county or counties as shall be in the ordinary route of travel from the place where the prisoner shall have been arrested, to the place where he is to be conveyed and delivered under the process by which the arrest shall have been made; and such conveyance shall not be deemed an escape.

A prisoner in custody and passing through a county not liable to arrest on civil process. Love v. Humphrey, 9 Wend. 204.

§ 163. Power and privilege of officer. While passing through such other county or counties the officers having the prisoner in their charge shall not be liable to arrest on civil pro cess; and they shall have the like power to require any citizen to aid in securing such prisoner, and to retake him if he escapes, as if they were in their own county; and a refusal or neglect to render such aid shall be an offense, in the same manner as if they were officers of the county where such aid shall be required.

§ 164. When magistrate issuing the warrant is unable to act.-When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, he may, if that magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant with his return indorsed and subscribed by him.

See People v. Frink, 41 Hun, 193; People v. Navagh, 4 N. Y. Cr. Rep. 297; Fraser v. Board etc., 17 State Rep. 875.

Persons arrested under any warrant issued for any offense, where no provision is otherwise made, shall be brought before the magistrate who issued the warrant, or if he be absent or his office be vacant, before the nearest magistrate in the same county. People v. Chapman, 30 How. 202; People v Clews, 77 N. Y. 39.

§ 165. Defendant in all cases to be taken before a magistrate without delay. The defendant must in al cases be taken before the magistrate without unnecessary delay and he may give bail at any hour of the day or night.

A magistrate cannot commit a prisoner under arrest for a future hearin until he has been brought before him. Pratt v. Hill, 16 Barb. 303.

A justice of the peace issued a warrant on Saturday on a criminal complain and on it indorsed a direction to the constable to commit the parties until nex Monday for examination, and the constable committed them and held the accordingly. Held, that both officers were trespassers. The party arreste

must be forthwith taken before a magistrate. Pratt v. Hill, 16 Barb. 303; Harley v. Butler, 48 Barb. 101.

The officer may detain the defendant a reasonable time to find a magistrate. Arnold v. Steeves, 10 Wend. 514, 515.

May be held on a justice's warrant not exceeding twelve hours. Id.

§ 166. Defendant, before another magistrate than the one who issued the warrant. If the defendant be taken before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magistrate, or if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony

anew.

CHAPTER ILL.

ARREST BY AN OFFICER, UNDER A WARRANT.

SECTION 167. Arrest defined.

168. By whom an arrest may be made.

169. Every person bound to aid an officer in an arrest.

170. When the arrest may be made.

171. How an arrest is made.

172. No further restraint allowed than is necessary.

173. Officer must state his authority, and show warrant, if required. 174. If defendant flee or resist, officer may use all necessary means

to effect arrest.

175, 176. When an officer may break open a door or window.

8167. Arrest defined. Arrest is the taking of a person into custody that he may be held to answer for a crime.

See 4 Alb. L. J. 198; 1 Bish. Crim. Proc. (3d ed.), § 156; 1 Wheeler Crim. Cas. 104, note; Searls v. Viets, 2 Thomp. & Cook, 226.

168. By whom an arrest may be made.-An arrest may be:

1. By a peace officer, under a warrant ;

2. By a peace officer, without a warrant; or

3. By a private person.

169. Every person bound to aid an officer in an arrest. Every person must aid an officer in the execution of a

warrant, if the officer require his aid and be present and acting in its execution.

See Coyles v. Hurtin, 10 Johns. 85; Elder v. Morrison, 10 Wend. 137.

170. When the arrest may be made. If the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday, or at night, unless by direction of the magistrate indorsed upon the warrant.

In Murphy v. Koon, 20 Abb. N. C. 259; 8 N. Y. State Rep. 230, the action was brought to recover damages for an alleged assault and battery and false imprisonment. A warrant was issued by a police justice, commanding the apprehension of this plaintiff on the charge of larceny, to-wit: the stealing of a dog of the value of ten dollars. The warrant was handed to one of the defendants, who took with him the other, at about three o'clock in the morning, and went to the plaintiff's residence, and, after rapping, gained admission, entered the house, and arrested the plaintiff. There was no authority to arrest in the night-time indorsed upon the warrant. Held, that the defendants were not justified in making the arrest at the time they did, and that the court properly charged that there was a false imprisonment as soon as the defendants took the plaintiff into custody.

§ 171. How an arrest is made. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.

See Gold ads. Bissell, 1 Wend. 210; Rapalje's Crim. Proc., § 10.

§ 172. No further restraint allowed than is necessary. – The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention.

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§ 173. Officer must state his authority, and show war rant, if required. The defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required.

See 4 Alb. L. J. 85, 149.

In People v. Shanley, 40 Hun, 478, defendant was indicted and convicted of an assault in the second degree for having resisted one K., a police officer wh attempted to arrest him for a misdemeanor, not committed in the officer's pres ence. A warrant had been issued and was at the time in the office of the chie of police, but not in the actual possession of the police officer. The defendan knew that K. was a police officer and had heard that the warrant had been is sued.

The court charged that the warrant was in the constructive possession of the officer, and declined to charge that it was the duty of the officer to disclose to the defendant his authority and the process under which he arrested him. Heid, error; that the language of section 173 of the Code of Criminal Procedure, regulating arrests by officers under warrant, required the officer to have the warrant in his actual possession, ready to be shown to the defendant if required Learned, P. J., said: On common-law principles, aside from statute, this same doctrine is laid down in Codd v. Cabe, 1 Exch. Div. 352, which followed Galliard v. Laxton, 2 Best & Smith, 363. The former of those cases was almost exactly like the present. A warrant had been issued against Codd and placed in the hands of one constable. Another constable, not being in the possession of the warrant, arrested him. Codd did not demand to see the warrant, resisted the arrest and greatly injured the officer. For this resistance and assault Codd was convicted. The conviction was reversed by the three judges of the court of appeals, Bramwell, Mellor and Denman, and they stated that they had the concurrence of other judges whom they had consulted. Their decision is directly in point and shows the present view in England of the common law. The other case was similar. If the remark in Arnold v. Steeves, 10 Wend. 515, was correct, that an officer is not bound to show his warrant, which remark is followed (with a semble) in Bellows v. Shannon, 2 Hill, 86, certainly that rule is changed by section 173, above cited. So that argument derived from those cases is of no weight. The same may be said of the remarks in 1 Bishop's Criminal Procedure, SS 191, 192. The Code has declared that the officer must show his warrant if requested. And it follows inevitably that he must have it with him." See 51 N. J. L. 189; 31 Cent. L. J. 499.

174. If defendant flee or resist, officer may use all necessary means to effect arrest. — If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

If a felony has actually been committed, an officer, in arresting the offender or preventing his escape, will be justified in taking his life, providing there is an absolute necessity for so doing. It is otherwise in case of an arrest for misdemeanor. Conraddy v. People, 5 Park. 237; Rey v. Murphy, 1 Crawf. & Dix C. C. 20; Gardiner v. Thebodeau, 14 La. Ann. 732; State v. O'Neil, 1 Houst. Crim. Cas. 468.

All force necessary may be employed by an officer alike in a felony and misdemeanor in making an arrest. Mesoner v. Comr., 26 Grått. 976; Brooks v. Comr., 61 Penn. St. 352; Golden v. State, 1 So, Car, 292; Burdett v. Coleman, 14 East, 163, 190.

8175. When officer may break open a door or window.— The officer may break open an outer or inner door or window of any building, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance.

See § 178, post; 2 Hawk. P. C., chap. 14, §§ 3-7; 5 City Hall Rec. 141; 2 Alb. L. J. 303; Bell v. Clapp, 10 Johns. 265.

§ 176. When officer may break open a door or window. An officer may break open an outer or inner door or window of any building, for the purpose of liberating a person, who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation.

If the officer, having lawfully entered the house through an open outer door, is locked in by inmates, he may break out or be rescued by his associates breaking in. 1Bish. Crim. Proc., 202; White v. Wiltshire, Cro. Jac. 555; 1 Chit, Crim. Law, 58; 2 Hawk. P. C., chap. 14, § 11; 1 Hale P. C. 459.

CHAPTER IV.

ARREST BY AN OFFICER WITHOUT A WARRANT.

SECTION 177. In what cases allowed.

178. May break open a door or window, if admittance refused.
179. May arrest at night, on reasonable suspicion of felony.
180. Must state his authority, and cause of arrest, except where
party is committing felony or is pursued after escape.
181. May take before a magistrate, a person arrested by a bystander
for breach of the peace.

182. Magistrate may commit by verbal or written order, for offenses
committed in his presence.

§ 177. In what cases allowed. - A

out a warrant, arrest a person:

peace officer may, with

1. For a crime, committed or attempted in his presence;

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.

The English cases in regard to arrests without warrant are collected and elaborately reviewed by Mr. Greaves, the well-known editor of Russell on Crimes, published in Cox & Saunders' Criminal Acts (3d ed.), LXI, entitled "The Law of Arrest without Warrants."

See, also, 18 Eng. Rep. 360; 11 Cent. L. J. 321; 8 Crim. Law Mag. 12: 4 id. 193; Price v. Seeley, 10 Clark & Finnelly, 28; 1 Bennett & Heard's Lead. Crim. Cas. 2d ed.) 117, and notes 183-193, 197-202; id. 220, note; Burn's Justice, tit. "Arrest "; 1 Alb. L. J. 28, 86, 149; Hurd Habeas Corpus (1st ed.), 402, 395 (2d ed.); 1 Bish. Crim. Proc. (2d ed.), §§ 164, 173, 181, 186; 3 Whart. Crim. Law (7th ed.), §§ 2927-2935; 1 Russell Crimes (5th Eng. ed.), 709-730; id. (7th Am. ed.), 255-9; 3 Wait's Actions and Defenses, 311.