peace, must be brought before the magistrate who issued the warrant; or, if he be absent or unable to attend, before any other magistrate of the same county; and the warrant, with a proper return thereon, signed by the person who made the arrest, must be delivered to the magistrate.1

Of commanding assistance. If any person, being required in the name of the State, by any sheriff, deputy sheriff, coroner or constable, shall neglect or refuse to assist any of them in the execution of their office, in any criminal case, or in the preservation of the peace, or the apprehending and securing any person for a breach of the peace, or in any escape or rescue of persons arrested on civil process, he shall be punished by imprisonment in the county jail, not more than thirty days, or by fine not exceeding fifty dollars."

If any justice of the peace, upon view of any breach of the peace, or any other offence proper for his cognizance, shall require any person to apprehend and bring before him the offender therein, the person who shall refuse or neglect to obey, shall be punished as above pro

vided."

A verbal request for assistance is sufficient, and the aid or assistant, acting under such request, would be under the same protection of the law as the sheriff himself."

Neither is it necessary that the officer should be in sight at the time an arrest is made by his aid; provided, it be believed they were both pursuing one business or object; and an arrest by the aid or assistant under such circumstances would be to all intents and purposes as valid, as if the same had been made by the sheriff personally."

The officer making the arrest should bring the prisoner before the magistrate as soon as may be reasonably and conveniently done. If he is guilty, he should be put in a situation to meet the reward for his offences without delay; and if innocent, he is entitled to be discharged, without being unreasonably detained on an unjust charge.

But if the time be unseasonable, as at or near the night, whereby he cannot attend the justice, or if there be danger of a rescue, or the party be ill, and unable at present to be brought, he may, as the case

shall require, secure and detain him till the next day, or until it may be reasonable to bring him.'

When an arrest has been made without warrant, the officer may, in some instances, take the party's word for his appearance before the magistrate; and in practice, where the charge is of a trifling nature, and the defendant is of good repute, officers take upon themselves the responsibility of so doing."

If an officer, having arrested a party under a warrant, suffer him to go at large, under a promise to surrender himself and find sureties, the better opinion is that he can afterwards arrest him on the same process.3

And it is clear that, where the prisoner has escaped from the officer, without any consent on his part, the officer is justified in retaking him."

This right of retaking also extends to the case where the person arrested is rescued. And in both, the justice may also grant a fresh warrant, reciting the former proceedings, the escape or rescue, and directing the apprehension of the offender."

A rescue signifies a forcible setting at liberty, against law, of a person duly arrested. It is necessary that the rescuer should have knowledge that the person whom he sets at liberty has been apprehended for a criminal offence, if he be in the custody of a private person; but if he be under the care of an officer, then he is to take notice of it at his peril.

If any person shall convey into jail, or other place of confinement, any disguise, instrument, arms, or other thing, proper or useful to aid any prisoner in making his escape, and with intent to facilitate the escape of any prisoner, there lawfully detained for any criminal offence, whether such escape be effected or attempted, or not; or shall, by any means, aid or assist any such prisoner to escape, whether such escape be effected or not; or shall forcibly rescue any prisoner, held in custody for any criminal offence, he shall be punished, when such prisoner was imprisoned or in custody for any felony, by imprisonment in the State prison not more than seven years; and when such prisoner was imprisoned or in custody for any offence, not a felony, by imprisonment in

the county jail, not more than one year, or by fine not exceeding five hundred dollars.1

When the party accused is already in custody on a civil action, he may be there charged criminally, by leaving with the jailer, or officer in whose custody he may be, the warrant from the justice.

The officer, on the termination of the civil imprisonment, takes the party before the justice of the peace, by whom he is examined, discharged, bailed or committed, as on an original accusation.2

When the party is already in jail on a criminal charge, and fully committed for trial, the examination may be had at the jail, or at some convenient place near thereto, where the party may be present with the jailer. And it should in no event be conducted in the absence of the party, as he has the right, in a matter affecting his liberty, to be personally present at the hearing and examination."

Search warrants. In the service of these, as of all other warrants, the officer will be protected in all legal acts under a warrant proper upon its face, though it may have been illegally issued.*

But he will look well to it that it contains a particular description of the property to be searched for, and the place to be searched, as else the precept will not avail him in defence of a suit against him for acts committed under it."

In the execution or service of search warrants, the following principles seem to be established:

1. That the warrant should be served in the day time, unless in case of necessity, and upon positive proof.

2. That the complainant should accompany the officer, in order to identify the goods.

3. If the doors are open, the officer may enter the suspected house, with his assistants, whether the goods are there or not.

4. If the doors are shut, the officer, after demand and refusal, may break them.

5. If, upon trial, it appears to the justice that the goods were stolen, he should lodge them in the officer's hands, who should keep them safely until the court. If the goods were not stolen, they should be returned to him from whose possession they were taken.

1R. S. ch. 158, sec. 25.

2Dav. Just. 81.

3Ib. 82.

413 Mass. 288.

Ib. 289.

6. If the possessor knew not that they were stolen, he should be discharged as an offender, and recognized as a witness.

II. OF THE RETURN.

Every person arrested by warrant for any offence, where no provision is made for his examination thereon before any other justice of the peace, shall be brought before the magistrate who issued the warrant; or, if he be absent or unable to attend, before any other magistrate of the same county; and the warrant, with a proper return thereon, signed by the person who made the arrest, shall be delivered to the magistrate.'

The officer, who shall arrest any person, charged as principal or accessory in any larceny, or with buying, receiving, or concealing stolen property, shall secure the property alleged to have been stolen, and shall be answerable for the same; and shall annex a schedule thereof to his return; and upon conviction of the offender, the stolen property shall be returned to the owner.2

As in civil proceedings the return is made upon the back of the writ, so in criminal it is made upon the back of the warrant. The return, being the legal evidence of the service, is alike necessary in both. And in both it should state generally the mode of service, be signed by the officer, and a certificate of his fees be also annexed.

IR. S. ch. 171, sec. 8.

2R. S. ch. 156, sec. 14.

CHAPTER IV.

ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES.

THE Revised Statutes have made certain many points of practice formerly considered doubtful. But it is manifestly impossible to reduce into a statute minute directions as to the whole course of proceedings, the various pleadings and issues which may arise, the effects of different pleas, the admissibility of witnesses, the kind of evidence required, and the credit to be attached to the various shades and classes of testimony.

Every person arrested by warrant for any offence, where no provision is made for his examination thereon before any other justice of the peace, must be brought before the magistrate who issued the warrant; or if he absent or unable to attend, before any other magistrate of the same county; and the warrant, with a proper return thereon, signed by the person who made the arrest, must be delivered to the magistrate.1

Any magistrate may adjourn an examination before himself, from time to time, not exceeding ten days at one time, and may take the recognizance of the party accused, with sufficient sureties, for his personal attendance for the purpose before such magistrate; but if the party is charged with a capital offence, he must be committed to prison in the mean time.2

If the party so recognized do not appear, at any time appointed, before the magistrate, for further examination, the magistrate shall record the default, and certify his recognizance, with the record of the default, to the district court; and the like proceedings shall be had thereon, as on a breach of the condition of a recognizance for appearance before the court.3

When such person shall fail to recognize, he may be committed to prison by an order from the magistrate, stating, in a summary manner,

1R. S. ch. 171, sec. 8.

*Ib. sec. 9.

R. S. ch. 171, sec. 10.