 96. will not pi'otect officer unless magistrate has general jurisdiction, 30. arrest may be on old warrant not returned, 35. escaped prisoner may be taken on same or without any warrant, 89. endorsing warrant to arrest in another county, 49. can be no escape on void, 89. may be altered only by issuing magistrate, 48. may be issued on Sunday, except, 47. remains in force until returned, 35. to arrest fugitive in another State, 214. general warrants are void, 38, 41. arrest without, 112 et seq. ;??. $0 © ^„_.._ "t:^ ^.r^*- ;:f ^-^ ^TiiJDNVSOl^ %a3MNfl3Wv -^HIBRARYQ/: -^HIBRARYq^ "^(tfOJIWDJO^ ^.tfOdnV3JO>^ ^.>i 55 > >;,OFCALIFO%. 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