*CHAPTER XVIII.

PROCEEDINGS BEFORE THE TRIAL.

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We are now to consider the regular and ordinary methods of proceeding in courts of criminal jurisdiction; which may be distributed under three general heads, following each other in a progressive order: viz., 1st. Proceedings before the trial. 2ndly. The trial. 3rdly. Proceedings after the trial. Of these heads the first will again subdivide itself as follows:-I. Arrest. II. The examination and commitment. III. Bail; and IV. The several modes of prosecution.

I. An arrest is the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. (728) before the trial. To this arrest all persons whatsoever are liable in criminal cases; may be made, 1, by, or 2, without warrant.

Proceedings

I. Arrest.

1. By warrant.

it

1. A warrant may be granted in extraordinary cases by the privy council, or by a secretary of state (a), or by either house of parliament (b). And at common law the chief justice or any puisne judge of the court of queen's bench may in his own name issue a warrant for apprehending and bringing before him any person charged on oath with felony, or suspicion of felony, though, to avoid trouble, such a warrant may direct the person when apprehended to be taken before a justice of the peace [*382] to be by him examined and proceeded against according to law (c): it extends all over the kingdom: and is tested, or dated, "England," not "Oxfordshire," "Berks," or other particular county.

Most commonly, however, a warrant is granted by a justice of the peace, whose power to grant it we will consider (1) at common law, (2) by statute. (1.) A justice of the peace may, at common law, issue his warrant for the apprehension of an offender (d) in any case where he has jurisdiction over the offence charged, in order to compel the person accused to appear before him (e). And this power extends at common law to all treasons, felonies, and

(a) See Leach v. Money, Wilkes v. Wood, Entick v. Carrington, and Note thereto, Broom's Con. L., pp. 525-623.

(b) Case of the Sheriff of Middlesex, and Note thereto, Broom's Con. L. pp. 960, 966, et seq.; R. v. Flower, 8 T. R. 314.

(c) Chitty Cr. L. i. 36.

(d) Bane v. Methuen, 2 Bing. 63; Hawk. P. C. b. 2, c. 13, s. 15; 12 Rep. 131. (e) 2 Hawk. P. C. 84.

(728) Some degree of corporal control is ordinarily necessary to constitute an arrest. But an arrest may be complete without corporal touch or control; as where the party to be arrested submits on being informed of the intended arrest. Emery v. Chesley, 18 N. H. 198. See State v. Phinney, 42 Me. 384; Wood v. Kinsman, 5 Vt. 588. Notice of arrest is, however, essential; and without it no amount of physical restraint is sufficient. Yates v. People, 32 N. Y. (5 Tiff.) 509. But this notice may be given by implication. Id.; People v. Pool, 27 Cal. 571.

The arrest should be made without unnecessary violence. State v. Mahon, 3 Harr. (Del.) 568. See Gardiner v. Thibodeau, 14 La. Ann. 732; Brady v. Price, 19 Tex. 285; Dill v. State, 25 Ala. 15; Morton v. Bradley, 30 id. 683. And the arrested person should be kindly treated; though it is for the officer to judge as to the severity of measures necessary to prevent an escape. State v. Stalcup, 2 Ired. (N. C.) 50. A prisoner escaping after a lawful arrest may be retaken by the officer without a fresh warrant (Cooper v. Adams, 2 Blackf. [Ind.] 294), even where the officer has consented to the escape. Com. v. Sheriff, 1 Gratt. (Va.) 127.

VOL. II. 73

breaches of the peace. Sir Edward Coke (ƒ) indeed has laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion, nor till an indictment has been actually found (g): a doctrine which sir Matthew Hale has combated with invincible authority, and strength of reason: maintaining that a justice of the peace has, irrespective of statute, power to issue his warrant to apprehend a person accused of felony, though not yet indicted (h): and that he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party who prays his warrant; because the justice is a competent judge of the probability offered to him of such suspicion. But he says, in both cases, it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there has been a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed (i). The warrant [*383] was at common law required to be under the hand and seal of the

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justice, to set forth the time and place of making it, and the cause for which it was made, and to be directed to the constable, or other peace officer, (or, it might be, to a private person by name (k) ), requiring him to apprehend and bring up the party for examination (7). A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, was long since held to be illegal and void for its uncertainty (m); for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons, guilty of a crime therein specified, is no legal warrant (n): for the point, upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. It is therefore in fact no warrant at all; for it will not justify the officer who acts under it; whereas a warrant, properly penned (even though the magistrate who issues it should exceed his jurisdiction), will, by statute 24 Geo. 2, c. 44, at all events indemnify the officer who executes the same ministerially.

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(2.) It would be useless to inquire any further concerning the [* 384] power of a justice to arrest at common law, inasmuch as this branch of his jurisdiction is now regulated by statute.

The 11 & 12 Vict. c. 42 (0), provides that where a charge or complaint, which need not be in writing or on oath (p), is made before a justice of the peace,

(m) 1 Hale, P. C. 580; 2 Hawk. P. C. 82. (n) A practice had obtained in the secretary of state's office ever since the Restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, or publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was inadvertently continued, in every reign and under every administration, except the four last years of Queen Anne, down to

the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the court of king's bench to be void, in Leach v. Money, Broom's Cons. L., pp. 525, 613, et seq. After which the issuing of such general warrants was declared illegal by a vote of the House of Commons. (Com. Journ. 22nd April, 1766.)

(0) Of which ss. 29 & 30 give to the metropolitan city and stipendiary magistrates pow ers under the act similar to those conferred upon them by the 11 & 12 Vict. c. 43, ante, p. 370.

(p) S. 8. No objection can be taken to the information or complaint for any alleged defoct therein in substance or in form. Id.

that any person has committed or is suspected to have committed any treason, felony, or indictable misdemeanor, within the limits of his jurisdiction, or that any person guilty or suspected to be guilty of having committed any such crime or offence elsewhere out of the jurisdiction of such justice is or is suspected to be within the limits of his jurisdiction, then if the person so charged or complained against is not in custody, the justice may issue a summons directed to such person stating shortly the matter of the information, and requiring him to appear before the justice at a time and place to be therein mentioned; and if after being served (q) with the summons the party fail to appear thereto, a warrant may be issued to bring him before the justice to answer to the charge (r). The justice may also issue a warrant in the first instance where the charge or complaint is made in writing on the oath or affirmation of the informant, or some witness or witnesses in that behalf; nor will the fact that a summons has been granted preclude the justice from issuing a warrant at any time before or after that mentioned in the summons for the appearance of defendant (s). The warrant may issue where the offence charged was committed within the Admiralty jurisdiction or on land beyond the seas, if cognizable in this country (t).

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[*385]

The constable receiving the warrant is bound to execute it so far as the jurisdiction of the magistrate who issued it extends (u). But the warrant of a justice of the peace in one county, as Yorkshire, must be backed by a justice of the peace in another, as Middlesex, before it can be executed there. Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county: but the practice of backing warrants had long prevailed without law, and was at last authorized by statute. The provisions now operative as to the backing of warrants for the apprehension of persons charged with the commission of indictable offences are contained in the 11 & 12 Vict. c. 42 (x), which inter alia enacts (y) that if the person against whom any such warrant shall be issued be not found within the jurisdiction of the justice who issued it, or if he shall escape, or be in any place in England or Wales out of the jurisdiction of such justice, it shall be lawful for any justice of the peace for the county or place into which such person shall so escape, or in which he shall be, upon proof being made on oath of the handwriting of the justice issuing the warrant, to make an indorsement on the same authorizing its execution within his own jurisdiction, and such indorsement will be sufficient authority to the person bringing such warrant, and also to all constables of the county or place where such warrant is so indorsed, to execute the same in such other county or place, and to carry the person against

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the justice acts, are defined by ss. 5, 6, of the
11 & 12 Vict. c. 42, and see s. 7.
(x) Sects. 11-15.

These provisions so far as relevant are applicable also to warrants issued under the summary jurisdiction of a justice, see 11 & 12 Vict. c. 43, s. 3.

(y) Sect. 11.

English warrants may be backed in Ireland (s. 12), or the Channel Islands (s. 13), and vice versa. Also English or Irish warrants may be backed in Scotland (s. 14); and Scotch warrants may be backed in England or Ireland (s. 15). And see 31 & 32 Vict. c. 107.

whom such warrant shall have issued, when apprehended, before the justice who first issued the warrant. (729)

2. Without warrant.

2. An arrest, without warrant, may be made (1) by a justice of the peace; who may himself apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence (z): (2) by the sheriff (a), and (3) by the coroner (b), who may apprehend a felon within the county without warrant. (4) By a constable, who has great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace committed in his view, and carry him before a justice of the peace. He may also upon probable suspicion of felony arrest the suspected felon; and for that purpose is authorized (as upon a justice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and if the constable or his assistants be killed in attempting such arrest, it is murder in all concerned (c).

Under the 25 & 26 Vict. c. 114 (" An act for the prevention of poaching "), s. 2, a constable is empowered, in any public place, without warrant, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game," and having in his possession any game unlawfully obtained, or any gun, net, or engine used for killing or taking game.

3. Other statutory provisions have before been noticed (d), *which [* 387] empower peace officers or even private persons to apprehend without warrant under special circumstances, and to what was there said we may add, that (5) an arrest may thus be made by a private person present when any felony is committed, who is indeed bound by law to arrest the felon, on pain

made by a constable without a warrant under stat. 32 & 33 Vict. c. 99, ss. 3 & 8; see, also, as to searching for stolen goods, id. s. 11.

As to the powers of the metropolitan and county police constables in this respect, see the 10 Geo. 4, c. 44, s. 7; 2 & 3 Vict. c. 47, and c. 93; as to special constables, see 1 & 2 Will. 4, c. 41.

(d) Ante, p. 206 (b), p. 324.

(729) An officer will be protected in executing a warrant of arrest, legal and regular upon its face. State v. Weed, 1 Fost. (N. H.) 262. But if the warrant is illegal on its face, or if the magistrate had no jurisdiction, the officer then acts at his peril. Gurney v. Tufts, 37 Me. 130; Noles v. State, 24 Ala. 672; Hall v. Howd, 10 Conn. 514; Sanford v. Nichols, 13 Mass. 286; Sleight v. Ogle, 4 E. D. Smith, 445; State v. Mc Donald, 3 Dev. (N. C.) 468. Though it is otherwise as to one assisting the officer, in good faith, in making an arrest under such a warrant. Reed v. Rice, 2 J. J. Marsh. (Ky.) 44.

An officer known to be such need not show his warrant before making an arrest. Every one is bound to know the character of an officer who is acting within his proper jurisdiction, and every citizen is bound to submit peaceably to such officer, until he can demand and investigate the cause of bis arrest. State v. Townsend, 5 Harr. (Del.) 487; Com. v. Cooley, 6 Gray (Mass.), 350; Drennan v. People, 10 Mich. 169; Arnold v. Steeves, 10 Wend. 514; Boyd v. State, 17 Ga. 194 But where the officer is not known to be such, he must show his warrant before making the arrest. Arnold v. Steeves, 10 Wend. 514; State v. Curtis, 1 Hayw. (N. C.) 471; Com. v. Field, 13 Mass. 321.

A warrant to search the dwelling-house of a person only authorizes the officer to search the house in which such person lives; and a house owned by him but occupied by another person cannot be lawfully searched under the warrant. McGlinchy v. Barrows, 41 Me. 74. The description of the place to be searched should be as certain in a warrant as would be necessary in a deed to convey such place. Jones v. Fletcher, 41 id. 254.

of fine and imprisonment (e), and may justify breaking open doors upon following such felon (f): and may kill him, provided he cannot be otherwise taken; though if the person endeavouring to make such arrest be killed, it is murder (g). Upon probable suspicion also a private person may arrest a felon, or other person so suspected (h). But he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more (i). It is no more, because there is no malicious design to kill: but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed. As regards an arrest upon suspicion without warrant, there is, moreover, this distinction to be noticed between the cases where it is made by a private individual and by a constable; in order to justify the former in causing the imprisonment, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed, whereas a constable, having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities (k).

*4. There is yet another species of arrest, wherein both officers [*388]

and private men are concerned, and that is, upon hue and cry raised where a felony has been committed. A hue (from huer, to shout) and cry, hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another (7). Hue and cry (m) may be raised either by precept of a justice of the peace, or by a peace-officer, or by any private man who knows of a felony; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification, as if acting under the warrant of a justice of the peace (n). But if a man wantonly or maliciously raises a hue and cry, without cause, he shall be punished as a disturber of the public peace (o). (730)

(1) Bracton, 1. 3, tr. 2, c. 1, s. 1; Mirr. c. 2, 8. 6.

(m) 2 Hale, P. C. 100-104.

(n) The pursuers under hue and cry, if the party suspected is actually in a house, may break open the outer door to secure him, after previous demand of admittance. 2 Hale, P. C. 103. They should, however, ascertain that fact, as, if he be not found, they will be trespassers. Id. ibid. Chitty, Cr. L. i. 30. (0) 1 Hawk. P. C. 75.

(730) Where an offense is committed in view of a magistrate, within his jurisdiction, he may order the offender into custody, and proceed to his trial. A warrant and affidavit are unnecessary in the first instance. Lancaster v. Lane, 19 Ill. 242. And see O'Brien v. State, 12 Ind. 369; Holcomb v. Cornish, 8 Conn. 375; Hoggatt v. Bigley, 6 Humph. (Tenn.) 236; Tracy v. Williams, 4 Conn. 107.

The sheriff is, ex officio, a conservator of the peace. Coyles v. Hurtin, 10 Johns. 85; Stage Horse Cases, 15 Abb. N. S. 51, 61. And sheriffs, constables, watchmen, and like officers, for all offenses committed in their presence may arrest without warrant. Com. v. Deacon, 8 Serg. & R. (Penn.) 47; State v. Brown, 5 Harr. (Del.) 505; State v. Ferguson, 2 Hill (S. C.), 619; City Council v. Payne, 2 Nott & Mc. (S. C.) 475; Spalding v. Preston, 21 Vt. 9. But for past offenses the power to arrest without warrant is limited to cases of felony and