Page images
PDF
EPUB

Oct. 19, 1864, $ 351.

Oct. 19, 1864, $ 352.

Peace officer defined.

Oct. 19, 1864, 353.

If arrest be for

made, and before making it must have satisfactory evidence that the warrant is genuine.

§ 1558. [352.] A peace officer is a sheriff of a county or constable of a precinct, marshal or policeman of a town, and a warrant of arrest must be directed to and executed by such officer. For this purpose a marshal or policeman is to be deemed a constable.

§ 1559. [353.] If the crime charged in the warrant be a felony, the officer making the arrest must take the felony, before defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 1553 [357].

what magis

trate defend

ant to be taken.

Oct. 19, 1864, $ 354.

If arrest be
for a misde-
meanor, before
what magis-

trate defendant
to be taken.

Oct. 19, 1864, $355.

Proceeding on
bail being
given in an-
other county
than where
warrant
issued.

Oct. 19, 1864, $356.

If defendant do not give bail, to be taken before magistrate of county where warrant issued.

Id., § 357.

Proceeding,

trate who

§ 1560. [354.] If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in the county in which it issued, he must be taken before a magistrate, as provided in the last section; but if he be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate of that county, who must admit the defendant to bail, and take bail from him accordingly.

§ 1561. [355.] On taking bail, as provided in the last section, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant; and the officer must then discharge the defendant from arrest, and must, without delay, deliver the warrant and undertaking to the clerk of the court at which the defendant is required to appear.

§ 1562. [356.] If, on the admission of the defendant. to bail, as provided in section 1561 [355], bail be not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or some other magistrate in that county, as provided in the next sec

tion.

§ 1563. [357.] When, by the preceding sections of when magis- this chapter, the defendant is required to be taken before the magistrate who issued the warrant, he may, if the magistrate be absent or unable to act, be taken before

issued the warrant

absent or unable to act.

$357.

the nearest or most accessible magistrate in the same Oct. 19, 1864, county; and the officer must, at the same time, deliver to the magistrate the warrant with his return indorsed and subscribed by him.

$358.

be sent to

§ 1564. [358.] If the defendant be taken for examina- Oct. 19, 1864, tion before a magistrate other than the one who issued Statement and the warrant, the statement and depositions on which the depositions to warrant was granted must be sent to that magistrate; or magistrate if they cannot be procured, the informant and his wit- examination. nesses must be subpoenaed to give their testimony anew.

§ 1565. [359.] The defendant must, in all cases, be Id., § 359. taken before the magistrate without delay.

Defendant must be taken before magistrate without delay.

[blocks in formation]

§ 1571.

§ 1572.

Arrest, how made.

No further restraint allowed than is necessary.

Officer must state his authority, and show warrant if required.

§ 1573. If defendant flee or resist, officer may use necessary means.

§ 1574, 1575. When officer may break open door or window.

§ 1576. When peace officer may arrest without warrant.

§ 1577. May break open door or window if admittance refused.

§ 1578.

§ 1579.

Officer must state his authority and cause of arrest, except.
When officer may take person before magistrate, arrested by a by-
stander.

§ 1580. Magistrate, when he may commit for crime committed in his pres

ence.

Must take person arrested before a magistrate, or deliver him to a
peace officer.

[blocks in formation]

§ 1582.

§ 1583.

Pursuit of persons rescued or escaping.

§ 1584. May use means proper in making an original arrest.

§ 1566. [360.] Arrest is the taking of a person into Oct. 19, 1864, custody, that he may be held to answer for a crime.

Arrest generally: See the note on this subject to Hawkins v. Commonwealth, 61 Am. Dec. 151 et seq.

Arrest signifies a restraint of person: Hart v. Flynn, 8 Dana, 191. If a

person submits upon being informed
by the officer of the purpose to arrest
him, nothing more is required: Emery
v. Chesley, 18 N. H. 198; Mowry v.
Chase, 100 Mass. 79; Bissell v. Gold, 1

$360.

Arrest defined.

Oct. 19, 1864, $ 360.

Oct. 19, 1864, § 361.

Arrest, by whom may be made.

Oct. 19, 1864, 362.

Every person bound to aid an officer in making arrest. Id., § 363.

When arrest

may be made

Wend. 210; S. C., 19 Am. Dec. 487.
But otherwise mere spoken words do
not constitute an arrest; there must
be something by way of physical re-
straint: 1 Bish. Crim. Proc., sec. 157.
It is sufficient, however, if the party
making the arrest touch or lay his
hands upon the other, although he
may not succeed in stopping or hold-
ing him: Genner v. Sparks, 6 Mod.
173; Whitehead v. Keyes, 3 Allen, 495.
If the person making the arrest have

the present ability to take the pris oner, and the latter goes with him, not voluntarily, but yielding to a superior force, it is an arrest: Bissell v. Gold, 1 Wend. 210; S. C., 19 Am. Dec. 487.

There must be no resort to fraud to effect arrest, and where one is by fraud enticed into the jurisdiction, the service will be set aside: Carpenter v. Spooner, 2 Sand. 717; Seaver v. Robinson, 3 Duer, 622.

§ 1567. [361.] An arrest may be either,-
By a peace officer, under a warrant;

1.

2.

By a peace officer, without a warrant; or, 3. By a private person.

§ 1568. [362.] 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.

§ 1569. [363.] If the crime charged be a felony, the arrest may be made on any day and at any time of the on a Sunday, day or night; but if it be a misdemeanor, the arrest cannot be made on a Sunday, unless upon the direction of the magistrate, indorsed upon the warrant.

Id., 364. Arrest, how made.

Id., § 365.

§ 1570. [364.] An arrest is made by an actual restraint of the person of the defendant, or by his submis sion to the custody of the officer.

See § 1566 [360], ante.

§ 1571. [365.] The defendant is not to be subjected No further re to any more restraint than is necessary and proper for his arrest and detention.

straint allowed than is

necessary.

Id., 366.

Officer must state his authority.

-

See § 1566 [360], ante, and the preceding and following sections.

§ 1572. [366.] The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant if required by the defendant. Disclosure of purpose to arrest. badge of office, this is sufficient to - An officer or a private person seek- give notice to the arrested party: ing to arrest another should make Yates v. People, 32 N. Y. 509; Comknown his purpose: Brooks v. Commonwealth v. Tobin, 108 Mass. 426. monwealth, 61 Pa. St. 352; State v. Bryant, 65 N. C. 327; People v. Pool, 27 Cal. 576. The circumstances of each particular case may render this purpose plain; and if they do, resistance to the arrest will be illegal: 1 Bish. Crim. Proc., sec. 158. Thus, if one is wearing the accustomed

Where a party is apprehended in the commission of an offense, or upon fresh pursuit afterward, notice of the official character of the person making the arrest, or the cause of the arrest, is unnecessary, because he must know the reason why he is apprehended: People v. Pool, 27 Cal. 576.

Must show warrant. A person need not take for granted that a person who says that he has a warrant against him speaks the truth. The party arrested has a right to see the warrant if the arrest is made by virtue of one: Hall v. Roche, 8 Term Rep. 187; State v. Freeman, 8 Iowa, 428; Plasters v. State, 1 Tex. App. 673; State v. Phinney, 42 Me. 384;

Drennan v. People, 10 Mich. 169. Oct. 19, 1864, Where the officer is known, the party $366. arrested is not entitled to a perusal of the warrant until he has acknowledged the officer's authority, and his power acquiesced in: Commonwealth v. Cooley, 6 Gray, 350, 356, 357. See State v. Townsend, 5 Harr. (Del.) 487; Arnold v. Steeves, 10 Wend. 514.

$ 367.

§ 1573. [367.] If, after notice of intention to arrest Oct. 19, 1864, the defendant, he either flee or forcibly resist, the officer may use all necessary and proper means to effect the fee or resist.

arrest.

Resisting or fleeing from arrest. Fugitives from justice: See chapter 41 of this code, post.

A person making an arrest, however, should only use such force as may be necessary; but if obliged to, he may take the life of the person that he is attempting to arrest, and such homicide is justifiable: 1 Bish. Crim. Proc., secs. 159, 160; Lander v. Miles, 3 Or. 35; Morton v. Bradley, 30 Ala. 683; Mesmer v. Commonwealth, 26 Gratt. 977. This rule alike applies in arrests for felonies or misdemeanors: 1 Bish. Crim. Proc., sec. 160; but see Tiner v. State, 44 Tex. 128; Conraddy v. People, 5 Park. Cr. 234. If the officer has no authority to make the arrest, or having the authority, is not known to be an officer, and does not in some way notify the party that he is an officer and has authority, the party arrested may lawfully resist the arrest, as if it were made by a private person: State v. Bryant, 65 N. C. 329; State v. Belk, 76 Id. 14; 1 East P. C. 309.

There is a very broad distinction between forcible opposition to an arrest and attempting to flee from it. In cases of misdemeanor there is no rule of law that takes away from a man who flees from an attempted

arrest the right to defend his life. An officer in such cases is not justified in shooting at a person whom he is attempting to arrest, because he will not stop: Brady v. Price, 19 Tex. 285; Tiner v. State, 44 Id. 130; Middleton v. Holmes, 3 Port. 15. But in cases of a felony, the officer may call upon him to stop, and if he refuses, the officer is justified in shooting at him to compel him to stop: Mesmer v. Commonwealth, 26 Gratt. 976; Brooks v. Commonwealth, 61 Pa. St. 352; 1 Bish. Crim. Proc., sec. 159. Unlawful arrest. - A person, the arrest of whom is attempted to be made unlawfully, may resist such arrest, but not to the taking of life: State v. Belk, 76 N. C. 10; 1 Bishop's Crim. Proc., sec. 162. "He may stand his ground and repel force by force, taking care that the force employed does not exceed the bounds of mere defense and prevention, and that it does not become enormously disproportionate to the injury threatened" Horrigan and Thompson on Self-defense, 713. So a person who has been unlawfully arrested is justified in escaping if he can, using no more force than is necessary to accomplish this object: State v. Leach, 7 Conn. 452.

If defendant

$368.

§ 1574. [368.] The officer may break open any outer oct. 19, 1864, or inner door or window of a dwelling-house, or otherwise, to execute the warrant, if after notice of his may break authority and purpose he be refused admittance.

Breaking doors and windows. - The officer, in making an arrest, may break open doors and windows: See 1 Russell on Crimes, 839; Com

monwealth v. Tobin, 108 Mass. 426; Commonwealth v. Reynolds, 120 Id. 190. Admittance must first be demanded and refused before an officer

When officer

open door or window.

Oct. 19, 1864, $368.

Oct. 19, 1864, $369.

When officer may break open door or window.

Oct. 19, 1864, $370.

When peace officer may arrest without warrant.

Oct. 19, 1864, $ 371.

May break

open door or window.

is justified in breaking into a house in
which the person to be arrested is or
is believed to be: 1 Bishop's Crim.

Proc., sec. 201; Launock v. Brown, 2
Barn. & Ald. 592; Commonwealth v.
McGahey, 11 Gray, 194.

§ 1575. [369.] The officer may break open any outer or inner door or window of a dwelling-house, or otherwise, 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.

§ 1576. [370.] A peace officer may, without a warrant, arrest a person,

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 arrested to have committed it.

Arrest by peace officer. -Offense in presence of officer. It is the duty of an officer to arrest all persons committing, or attempting to commit, any crime within his presence: McCullough v. Commonwealth, 67 Pa. St. 30; Commonwealth v. Deacon, 8 Serg. & R. 47; In re Powers, 25 Vt. 261; Wolf v. State, 19 Ohio St. 248; Shanley v. Wells, 71 Ill. 78. The arrest should be made promptly, and if the offenders are not arrested at the time, they cannot be, after the transaction is over, without a warrant: Roberts v. State, 1 Mo. 138; Regina v. Walker, 6 Cox C. C. 371. Within a reasonable time is sufficient: Taylor v. Strong, 3 Wend. 384; see People v. Pool, 27 Cal. 572.

Charge made upon reasonable cause, etc. An officer or private person, having reasonable cause to suspect a particular person guilty of a public offense, may, acting in good faith, arrest him without a warrant: Reuck v. McGregor, 32 N. J. L. 70; Burns v. Erben, 40 N. Y. 463. The offense,

however, must amount to a felony, for neither one, acting without a warrant, has the right to arrest a person for a misdemeanor committed on an occasion already passed: 1 Bishop's Crim. Proc., secs. 167, 181; Shanley v. Wells, 71 Ill. 78; Commonwealth v. Carey, 12 Cush. 246; Commonwealth v. McLaughlin, 12 Id. 615; Commonwealth v. O'Connor, 7 Allen, 583; unless it be for such a dangerous assault as may end in a felony: Coupey v. Henley, 2 Esp. 540; Shanley v. Wells, 71 I. 78. What is a reasonable cause for suspicion is a question of law; but it is for the jury to determine the fact whether or not it exists in the circumstances of a particular case: 1 Bishop's Crim. Proc., sec. 182; Davis v. Russell, 2 Moore & P. 590. An officer who arrests a person after the governor has, pursuant to law, issued a proclamation that a felony has been committed, acts upon reasonable cause: Eanes v. State, 6 Humph. 53; see Commonwealth v. Presby, 14 Gray, 65; Lawrence v. Hedger, 3 Taunt. 14.

§ 1577. [371.] To make arrests, as provided in the last section, the officer may break open any door or window, as provided in sections 1574 [368] and 1575 [369], if, after notice of his office and purpose, he be refused admittance.

See $$ 1574 [368] and 1575 [396], ante.

« PreviousContinue »