PART III. estate, or any interest in lands, tenements, or heredita ments. The offence of three or more, being armed, entering on land in the night to take game (9 Geo. 4, c. 69, s. 9); of bribery, or undue influence committed at a parliamentary election (17 & 18 Vict. c. 102, s. 10); and offences against the False Personation Act, 1874, 37 & 38 Vict. c. 36, s. 3, cannot be tried at a general or quarter sessions of the peace. By 24 & 25 Vict. c. 96, s. 87, no misdemeanor against any of the last twelve preceding sections of that Act (for the punishment of frauds by trustees, bankers, officers of public companies, &c.), can be prosecuted or tried at any such court. If the court has not jurisdisdicton, the defendant may take advantage of it, either by a plea to the jurisdiction, or, if it appear on the record, by demurrer, or, as it seems, by motion in arrest of judgment, or by a writ of error. But the objection may also be taken under the general issue, and this is by far the most usual course. (R. v. Hewitt, R. & R. 58; R. v. Johnson, 6 East 583.) If a prisoner be indicted at the quarter sessions for housebreaking and stealing goods in the house, he is not entitled to be acquitted if it turn out on the trial that the offence was committed in the night-time, and that therefore he committed burglary, for which offence the sessions has no jurisdiction, because the indictment is for an offence within the jurisdiction of the sessions, and the prisoner is guilty of felonious housebreaking, the offence with which he is charged, although he might have been indicted for the burglary. So, if a person be indicted at the sessions for stealing from the person, he is not to be acquitted if it turn out that he committed the offence of robbery-for though he committed this offence he is still guilty of the offence of stealing from the person. Exclusive In general, where a sufficient number of barristers attend, audience counsel have exclusive audience at the sessions; but solicitors of counsel. in general are allowed to practice as advocates when this is not the case. (Ex p. Evans, 9 Q. B. 279; Collier v. Wicks, 2 B. & Ad. 669.) The whole sessions for whatever number of days it continues by regular adjournments is in point of law considered only as one day; and the justices may before the actual close of the sessions alter their order, or sentences; but they cannot do so after the sessions is closed. By 21 & 22 Vict. c. 73, every sentence pronounced by any court of general or quarter sessions, shall take effect from the time of the same being pronounced unless the court CHAP. X. otherwise direct. a second As to sitting in a second court, see 21 & 22 Vict. c. 73, Sitting in s. 9; in Middlesex see 14 & 15 Vict. c. 55, ss. 15, 16; and court. as to the recorder of a borough appointing a second court, see 7 Will. 4 & 1 Vict. c. 19, 40 & 41 Vict. c. 17. Certain boroughs have courts of quarter sessions (5 & 6 Borough Will. 4, c. 76, 7 & 8 Vict. c. 50); the recorder is the sole sessions. judge of such a sessions; but he may in case of sickness or unavoidable absence appoint under his hand and seal a deputy recorder, being a barrister of 5 years' standing, to act for him at the quarter sessions next ensuing, and no longer or otherwise. (See 6 & 7 Vict. c. 89, s. 8.) In boroughs having grants of quarter sessions, the recorder shall hold once in every quarter of a year, or at such other and more frequent times as the said recorder in his discretion may think fit, or as His Majesty shall think fit to direct, a court of quarter sessions of the peace in and for such borough. (5 & 6 Will. 4, c. 76, s. 105.) The recorder fixes the day when the sessions is to be held. The mayor in the absence of the recorder and deputy recorder is authorised to open and adjourn the court, and respite the recognizances to such further day as the mayor may then and there and from time to time cause to be proclaimed. It has been held that the jurisdiction of a recorder of a borough is not suspended by the arrival of the judges of assize in the same county, and that this would apply equally to the jurisdiction of the quarter sessions of the county. (Smith v. Reg., 18 L. J. M. C. 207.) But COLERIDGE, J., said it was better for the quarter sessions not to proceed with the trial of prisoners after the business of the assizes had commenced. 9 C. & P. 90. PART IV. PART IV. PROCEEDINGS PRELIMINARY TO FINDING OF BILL When private persons may arrest without CHAPTER XI. ARRESTING WITHOUT A WARRANT FOR AN INDICTABLE OFFENCE. When private persons may arrest without a warrant p. 40. Mode, time, and place for making an arrest p. 41. p. 42. p. 43. WE will now notice when private persons and constables are justified in arresting without a warrant for an indictable offence. We shall hereafter in Chapter 13, show how a warrant for an arrest is obtained, and the proceedings thereunder. At common law all private persons are justified without a warrant in apprehending and detaining until they can be carried before a magistrate all persons found committing or attempting to commit a felony, or who have committed a a warrant. felony. But in cases of offences less than felony, a private person as a general rule has at common law no right to apprehend offenders. (Matthews v. Biddulph, 4 Sc. N. R. 54.) A private person is justified in arresting a person committing a breach of the peace in his presence whilst it continues or there is a probability of its being renewed. (Price v. Seeley, 10 Cl. & F. 28.) In a civil action for an arrest it is a good defence that the defendant arrested the plaintiff because a felony had been committed, and the defendant had a reasonable ground of suspicion that the plaintiff was guilty of it. [(Beckwith v. Philby, 6 B. & C. 635.) But in such an action the defendant can not justify the arrest merely upon the ground that he suspected that a felony had been committed if in point of fact no felony had been committed. In Foster's Crown Law, p. 318, it is stated:-Supposing a felony to have been actually committed, but not by the person arrested CHAP. XI. (see R. v. Price, 8 C. & P. 282) or pursued upon suspicion, this suspicion, though probably well founded, will not bring the person endeavouring to arrest or imprison within the protection of the law so far as to excuse him from the guilt of manslaughter, if he killeth, or on the other hand to make the killing of him amount to murder. I think it would be felonious homicide, but not murder, in either case; the one not having used due diligence to be apprised of the truth of the fact; the other not having submitted and rendered himself to justice, since, if his case would bear it, he might have resorted to his ordinary remedy for the false imprisonment. By 14 & 15 Vict. c. 19, s. 11, any person may apprehend any one found committing an indictable offence in the night (a), and convey or deliver him to some constable or other peace officer in order that he may be conveyed as soon as conveniently may be, before a justice of the peace to be dealt with according to law. (1 Russ. on Crimes, p. 629.) There are many statutes (b) which authorise the arrest of a person found committing an offence, &c. Under these statutes, a person must be taken in the act or on fresh pursuit. (Roberts v. Orchard, 2 H. & C. 769; 33 L. J. Ex. 65.) It is always better for a private person to obtain a warrant for the arrest where circumstances will admit of his doing so, and he is not then liable in a civil action for the arrest unless he acted maliciously and without reasonable and probable cause in obtaining the warrant; and in some cases as we have seen his responsibility criminally may be affected where he arrests without warrant. stables Constables have the same powers to arrest as private When conpersons; they have also additional powers. Constables, at may arrest common law, may arrest any person without warrant on the without a reasonable belief that he has committed a felony though no warrant. felony has been committed, and though the grounds of suspicion are facts communicated by others; but this doctrine does not extend to misdemeanors. (Griffin v. Coleman, 4 H. &. N. 265; 28 L. J. Ex. 134.) A constable is not in general justified in arresting a person without a warrant for a misdemeanor (see Cod v. Cabe, 45 L. J. M. C. 101); but he is justified in arresting without a warrant a person committing a breach of the peace in his presence, and whilst there (a) i.e. between 9 P.M. and 6 A.M. (b) See 24 & 25 Vict. c. 96 (the Larceny Act), s. 103; c. 99 (Offences relating to Coin), s. 31; c. 97 (Malicious Injuries to Property Act), s. 61. PART IV. is danger of a renewal, but not after the breach and danger of renewal have ceased, and he may arrest a person given in charge by one who has witnessed the breach of the peace, when there is danger of immediate renewal. (Price v. Seeley, 10 C. & F. 28; 1 Russ. on Crimes, 721.) In order to justify an arrest under a warrant for a misdemeanor it is necessary for the officer to have the warrant with him, and he shonld produce it if required to do so. (R. v. Chapman, 12 Cox C. C. 4.) There are many statutes giving constables special powers of arrest. (See 1 Russ. on Crimes, 729.) Under the 24 & 25 Vict. c. 96, s. 104 (the Larceny Act), any constable or peace officer may take into custody without warrant any person whom he shall find lying and loitering in any highway, yard, or other place during the night, and whom he shall have good cause to suspect of having committed or being about to commit any felony against this Act, and shall take such person as soon as reasonably may be, before a justice of the peace to be dealt with according to law. There are similar provisions in the 24 & 25 Vict. c. 97 (Malicious Injuries to Property Act), s. 57; and in the 24 & 25 Vict. c. 100 (Offences Against the Person Act), s. 66. As to arresting the holder of a license under the Penal Servitude Acts, see 27 & 28 Vict. c. 47, s. 6. Mode, under a &c. When a constable acts without a warrant by virtue of his office as constable, he should, unless the party be previously acquainted with the fact, notify that he is a constable, or that he arrests in the Queen's name, and for what. (1 Hale, 458.) But it seems that it is sufficient if the party can collect that he is a constable. (1 Hale, 460.) Every private person is bound to assist an officer demanding his help, for the lawful taking of a felon, or the suppression of an affray, and may be indicted if he refuses without lawful excuse. Hawk. c. 12, s. 12.) (2 A person may be arrested at any time of the day or night on a criminal charge. (9 Co. Rep. 66.) The 29 Car. 2, c. 7, s. 6, prohibits the execution of any writ, process, warrant, order, judgment, or decree on Sunday, except in the case of treason, felony, and breaches of the peace (a). No place affords a protection to an offender against the criminal law. He may be arrested in his own house, and a constable, armed with a warrant, on a charge of felony, may break open the outer doors of the same in order to effect the arrest, provided there has been due notice of the business and (a) In Rawling v. Ellis, 16 M. & W. 172, it was held this Act does not prevent an arrest on a Sunday for an indictable offence. |