CHAPTER XVI. OF ARRESTS FOR FELONY OR MISDEMEANOR. [WE are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction;] viz. that which is (as the general rule) pursued where the offence charged amounts to a felony or indictable misdemeanor (a). This subject may be distributed under eleven general heads, following each other in progressive order, viz. 1. Arrest. 2. Commitment and bail. 3. Prosecution. 4. Process. 5. Arraignment, and its incidents. 6. Plea, and issue. 7. Trial, and conviction. 8. Judgment, and its consequences. 9. Reversal of judgment. 10. Reprieve, or pardon. 11. Execution. All which will be discussed in the subsequent part of this book. An arrest, in the sense here referred to, is the apprehending or restraining of the person of a man, in order that he shall be forthcoming to answer an alleged or suspected crime (b). [To this arrest all persons whatsoever are, without distinction, equally liable in criminal cases; and, in general, an arrest may be made four ways. First. By warrant. Secondly. By an officer without warrant. Thirdly. By a private person, also without warrant. Fourthly. By a hue and cry.] (a) Vide sup. p. 91. It has been elsewhere explained in this work, that some misdemeanors, and even the felonious offence of larceny, may, in certain cases, be dealt with, not by way of indictment, but by a summary method of proceeding before a justice or justices. (Vide sup. pp. 410, 412.) (b) In civil cases, also, a debtor who is about to flee the country may be arrested, in order to secure his being forthcoming (vide sup. vol. 111. p. 592). First. A warrant may be granted, in cases of treason or other offence affecting the government, by the privy council or one of the secretaries of state (c). Any judge also of the Court of Queen's Bench may at common law, in his character of conservator of the peace (d), issue his warrant to bring before him for examination a person charged with felony (e; and by 36 Geo. III. c. 77, s. 18, 35 Geo. III. c. 96, and 48 Geo. III. c. 58, such judge has authority to grant a warrant for commitment in cases of misdemeanor, upon indictment found or information granted in the Court of Queen's Bench. A like power to which is exercised by courts of oyer and terminer, and by the justices at sessions upon indictments, either for felony or misdemeanor, found within their jurisdictions respectively (ƒ). But warrants are ordinarily issued by justices of the peace out of sessions; a subject on which the law has been lately consolidated by 11 & 12 Vict. c. 42 (g). (c) 1 Chit. Cr. L. 34, 107; Hawk. P. C. b. 2, c. 16; 4 Bl. Com. 290; see Kendal v. Row, 1 Ld. Raym. 65; R. v. Wilkes, 2 Wils 151; R. v. Despard, 7 T. R. 736; 11 Harg. St. Tr. 318. See also as to the power of a secretary of state to remove a prisoner by warrant from Ireland, in order to his trial in England. (Sedley v. Arbouin, 3 Esp. 178.) A practice had obtained in the secretary'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 persons in particular,) the authors, printers and publishers of such obscene or seditious libels as were particularly specified in the warrants. When those Acts expired in 1694, the same practice was inadvertently continued in every reign, and under every administration, ex cept the four last years of Queen Anne, down to the year 1763. When, on 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 whole Court of Queen's Bench to be void. (Money v. Leach, 3 Burr. 1742; S. C. 1 Bl. Rep. 555.) After this case the issuing of such general warrants, was declared illegal, by a vote of the house of commons. (Com. Journ. 22nd April, 1766.) (d) Vide sup. vol. 11. p. 663. (g) The statute 11 & 12 Vict. c. 42, is not to alter or affect any of the provisions in the Metropolitan Police Acts, or in the London Police Act [vide sup. p. 414, n. (d)]. This statute provides in substance, that in all cases where a charge, or complaint, shall be made before one justice of the peace, or more, for any county or place in England or Wales,—that any person has committed, or is suspected to have committed, any treason or other felony, or any indictable misdemeanor or offence whatsoever, within the limits of their jurisdiction: or that any person who has committed, or is suspected to have committed, such offence out of their jurisdiction (h), resides, or is, or is suspected to reside or be, within the same:-then, (if the party shall not be in custody,) the justice or justices may issue a warrant to apprehend him; and may cause him to be brought before them, or any other justice or justices of the same county or place, to answer for the charge or complaint, and to be dealt with according to law; or they may, at their discretion, issue a summons, in the first instance,-in lieu of a warrant,-and forbear to proceed by warrant until the summons has been disobeyed. But there is this distinction: that where a warrant in the first instance is applied for, an information or complaint in writing, and upon oath, must be laid before the justices; but where only a summons, the information or complaint may be by parol, and no oath is necessary. The form of the warrant is prescribed by the statute itself (i); and [a warrant properly penned, even though the magistrate who issues it should exceed his jurisdiction, will by statute 24 Geo. II. c. 44, at all events indemnify the officer who executes the same ministerially.] On the other hand, [when a warrant is received by the officer, he is bound to execute it so far as the jurisdiction of the magistrate and himself extends;] and he may break open doors, in order (h) 11 & 12 Vict. c. 42, s. 1. By sect. 2 this extends to offences committed within the jurisdiction of the Admiralty, or on land beyond the seas; provided the case be one for which an indictment may legally be preferred in England or Wales. (i) The form of the warrant and summons, and of all other proceedings under the Act, is given in a schedule thereto. We may remark here, that the case is the same, with respect to all other instruments used in the proceedings. to execute a warrant for treason, felony, or actual breach of the peace,-provided, on demand, admittance cannot otherwise be obtained (k). Nor is there any immunity from arrest for any such offence, in the night time; nor from an arrest, for any indictable offence, on Sundays (1). A justice of the peace may also issue a warrant, not only to apprehend a person suspected of felony, but to search his premises for goods alleged to be stolen; and by 24 & 25 Vict. c. 96, s. 103 (m), if any credible witness shall, upon oath, prove before a justice of the peace a reasonable cause to suspect that any person has in his possession, or on his premises, any property whatsoever, in respect to which any offence punishable under that Act shall have been committed,— the justice may grant a warrant to search for such property, as in the case of stolen goods: and any person to whom any such property shall be offered to be sold, pawned, or delivered, is required, (if in his power,) to apprehend and carry before a justice of the peace the person offering the same, together with such property. [A warrant from the chief or other justice of the court of King's Bench extends all over the kingdom; and is tested, (or dated,) England; not Oxfordshire, Berks, or other particular county. But the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, indorsed 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 statutes;] of which the most recent are the 11 & 12 Vict. c. 42, and the 14 & 15 Vict. c. 55, s. 18. By these statutes a warrant issued in England or Wales (k) 1 Chit. Cr. L. 49; Rawlins v. Ellis, 16 Mee. & W. 172. (1) 29 Car. 2, c. 7, s. 6, and see 11 & 12 Vict. c. 42, s. 4. An arrest (or other execution) in civil cases, is not permitted on Sundays, vide sup. vol. III. p. 680, n. (a). (m) Re-enacting 7 & 8 Geo. 4, c. 29, s. 63, which was repealed by 24 & 25 Vict. c. 95. may be backed, not only in another English county or place, but in Scotland, Ireland, or the Channel Islands, or vice versa (n). Secondly. [Arrest by officers without warrant, may be executed, 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 (o); 2. The sheriff; and, 3. The coroner may apprehend any felon within the county, without warrant (p); 4. The constable, of whose office we formerly spoke, hath great original and inherent authority with regard to arrests (q). He may, without warrant, arrest any one for] a treason, felony, or [breach of the peace committed in his view, and carry him before a justice of the peace.] So upon a reasonable charge of treason, or felony,—or of a dangerous wounding, whereby felony is likely to ensue,or, upon his own reasonable suspicion that any of such offences have been committed, the constable may, without (n) The provisions of 11 & 12 Vict. c. 42, as to backing warrants, are by 11 & 12 Vict. c. 43, s. 3, extended to warrants in cases of summary conviction. We may also notice here other enactments of a character somewhat analogous. By 6 & 7 Vict. c. 34, (amended by 16 & 17 Vict. c. 118,) provisions are made as to the apprehension in the united kingdom, of persons committing treason and felony in any of her majesty's dominions out of the united kingdom. And vice versâ, as to the apprehension in those dominions, of persons so offending in the united kingdom. By 6 & 7 Vict. c. 75, (amended by 8 & 9 Vict. c. 120,) provisions are also made for carrying into effect a convention entered into by her majesty and the late King of the French, (determinable at pleasure,) for the apprehension and ex tradition of offenders in the two countries, respectively, in cases of murder or attempts to commit murder; forgery; or fraudulent bankruptcy. By 6 & 7 Vict. c. 76, (amended by 8 & 9 Vict. c. 120,) regulations are made for carrying into effect a similar convention with the United States of America, in cases of murder, or attempts to commit murder; piracy; arson; robbery; forgery, or uttering forged paper. And by 25 & 26 Vict. c. 70, for carrying into effect a similar convention with the King of Denmark in reference to murder, attempts to murder, forgery, and fraudulent bankruptcy. (0) 1 Hale, P. C. 86. (p) Jervis on Coroners, 21. (q) Vide sup. vol. 11. p. 672 et seq. |