§ 176. To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a dwelling-house, if, after notice of his office and purpose, he be refused admittance.

§ 177. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterwards appear that a felony had not been committed.

178. When arresting a person without a warrant the officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a public offence, or is pursued immediately after an escape.

$179. He may take before a magistrate, a person, who, being engaged in a breach of the peace, is arrested by a by-stander and delivered to him.

§180. When a public offence is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.

CHAPTER V.

ARREST BY A PRIVATE PERSON.

SECTION 181.

In what cases allowed.

182.

183.

Must inform the party of the cause of arrest, except when actually committing the offence or on pursuit after escape.

May break opeu a door or window, if admittance refused.

184. Must immediately take prisoner before a magistrate, or deliver him to a peace officer.

§ 181. A private person may arrest another,

1. For a public offence, 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 been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

§ 182. He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commission of the offence, or when he is arrested on pursuit immediately after its commission.

§ 183. If the person to be arrested have committed a felony, and a private person, after notice of his intention to make the arrest, be refused admittance, he may break open an outer or inner door or window of a dwelling house, for the purpose of making the arrest.

§ 184. A private person, who has arrested another for the commission of a public offence, must, without un

necessary delay, take him before a magistrate, or deliver him to a peace officer.

CHAPTER VI.

RE-TAKING, AFTER AN ESCAPE OR RESCUE.

SECTION 185. May be at any time, or in any place in the state.

186. May break open a door or window, if admittance refused.

§ 185. If a person arrested, escape or be rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him, at any time, and in any place in the state.

§ 186. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a dwelling house.

CAAPTER VII.

EXAMINATION OF THE CASE, AND DISCHARGE

OR HOLDING HIM TO ANSWER.

OF THE DEFENDANT

SECTION 187. Magistrate to inform defendant of the charge, and his right to

counsel.

188. Time to send, and sending for counsel.

189. On appearance of counsel, or waiting for him a reasonable time,

examination to proceed.

190. When to be completed. Adjournment.

191. On adjournment, defendant to he committed, or discharged on de

posit of money.

192. Form of commitment.

193. Depositions, to be read on examination, and witnesses examined.

194. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf.

195. Defendant to be informed of his right to make a statement.

196. Waiver of his right, and its effect.

197, 138. Statement, how taken.

199. How reduced to writing, and authenticated.

200. After statement or waiver, defendant's witnesses to be examined. 201. Witnesses to be kept apart.

202. Who may be present at examination.

203. Testimony, how taken and authenticated.

204. Depositions and statement, how and by whom kept.

205. Violation of last section, a misdemeanor.

206. Defendant entitled to copies of depositions and statement. 207. Defendant, when and how to be discharged.

208. When and how to be committed.

209. Order for commitment.

210. Certificate of bail being taken.

211. Order for bail, on commitment.

212, 213. Form of commitment.

214. Undertaking of witnesses to appear, when and how taken. 215. Security for appearance of witnesses, when and how required. 216. Infants and married women may be required to give security for

appearance as witnesses.

217. Witness to be committed, on refusal to give security for ap

peurance.

218. Witness, unable to give security, may be conditionally examined. 219. Last section not applicable to prosecutor or accomplice.

220. Magistrate to return depositions, statement and undertakings of witnesses, to the court.

The subject embraced in this chapter has engaged the most anxious attention of the Commissioners. The existing practice in relation to it admits of great and essential improvement, not merely in its details, but in is principles. By that practice, the magistrate is required, upon the defendant being brought before him, to summon the witnesses on whose oath the warrant is founded, and to proceed to examine them in the presence of the defendant. He is then to take the examination of the defendant, after cautioning him that he is not bound to answer; and after the examination, he is to take the testimony of any witnesses whom the defendant may produce. Upon the completion of this proceeding, he is to decide whether there is sufficient cause to hold the defendant to answer, and to commit or discharge accordingly. 2 R. S. 793– 795, Sec. 2-22.

An examination of the statutory provisions upon this subject, now in force, and a close observation of the course of practice under them, have convinced the commissioners of the necessity of some safeguards, which the law has not yet provided, being thrown around the rights of the defendant. While they are aware that many undue means have been afforded by the technicalities of the law, and in some instances by the laxness with which it has been administered,-evils for which they have endeavored to provide an adequate remedy,—they have resolved in this, as in other respects, to recommend the adoption of such proivsions as will protect the substantial rights

of a party accused of crime. It is one of the proudest attributes of the system under which we live, and of the constitution by which the blessings of life, liberty and property are guaranteed, that no matter what may be the enormity of his crime,—no matter how great the intensity of public excitement against him,-no matter how abject or degraded he may be, the life and liberty of the citizen are protected until they are forfeited by due process of law. It is no less true, that punishment derives its moral force, not so much from its severity, as from the certainty that it has been inflicted in compliance with the spirit of those institutions, and after every opportunity has been afforded to the accused, of defending himself by those means which the law has given for the protection of the innocent. The theory of our law is, that every man is presumed innocent until the contrary is established; and any portion of our system which assumes a contrary principle, demands prompt and immediate correction.

To no portion of the subjects referred to in this report, do these remarks apply with greater force, than to the initiatory proceedings for the ascertainment of the defendant's guilt. In the proceedings after his commitment, and upon his trial, his instincts teach him to seek the aid of those whose profession and experience may ensure the protection of his rights. But in the early stages of the accusation,-when he is hurried before a magistrate upon a charge of which he may be innocent, and of which, even if it be otherwise, the law has not yet adjudged him guilty, the first dictate of duty seems to be, to inform him of his rights, and to afford him every opportunity to throw around himself the protection of the law. And yet, according to the existing system of practice, upon the idle fiction that every man is presumed to know the law, he is supposed to be informed of the first right securred to him by the constitution,-that of appearing and defending himself by counsel. If he happen to be ignorant of this, the examination of the case proceeds, and testimony is taken against him, which may be illegal in its character, or which, without the substantial opportunity for a cross examination, may in some contingencies be used against him on his trial.

Against this prejudice the Commissioners propose to guard, by requiring the magistrate to inform the defendant of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had, to allow the de