These laws and customs generally remained under the rule of the Danes. The restoration of Anglo-Saxon power did not obliterate the foot-prints of the Danes; nor did the Norman conquest, sweeping as it was, introducing the feudal system, and establishing new conditions and laws to further the policy of the invaders, wipe out the great common law of the people. From the time of the conquest the common law of England continued its growth. Although modified by centuries of parliamentary legislation, the steady undercurrent of the common law has continued unbroken, and perhaps has affected the interpretation of succeeding statutes as much as it has been altered by them.

The early settlers of the English colonies of America brought with them the laws and customs of England, including criminal procedure, so far as they were adapted to American conditions, and these rules were molded by the customs and usages of the new land. This American common law, where unchanged by statute, governs the procedure of our criminal courts. Our systems of criminal procedure, while alike in a few fundamental principles, vary considerably according to localities and conditions. Each jurisdiction, whether national or state, has power to create its own system of practice, provided it does not conflict with constitutional provisions. Some of these principles are declared by the United States Constitution, others by state constitutions, others are so firmly founded in public opinion and tradition, that they do not need any express support by constitutions or statutes. For example, the ancient sentence

for high treason, and the practice of pressing prisoners to death to compel them to plead, are each so abhorrent, that even though we had no constitutional provision against cruel punishments, any effort to revive either practice would be ineffectual.

In this brief article, only general rules will be considered, leaving the reader to consult the statutes for local practice. The topics treated will include: (1) Arrests; (2) modes of prosecution; (3) certain special proceedings common in criminal practice; (4) procedure before trial; (5) the trial; (6) proceedings after trial; (7) appellate proceedings.

CHAPTER I.

ARRESTS.

§ 2. In general. In criminal procedure, an arrest consists in taking an individual into custody upon a criminal charge, so as to prevent his escape either before or after investigation or trial. In some instances this may be done without a written warrant; but where no emergency exists, the better practice is to secure a warrant from a judge, court or magistrate previous to the arrest.

According to the approved practice, the person about to be arrested, should first be informed of the purpose of the arrest. It has been held, that, if this is not done, resistance upon his part is justifiable (1). But circumstances may require the utmost expedition on the part of the officer or other person making the arrest, and when the person to be arrested is a dangerous character, who is likely to resist and endager life, public policy seems to require concealment of purpose until by sudden decisive action complete custody may be had. It has been held that information of the nature of the arrest need not be given until a surrender has been made (2); but this doctrine certainly has its limits and was not intended as a sweeping declaration. Certainly under ordinary circum

(1) Bellows v. Shannon, 2 Hill 86; State v. Phinney, 42 Me. 384. (2) State v. Townsend, 5 Harr. (Del.) 487.

stances a citizen should not be required to surrender his liberty upon the arbitrary demand of either an officer or private person.

To make an arrest complete physical control is not necessary, for where a surrender is made custody is complete without any actual touching, which, in many instances, would be unnecessarily humiliating. The law does not require a needless display of force.

§ 3. Arrests without written warrants. The right of an individual to be secure from unreasonable physical restraint has long been a recognized doctrine of both American and English law. As a general rule, the individual is secure against arrest and detention, except upon written process issued by a court or magistrate for good cause shown; but emergencies frequently exist, where public policy and safety require immediate action, by either an officer or private person.

The English doctrine, as stated by Blackstone, was that an arrest without a warrant could be made by a constable for any felony, or for a dangerous wounding likely to result in a felony, or for a breach of the peace committed in his presence (3). Under this rule, if a murder, burglary, arson, or robbery is committed and is brought to the attention of the officer, he may arrest any one whom he has reason to believe has committed the crime, or if he finds a person dangerously wounded or receives reliable information of a dangerous wounding indicating a criminal assault, he may immediately proceed to capture the sup

(3) 4 Bl. Com. 292.

posed offender. These are cases of emergency, where public policy and safety require immediate action.

§ 4. Possible qualification of the common law rule. The right to arrest without warrant at common law applied to any case of felony. As the common law rules were based upon considerations of necessity, public policy, and existing conditions, they should expand, contract, or disappear with changing conditions. During the period in which this rule of the common law was formulated, felonies were punished by death and forfeiture of goods, and a felon was regarded as an enemy to society, who, having committed a heinous crime, was ever on the alert to avoid its consequences. He was presumed not to exhibit himself in public places, or to be at any place where he would be easily found and captured by an officer-hence the law required that he should be sought, with or without a warrant, at any time or place.

Although it is generally conceded that this common law rule is a part of the law of our country, it may well be doubted whether it should be applied to all cases of felony. At present, but a few felonies are punishable with death, the usual punishment being imprisonment in the penitentiary. Congress and our state legislatures have greatly enlarged the schedule of felonies, extending it to cover matters not recognized as crimes in the earlier days of common law. At the present time the list of felonies includes many social, industrial, and commercial offenses, for which the offenders, unlike the felons of earlier days, have no inclination to flee from their comfortable homes to escape arrest; but are generally ready