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whenever called upon by an officer, and in many cases voluntarily appear and give bail. Take, for example, the banker who receives deposits after his bank becomes insolvent. He is a felon, yet it would be unreasonable, if not unlawful, for a police officer, to dash into the bank without a warrant and take the banker before a magistrate, simply because some one has credibly informed the officer of the criminal act. As by the common law the rule was made to fit then existing circumstances, so modern common sense should confine its application to like circumstances.

§ 5. Arrests without warrant for misdemeanors. In an Illinois case (4) the court quoted the rule as given by Blackstone and affirmed a judgment for damages against an officer, who, without a warrant, made an arrest for vagrancy. In a later Illinois case (5) where a man had been convicted of murder in resisting arrest, the point was made, that, under the constitutional guarantees against unreasonable seizures and deprivation of liberty without due process of law, the attempted arrest was illegal, but the court said:

"Without deeming it necessary to indicate what we would hold in regard to the constitutionality of an act authorizing an arrest for a misdemeanor committed in the presence of an officer, where there would be no danger of the escape of the offender or the continuance of the offense if an arrest were not presently made, we have no

(4) Stanley v. Wells, 71 Ill. 78. (5) North v. People, 139 Ill. 81.

hesitation in saying that it is within the principles of the common law in force in this state at and before the adoption of this provision of the constitution, to allow arrests to be made by sheriffs, constables and other like officers, for such misdemeanors committed in their presence as can not be stopped or redressed except by immediate arrest."

In a leading case (6) the supreme court of Michigan by writ of habeas corpus released a person who without a warrant, had been arrested, tried, and committed for vagrancy. For several reasons the court held the imprisonment null and void, one being that the power to arrest for a misdemeanor without a warrant was limited to breaches of the peace committed in the presence of an officer. The opinion was given by Chief Justice Campbell, who said:

"It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576.... .The occasions which would justify arrest without process must be very rare indeed in cases of vagrancy; and in a city no larger than Detroit, persons charged with disorderly conduct can very generally be dealt with more legally and justly in the regular way, inasmuch as very much of it involves no immediate danger to public or private security.

(6) Sarah Way's Case, 41 Mich. 299.

"Making, as we are disposed to make, all proper allowances for zeal of police officers in dealing with persons who are supposed to be bad members of society, it is the duty of all courts to prevent good or bad citizens from being unlawfully molested. Official illegality is quite as reprehensible as private violations of law. The law of the land must be accepted by every one as the only rule which can be allowed to govern the liberties of citizens, whatever may be their ill desert.

"We think the proceedings in the case before us do not justify the detention of the prisoner, who is accordingly discharged."

Aside from the special powers granted by constitutional and statutory provisions, the above cases seem to announce the correct doctrine, i. e., that for minor offenses no arrests should be made without a warrant, except for an offense committed practically in the presence of an officer, and of such nature that the public peace requires immediate action. If an assault is made in the presence of an officer, which is being continued, or is likely to be renewed, the officer has the undoubted right to make an arrest; but if an officer sees an altercation between two neighbors, which has ceased before his arrival at the scene of action, and there is no probability of its renewal, he should not make an immediate arrest, but let the matter rest for regular proceedings by complaint and warrant.

§ 6. Misdemeanors not committable by single acts. There is a class of misdemeanors in which the offense does not consist of distinct and complete acts, susceptible of being viewed at a particular time, but in which the acts.

or omissions by reason of their continuity resolve themselves into an illegal condition. For example, legitimate business may become a criminal nuisance, not because of any one act, but by reason of general carelessness in its conduct. Vagrancy does not consist in one act, or in any number of acts, but in a continued mode of life resulting in a condition. To be an inmate of a disorderly house does not consist of any one act, but in the general relation of the inmate to the conduct of the house. These offenses, by their very nature, are not on any single occasion completely committed in the presence of an officer, as may be an assault, but are only cognizable through the regular methods of prosecution. Even if an offender's name is unknown there is no necessity for his immediate arrest, for he may be otherwise described in a warrant.

§ 7. Raids. There is a class of illegal arrests, popularly known as "raids," or "pulls," which are supposed to follow the forms of law but are in direct violation of its principles. The usual custom is to procure a warrant for the keeper of a gambling or disorderly house, and then, in the night time with a detachment of police officers, to surround the house and arrest every person found in it, visiting patrons included, on the theory that all except the keeper are inmates, and subject to be arrested on view. These arrests are clearly illegal, in the absence of statutory authorization. First, as before stated, the offense of being an inmate is not a distinct act that can be committed on view. It is a matter to be determined by a judicial investigation, and is not to be passed upon by a ministerial

officer at the moment of making an arrest. Second, an inmate is one connected with the conduct of the house as distinguished from a patron.

§ 8. Subsequent complaint after arrest without warrant. The emergency which permits an arrest to be made without a warrant, ceases when the prisoner is brought before a magistrate for a hearing; for then the prisoner being securely in custody there is no further need of haste, and the magistrate has no power to proceed unless a charge in due form is made (7).

In Rhode Island, a justice of the peace, seeing an unlawful tumult, ordered the offenders to be arrested. On their being brought before him, he proceeded without any formal charge. For this he was held liable in a suit for damages, for, although the arrest was legal, the subsequent proceedings were held to be without jurisdiction and void (8).

There are several other decisions practically to the same effect (9). The fact that this practice may be common in many localities does not render it legal.

§ 9. Arrest upon warrant: General requisites of warrant. A warrant may be based upon an indictment, or upon an information filed by prosecuting attorney, or upon a complaint before a magistrate-methods which will be considered in the next chapter. The usual warrant is issued by a justice of the peace or police magis

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(9)

Wilcox v. Williamson, 61 Miss. 311; Prell v. McDonald, 7 Kan. 450; Burgis v. State, 4 Ind. 126.

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