Page images

magistrate, Graham B. thought him unworthy of credit, and directed an acquittal. Brunton was afterwards tried for sheepstealing and convicted. On case, the judges thought the conviction right. R. v. Brunton, E. T. 1821. C. Č. R. 454. Vide 1 Phill. Ev. 37. sirth edit.


(7 & 8 G. 4. c. 28.) WHEN an offender comes into court, or is brought in by pro

cess, sometimes of capias, and sometimes of habeas corpus, directed to the gaoler of another prison, the first thing that follows thereupon is his arraignment. 2 Hale, 216.

Now arraignment is nothing else but calling the offender to the What. bar of the court, to answer the matter charged upon him. 2 Hale, 216,

By 7 & 8 G. 4. c. 28. \ 1. if any person not having privilege of “ Not guilty." peerage, being arraigned upon any indictment for treasen, felony or piracy, shall plead thereto a plea of “not guilty," he shall by such plea, without any further form, be deemed to have put him. self upon the country for trial; and the court shall in the usual manner, order a jury for the trial of such person accordingly.

§ 2. If any person being arraigned upon or charged with any Prisoner refusindictment or information, for treason, felony, piracy, or misdea- ing to plead, meanor, shall stand mute of malice or will not answer directly to Court may enter the indictment or information, in every such case it shall be lawful

“ not guilty.” for the court, if it shall so think fit, to order the proper officer to enter a plea of “not guilty" on behalf of such person, and the plea 80 entered shall have the same force and effect as if such person had actually pleaded the same.

The prisoner, on his arraignment, though under an indictment Question of of the highest crime, must be brought to the bar without irons irons being and all manner of shackles and bonds, unless there be a danger of taken off. escape, and then he may be brought with irons. 2 Hale, 219. 4 Bia. Com. 323. 2 Haw. c. 28. § 1.

But note, at this day they usually come with their shackles upon their legs, for fear of an escape, but stand at the bar unbound, till they receive judgment. 2 Hale, 219.

In Layer's case, a difference was taken between the time of arraignment and the time of trial, and accordingly the prisoner was obliged to stand in irons at the bar during his arraignment; but when brought to trial, upon counsel desiring that his irons might be taken off, Ld. C. J. Pratt said, “ The irons must be taken off; we will not stir till the irons are taken off.” Layer's case, K. B. 9 G. 1. 16 Horvel's St. Tri. 94. 99. 129. See all the authorities upon this subject collected in a note to the trials of the regicides. '5 Howel's St. Tri. 979.

In R. v. Waite (for embezzlement), the prisoner at the time of arraignment, desired that his irons might be taken off; but the court informed him, that they had no authority for that purpose until the jury were charged to try him. He accordingly pleaded VOL. III.


Not Guilty; and being put upon his trial, the Court (a) immediately ordered his fetters to be knocked off. Waite's case, 0. B. Feb. Sess. 1743. 1 Leach, 28. 36. 2 East's P. C. 570. S. C.

Also, there is no necessity that a prisoner, at the time of his arraignment, hold up his hand at the bar, or be commanded so to

for this is only a ceremony for making known the person of the offender to the court; and if he answer that he is the same person, it is all one.

2 Haw. c. 28. § 2. R. v. Radcliffe, 1 Blac. Rep. 3. Fost, 40. S.C. 4 Bla. Com. 323. T. Raym. 408.

For other matters relating to this subject, see title Sessions.


THIS title is to be understood of arrests in criminal cases only,

and not in civil cases.
In law, an arrest doth signify the restraint of a man's person,
depriving him of his own will and liberty, and binding him to be-
come obedient to the will of the law; and it may be called the
beginning of imprisonment. Lamb. 95.
Concerning which I will show,
I. Who may or may not be arrested.

[29 C. 2. c. 7. $ 6.]
II. For what Causes of Suspicion an Arrest may be.

[34 Ed. 3. c. 1.]
III. By whom an Arrest shall be made.

[5 G. 4. c. 18. c. 83.-7 & 8 G. 4. c. 29. c. 30.]
IV. The Manner of an Arrest.

[29 C. 2. c.7.-24 G.2. c. 55. - 27 G. 2. c. 20. — 7 G. 4.

c. 64.]
V. What is to be done after the Arrest.

[23 H.6. c.9.–24 G. 2. c. 44.]

1. Who may or map not be arrested. Generally, a member of parliament shall have the privilege of parliament for himself and his servants to be freed from arrests ; but for treason, felony, and breach of the peace, there can be no privilege. 4 Inst. 24. 25. 1 Black. Com. 145.

Bodies corporate, acting in a way that would render an individual liable to arrest, cease to retain, of course, their corporate character, and become individually responsible.

In the case of R. v. Woodham, 2 Str. 828. upon a motion for an information against the defendant, who was a justice of the peace, it was holden that a person in execution in the K. B. may be there charged criminally by a justice of the peace's warrant;

Privilege of parliament.

Bodies corporate.

Persons charged in execution.

(a) Carter J. & Dennison J.

but that no such justice can take a prisoner of this court out of the custody of the court, and send him to the county gaol.

Also by stat. 29 C. 2. c. 7.9 6. a warrant executed against any 29 C. 2. c. 7. person whatsoever on the Lord's day, is void: and the persons On Sundays. serving the same shall answer damages, as if they had done the same without warrant; except in cases of treason, felony, or breach of the peace.

II. For what Causes of suspicion an arrest map be.

By the statute of 34 Ed. 3. c. 1. power is given to the justices Suspicion. of the peace, to arrest all those whom they find by indictment, or by suspicion, and to put them in prison.

The causes of suspicion, which are generally agreed to jus. Causes of sustify the arrest of an innocent person for felony, are these that picion. follow:

(1) The common fame of the country: but it seems, that it Common fame. ought to appear upon evidence, in an action brought for such arrest, that such fame had some probable ground. 2 Haw. c. 12. $9.

(2) Being found in such circumstances as induce a strong Circumstances presumption of guilt; as coming out of a house wherein murder of guilt. has been committed, with a bloody knife in one's hand; or being found in possession of any part of goods stolen, without being able to give a probable account of coming honestly by them. Ib. $ 12.

(3) The behaving one's self in such a manner as betrays a Flight. consciousness of guilt ; as where a man accused of felony, on hearing that a warrant is taken out against him, doth abscond. 1b. § 13.

But the party who flies from an arrest for a capital offence, is not thereby guilty of a capital offence, but only liable to forfeit his goods, when such flight is found against him by the coroner's inquest. 2 Haw. c. 17. § 13.

(+) The being found in company with one known to be an of. Evil company. fender, at the time of the offence, or generally at other times keeping company with persons of scandalous reputation. 2 Haw. c. 12. $ 11. 2 Inst. 52.

(5) The living an idle, vagrant, and disorderly life, without Living idle. having any visible means to support it. 2 Haw. c. 12. § 10.

A woman walking up and down the streets to pick up men, a night-walker, may be apprehended. Per Lawrence J., Lawrence v. Hedger, 3 Taunt. 15. post, p. 39. See stat. 5 G. 4. c. 83. § 3. & 6. post, tit. Uagrant. (6) The being pursued by hue and cry. 2 Haw. c. 12. $14.

Hue and cry. For if a felony is done, and one is pursued upon hue and cry, that is not of ill fame, suspicious, unknown, nor indicted, he may be attached and imprisoned by the law of the land. 2 Inst. 52. (7) But generally, no such cause of suspicion as any of the above Where no crime

is committed mentioned will justify an arrest by a private person, where in truth no such crime hath been committed; unless it be in the case of hue and cry. 2 Haw. c. 12. $ 16.

a peace officer

arrest on pro

has been com

Difference be

(8) In the case of Samuel v. Payne and others, Doug. 359. it tween arrest by was determined that a peace officer may justify an arrest on a

reasonable charge of felony, without a warrant, although it should and by a private afterwards appear that no felony had been committed: but that person,

a private individual in such a case cannot. Private persons

It is lawful for a private person to do any thing to prevent may prevent the the perpetration of a felony. Therefore, in a case where the de. commission of a fendants broke and entered the plaintiff's house to prevent him felony.

from murdering his wife, the court of C. P. held that they were justified. Per Chambre J., Handcock v. Baker and others, 2 Bos.

& Pull. 260. A constable Ledwith v. Catchpole, E. 23 G. 3. Cald. 291. This was an action may justify an of trespass and false imprisonment tried before Lord Mansfield

at Guildhall. The defendant was one of the marshalmen of the bable ground

lord mayor of London. The jury found a verdict for the plaintiff that a felony

with 201. damages. Upon motion for a new trial, Lord Mansfield mitted, although reported the evidence to have been: That one Smith, who had no positive lost some linens to a large amount, brought one Stevens to the charge be made. defendant, who said, that one Maddox had called a coach, and

put Smith's bale of goods into it at a public house; that the plaintiff put his head into the coach; that afterwards the coach stopped at another house, and that the plaintiff' met it there; that Smith, suspecting the plaintiff to have been concerned in the theft, from the circumstance of his having been twice so seen at the coach, took the defendant on a Sunday to the plaintiff for the purpose of having him apprehended; that when they came to him, neither Smith nor any other person charged the plaintiff with a felony; that Smith said, “ I have lost some cloth ; but I don't say that it was he who stole it; I know nothing of that, but stolen it was." The defendant, being asked by the plaintiff what authority he had to arrest him, produced a hanger, and said, “ That was his authority:" That he then did arrest the plaintiff, and took him to the Poultry Compter; from whence he was taken the next day before the sitting alderman, and discharged. — Buller J. I think, if we were to say that a constable is justifiable in this case, we should

go the length of saying that he is to some purposes a judicial officer, which is going further than has ever yet A constable is been adjudged. It would be to allow a constable to examine not a judicial witnesses, act upon their testimony, though he cannot administer officer.

an oath, and judicially to conclude whether there is or is not a reasonable ground of suspicion, and this might be attended with danger. Where a positive charge is made, the party making it is obliged to follow it up with a prosecution, or is himself liable to an action. In such case the constable is merely ministerial, and bound to take the party up, and carry him before a magistrate. The magistrate must then examine into the matter upon oath, which the constable cannot do. — Willes J. A felony is committed. The prisoner looked into the coach where the stolen goods were deposited at the time, and afterwards met the coach where it stopt. Then, called upon as the constable was to act, and under such strong circumstances of suspicion, I think it became his duty to act, and that there ought to be a new trial.Lord Mansfield. The question is, Whether a felony has been committed or not. And then the fundamental distinction is, that if a felony has actually been committed, a private person may, as

well as a peace officer, arrest; if not, the question always turns upon this, Was the arrest bond fide? was the act done fairly and Arrest made in pursuit of an offender, or by design, or malice and ill-will? bona fide, on Upon a highway robbery being committed, an alarm spread, and probable cause. particulars circulated, and, in the case of crimes still more serious, upon notice given to all the sea-ports, it would be a terrible thing, it under probable cause an arrest could not be made; and felons are usually taken up on descriptions in advertisements. Many an innocent man has been and may be taken up upon suspicion : but the mischief and inconvenience to the public in this point of view are comparatively nothing. It is of great consequence to the police of the country. I think there should be a new trial. Per Lord Mansfield and Willes J. — Rule absolute. — The new trial came on at the sittings after E. T. 23 G. 3., when a verdict was found for the defendant.

Guppy v. Brittlebank & Potter, E. 58 G. 3. 5 Price, 525. It Arrest without appears that an arrest may be made without warrant, if there be warrant, how sufficient matter of presumption of the party's guilt, and those far justified by circumstances may be pleaded in justification; as where a person

suspicion. of character paid away a forged note in the purchase of a horse at a fair, and on searching, another was found on him; at all events the Exchequer held the arrest so far justified by the circumstances, that they ought not to disturb a verdict found for the defendant. Bat in Beckwith v. Philby, 6 B. & C. 635., where plaintiff having been seen under suspicious circumstances, was arrested by defendant, a peace officer, and kept in custody a whole night, an action was brought for false imprisonment, and a verdict found for defendant on its being left to the jury, whether there was a probable cause of detention for felony; on motion for a new trial it was refused, and per Lord Tenterden C. J., — There is this distinction In felony, on between a private individual and a constable; the former must suspicion, a prinot only make out a reasonable cause of suspicion, but also vate person is that a felony has been actually committed; whereas, a constable not justified in liaving reasonable ground to suspect that a felony has been com.

arresting unless

a felony bas mitted may detain the party till inquiry can be made by the been actually proper authority. Now here the jury have found that the party committed. gave just cause for suspicion.

Where persons were discovered concealed in prosecutor's yard, Person detected having attempted to break open his stable: Held, that being attempting to detected in the night, attempting to commit a felony, they might commit a felony

at night. be lawfully detained without a warrant, till they could be carried before a magistrate. R. v. Hunt, R. & M. 93.' i Russ. 503.

If a peace officer receives a person into custody, on a charge, Peace officer preferred by another, of felony or breach of the peace, there he is arresting of his to be considered a mere conduit, and if no felony or breach of the own head, or peace was committed, the person who preferred the charge alone is receiving into answerable. Per Lord Ellenborough C. J. Hobbs Gent. one, &c. charge by anv. Branscomb, Drinkwater, and others. Sittings after T. T. 53 G.3. other. 3 Campb. 420.

The constable will be justified and protected in holding the Charge im. prisoner in custody, on a charge which imputes guilt to the party, puting guilt, but which is imperfectly expressed, as where it was for “having but imperfectly

expressed. forged notes in his possession,” without adding that lie “ knew them to be forged." E. T. 1817. R. v. Ford, C. C. K. 329. 1 Russ. 504.

« PreviousContinue »