has been perpetrated. The general rule may be laid down, that whenever the circumstances of the case would justify a private person in making an arrest without a warrant, they will equally justify a peace officer. That subject has already been discussed in the preceding section

We have now to inquire in what additional cases an officer may make an arrest without a warrant.

(a) First, as to felonies: There is this distinction between a private person and an officer: In order to justify the former in causing the imprisonment of a person, as we have already seen, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has been actually committed: whereas, the officer having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities.2 The offence of petit larceny is within the above rule as to felonies.3

It has sometimes been contended that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our National and State Constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under both. But Justice Dewey says1 those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath, they do not conflict with the authority of constables or other peace officers, or private persons, under proper limitations to arrest, without warrant, those who have committed felonies. The public safety and the due apprehension of criminals charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law. As to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested, and the arrest can only be justified by proving such guilt; but as to constables and other peace officers acting officially, the law clothes them with

1 2 Hawk, P. C., ch. 13, § 1.

Beckwith v. Philby, 6 Barn. & Cress, 638, per. Lord Tentenden. Vide Doug., 360, et 2 Car. & P., 361.

3

Carpenter v. Mills, 29 How., 473; Matter of Henry Id., 185. • Rohan v.

Sowin, 5 Cush., 285. See also 6 Binney, 318, 1 N. H., 54.

greater authority, and they are held to be justified, if they act in making the arrest upon probable and reasonable grounds, for believing the party guilty of a felony; and this is all that is necessary for them to show, in order to sustain a justification of an arrest for the purpose of detaining the party to await further proceedings under a complaint on oath and a warrant thereon.

A peace officer may, therefore, justify an arrest on a reasonable charge of felony without a warrant, although it should afterwards appear that no felony had been committed; but a private individual cannot. In the case of Beckwith v. Philby, cited above, it was attempted by the plaintiff to make an essential distinction between the rights of an officer, whether he acts upon his own suspicion, or upon the charge and accusation of another. It was admitted that in the latter case, it was his duty to make the arrest, and it is not incumbent upon him to prove the felony. But it was claimed that if he assumed to act upon his own suspicion, he then placed himself in the situation of any private citizen, and could justify himself only on proof that a felony had in fact been committed; but any such distinction was entirely negatived by the court, and it was there broadly laid down that a constable, having a reasonable cause to suspect that a felony has been committed, has authority to arrest the party suspected, although it afterwards appear that no felony had been committed; and numerous decisions fully sustain this principle in its entire extent.3 It has sometimes been urged that the officer should not be allowed to arrest in such cases, only where there is reason to suppose that the party accused would otherwise escape; but in one of those cases the court said, we do not find any authority for thus restricting an officer in the exercise of his authority to arrest for a felony without a warrant. The probability of an escape or not, if the party is not forthwith arrested, ought to have its proper effect upon the mind of the officer in deciding whether he will arrest without a warrant; but it is not a matter upon which a jury is to pass, in deciding upon the right of the officer to arrest. The question of reasonable necessity for an immediate arrest, in order to prevent the escape of the party charged with felony, is

'Samuel v. Payne, 1 Doug. R., 359; 1 East., 301; 2 Hale P. C., 83, 84, 89. 6 Barn. & Cress., 635.

⚫ 1 Leading Crim. Cases, p. 161, note.

✦ Davis v. Russell, 5 Bing., 359; Rohan v. Sawin, 5 Cush., 281.

one the officer must act upon under his official responsibility, and not a question to be reviewed elsewhere.1

But in order to justify an officer in arresting without a warrant on suspicion of guilt of any crime, the crime supposed to have been committed must in law amount to a technical felony."

4

(b) As to misdemeanors, we have already seen3 that a private person has no right to arrest a party without a warrant for the commission of a misdemeanor, after the offence has been perpetrated; but whether a peace officer is warranted in arresting a person after a breach of the peace has been committed, is a point which has occasioned some doubt. There are some authorities to the effect that the officer may arrest the party on the charge of another, though the affray is over, for the purpose of bringing him before a justice to find security for his appearance; but the better opinion was always said to be the other way.5 In case of an affray where the same was in the view of the officer, he may arrest immediately afterwards; but in such case no delay whatever should be made in making the arrest ; and an arrest two hours after an assault has been held illegal. In a note to the case of Strong v. Blanchard, cited above, it is stated that to justify the arrest, without a warrant, for a misdemeanor, the officer must have viewed the offence, unless to prevent a probable felony.

9

8

In Rex v. Light, the defendant was convicted on an indictment charging him with assaulting a constable in the execution of his duty. It appeared that the constable, while standing outside the defendant's house, saw him take up a shovel and hold it in a threatening attitude over his wife's head, and heard him at the same time say: "If it was not for the policeman outside, I would split your head open." About twenty minutes after, the defendant left the house, saying that he would leave his house alto

5 Cush. R., 281.

* R. v. Thompson, 1 Mood. C. C., 88, 132; 5 Exchr., 378; Russ & Ry. C. C., 329.

• Ante.

2 Hale P. C., 90; 1 East. P. C., 306, (n.)

Ros. Cr. Ev., 242; 1 East. P. C., 305; 2 Hawk. ch., 12, § 30; 1 Russ. by Grea., 601; 1 C. M. & R., 757; R. v. Walker, 1 Dears. C. C. R., 358; 2 Espinasse, 539; Cro. Eliz., 375; 4 C. & P., 387; 25 Eng. L. & Eq., 589.

Strong v. Blanchard, 3 Wend., 384.

7 R. v. Walker, supra.

8 3 Wend., 384.

• Dears. & B. C. C., 332.

gether, and he was then taken into custody by the policeman, who had no warrant. It was on this apprehension that the assault took place, and it was held that the policeman was justified in apprehending the defendant, and that the conviction was right.1

(c) Independent of the above powers given by the common law to officers to arrest without warrant, our statutes make it the duty of peace officers to arrest various persons when required so to do by any person. Among this class of persons may be named beggars, vagrants and others, of whom more particular mention will be made hereafter, in treating of the summary conviction of offenders before magistrates.2

SECTION III.

OF THE ARREST BY OFFICERS WITH A WARRANT.

The following general rule may be laid down as applicable to this class of cases, viz.: If the magistrate has jurisdiction of the subject matter of the complaint, and the warrant be lawful and regular on its face, the officer is protected; for an arrest under it, though it be voidable for some error, irregularity or mistake, in some preliminary proceedings, and so if the want of jurisdic tion be only as to the person or place, and that does not appear on the process; but if the magistrate has no jurisdiction of the subject matter then, every thing done is absolutely void, and the officer is a trespasser.3

In a leading case upon this subject in this State, and which has been followed in several subseqent cases, Marcy, J., said the following propositions, I am disposed to believe, will be found to be well sustained by reason and authority:

That where an inferior court has not jurisdiction of the subject matter, or having it, has not jurisdiction of the person of the defendant, all its proceedings are absolutely void. Neither the members of the court, nor the plaintiff (if he procured or assented

1 1 Ros. Cr. Ev., 242; vide, Baynes v. Brewster, 11 L. J. M. C., 5. • Vide post.

1 Lead. Cr. Cases, 180, note; Bull, Nisi Prius, 83; 10 Coke, 68; 2 Strange, 711-1002; 2 Wilson, 275-384; 2 Florida, 171; 11 Conn., 95; 4 Id., 107.

to the proceedings), can derive any protection from them, when prosecuted by a party aggrieved thereby.

If a mere ministerial officer executes any process, upon the face of which it appears, that the court which issued it had not jurisdiction of the subject matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it.1

It being the rule that the officer must decide at his peril, whether the court had general jurisdiction over the subject matter, and that in order to decide this question, he may be governed by knowledge or evidence, obtained aliunde from his precept. It is equally true that if the want of jurisdiction be only as to the person, place or process, such want of jurisdiction must appear on the process, or the officer is shielded by its protection. A ministerial officer is protected in the execution of process, regular and legal on its face, though he has knowledge of facts rendering it void for want of jurisdiction.3

And a warrant, which is a protection to the officer, is also a protection of those who come to his aid."

A warrant for the arrest of a criminal offender, issued under 2 Revised Statutes, 706, under which he has been arrested, and has been discharged on giving recognizance, cannot authorize a second arrest, though the recognizance is void. The warrant is spent by the first arrest.5

So, also, an arrest is illegal when made by a constable of one county, upon the unindorsed warrant of a justice of the peace in another county.

Besides the warrants issued for the apprehension of offenders by certain magistrates and other officers, as specified in subsequent chapters of this volume, the Boards of Health, created by acts of the Legislature, have power to issue warrants in certain cases."

Savacool v. Boughton, 5 Wend., 171; 12 Wend., 496, 6 Id., 367; 2 Com., 473; 3 Barb., 19.

1 Lead Cr. Cas., 182, note; 5 Wend., 170; 12 Vermont, 661; 1 Gilman, 401; 1 Richardson, 147.

Peo. v. Warren, 5 Hill, 440, 9 Conn., 140; 24 Wend., 485.

• Doolittle v. Doolittle, 31 Barb., 312.

6

Doyle v. Russell, 30 Barb., 300; disapproving, 6 Hill, 349.

Peo. v. Shafer, 4 Park., 45.

* Laws 1850, ch. 324; Laws 1866, ch. 74, § 14.