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is neither known nor describable by person, clothes, or the like, yet such a hue and cry is good and must be pursued, though no person certain be named or described. Therefore, in such a case, all that can be done is, for those that pursue the hue and cry, to take such persons as they have probable cause to suspect; as, for instance, such persons as are vagrants, or such suspicious persons as come late into their inn or lodgings and give no reasonable account where they have been, and the like. 2 Hale, 103.
If the person pursued by hue and cry be in a house, and the doors are shut and refused to be opened on demand of the constable and notification of his business, he may break open the doors, and this he may do in any case where he may arrest, though it be only a suspicion of felony; for it is for the people, and, therefore, a virtual non omiltas is in the case. 2 Hale, 120.
And, upon hue and cry levied against any person, or where any hue and cry comes to a constable, whether the
be certain or uncertain, the constable may search suspected places for the apprehending of the felons. 2 Hale, 103. But, though he may search suspected places or houses, yet his entry must be by the doors, being open, for he cannot break open doors barely to searchi, unless the person against whom the hue and cry is levied be there, and then, it is true, he may. Therefore, in case of such a search, the breaking open the doors is at his peril; namely, justifiable, if he be there; not justifiable, if he be not there. But it must be always remembered that, in case of breaking open a door, there must be first a notice given to them within of his business, and a demand of entrance, and a refusal, before the doors can be broken. 2 Hawk., 86. 2 Burn's Justice, 651.
And it seems that, where a felon is pursued, if he cannot be otherwise taken, he may be killed, and the necessity excuseth the constable. But if any of the pursuers be killed by the party flying, this will be murder. 2 Hale, 100. Foster, 271.
It is clear (Mr. Chitty says) that, when once hue and cry is commenced, those who join will be protected, even though it should ultimately appear that no felony has been committed ; and the reasons for this are evident, because the constable cannot examine on oath as to the truth of the statement, and the nature of the proceeding requires the utmost promptitude, because officers are punishable if they neglect to observe it, and because he who, without cause, set it on foot, is punishable by fine and imprisonment for the disturbance he has occasioned. 1 Chit. Crim. Law, 29. And so it is if a person raise hue and cry upon a person that is innocent. Those that pursue the hue and cry may justify the imprisonment of that innocent person, and the raiser is punishable. 2 Hale, 103. 2 Burn's Justice, 653.
Arrest upon hue and cry differs from arrest upon mere
suspicion. In the latter case, it is necessary to aver, in justifying, that a crime was committed, and that fact may be put in issue; whereas, in the former case, no such allegation is necessary, nor is it even stated in pleading. 1 Chit. Crim. Law, 29. 2 Hale, 101.
In short, this proceeding arms all persons with the same authority as a warrant gives to the party to whom it is directed. They are not answerable for the propriety of the cry itself, but only for the regularity of their own conduct when acting under it. i Chit. Crim. Law, 29.
OF THE EXAMINATION.
We have seen that it is the duty of the officer making the arrest to bring the party accused, within a reasonable time after the arrest, before the proper magistrate, that the case may be examined and the party, after due investigation, either discharged, bailed, or committed. It then becomes the duty of the justice to take and complete the examination of all concerned, and to discharge, bail, or commit the prisoner, as soon as the nature of the case will permit; but he is allowed a reasonable time for this purpose before he makes his final decision. 1 Chit. Crim. Law, 73.
If, by some reasonable occasion, the justice cannot, at the return of the warrant, take examination, he may, by word of mouth, command the constable, or other person, to detain in custody the prisoner till the next day, and then to bring him before the justice for further examination. And this detainer is justifiable by the constable or any other person, without showing the particular cause for which he was to be examined, or any warrant in writing. 1 Hale, 585. It is usual, however, when the party is detained for examination or re-examination till another day, to make out a written warrant for that purpose, which need not state the crime of which the party is accused. 1 Chil. Crim. Law, 73.
The examination of the party must be had within a reasonable time, 1 Chit. Crim. Law, 73, and the detainer must be no longer than necessary for such purpose, for which it seems to have been formerly supposed that the space of three days is a reasonable time. 1 Burn's Justice, 556. Lord Ilale says
that the time of detainer must be reasonable, but adds that a justice cannot justify the detainer of a person sixteen or eighteen days in order to an examination. i Hale, 585. It is said to be the practice in England, at the present day, to commit from three days to three days by written mittimus, though, when the prisoner is remanded for a single day, it may be done by parol. 1 Chit. Crim. Law, 74. But there appears to be no precise limitation of the time, which must depend on the circumstances of each particular case; and, in the practice of the best regulated police offices, there are many instances of prisoners being detained much more than twenty days between their first being brought before a justice and their commitment for their trial, and being brought up for examination several different days during the interval. i Chit. Crim. Law, 73. There is no limitation as to the time within which the examination shall be had, prescribed by the statute of this state.
Mr. Chitty says, It seems more reasonable that the time for the full investigation of the case and final decision of the magistrate should depend on the circumstances of each case, than that he should be restricted to any particular time, as a general rule; for either the prisoner or the accuser may be unable to bring forward his evidence immediately, and the compelling the magistrate to discharge or commit within any limited time might be prejudicial to the purposes of justice. 1 Chit. Crim. Law, 74.
It has been said that the magistrate ought not to detain the party in prison in his own house, but to send him to the common jail of the county ; for, otherwise, when the justices come to deliver the jail, he is not in the jail and may not be delivered, and so shall lie longer than is reasonable. Cro. Eliz., 830. This reason seems to be unsatisfactory, for it is presumed that the magistrate will complete the examination as soon as the circumstances of the case and his duty will permit. If this is done before the judge of the circuit comes to deliver the jail, and the justice orders the prisoner to be commited for trial, he will, in that case, as a matter of course, commit him to the county jail, where the judge of the circuit, who comes to deliver it, will find him. If the examination cannot be completed before the judge comes for that purpose, the magistrate need not be compelled to proceed in the examination on that account, before his duty and the circumstances of the prisoner require it. And no other inconvenience can result from allowing the magistrate a reasonable time to complete his examination, than that the prisoner will be held to appear and answer, at a subsequent term of the court, in case the magistrate finally decides not to discharge him. And there may be cases in which a magistrate would be extremely unwilling to commit the party accused to the county jail during the interval of his examination, when he might be kept in safe cus
tody, either in his own house or elsewhere. Davis' Justice, 57. For these reasons, it is probable that the rule has been laid down that, because it may be unreasonable to take the examination presently, or, possibly, it may take longer time, the prisoner may be continued in the custody of the officer, or may be detained in the justice's house, or committed to some near, safe place of custody till the final examination can be taken or completed. 2 Hale, 120. 1 Chit. Crim. Law, 74.
When the examination takes place before a justice residing in the vicinity of the county jail, it is convenient, and would, perhaps, be proper, that the prisoner should be committed to the county jail, when the examination cannot be taken or completed immediately; but it seems that, when the jail is at an inconvenient distance from the place of examination, the prisoner may be ordered into, and kept in the custody of, the officer in any other safe and convenient place, and this appears to be the usual practice. And, after the magistrate has determined on committing, he may verbally authorize the officer to detain the prisoner till he can make out the mittimus. 2 Hale, 122.
Upon the arrest of any person or persons charged with having committed any criminal offence in this state, being brought before any judge or justice of the peace, before he shall commit such prisoner to jail, admit to bail, or discharge him or her from custody, he shall inquire into the truth or probability of the charge exhibited against such prisoner or prisoners, by the oath of all witnesses attending, and shall, upon consideration of the facts and circumstances then proved, either commit such person or persons so charged, to jail, admit him, or her, or them to bail, or discharge him, her, or them from custody. And, in all cases where the charge is for sodomy, rape, arson, burglary, robbery, forgery, or counterfeiting, it shall be the duty of any justice of the peace, whenever any person or persons shall be brought before him, for the same or either of them, to associate with himself some neighboring justice of the peace previous to the examination of the witnesses, and they two shall have power to bail such prisoner or prisoners, or commit him, her, or them to jail, in case no good and sufficient bail is offered, or discharge the prisoner or prisoners, according to the proof that is adduced, and the law arising thereon. Gale's Stat., 238.
The justice of the peace having authority to examine into the nature and circumstances of a criminal charge against an offender, has, also, a power as incident to his authority, to bring before him all persons who appear, from the oath of the complainant, or from the magistrate's own knowledge, to be material witnesses for the prosecution, and for this purpose may issue his warrant directed to a proper officer, requiring him to cause such witnesses to come before him and give evidence. Dalt. Justice, 542. If a witness refuse to attend, he may be brought by the officer before the magistrate. 1 Chit. Crim. Law, 76.
It appears that, formerly, by the common law, if a felony is committed and one is brought before a justice upon suspicion thereof, and the justice finds, upon examination, that the prisoner is not guilty, yet the justice shall not discharge him, but he must either be bailed or committed; for it is not fit that a man once arrested and charged with felony or suspicion thereof, should be delivered upon any man's discretion, without farther trial. 1 Burn's Justice, 556. And, upon preliminary examinations upon charges of indictable felonies or misdemeanors, it seems that it was not customary to allow the accused the assistance of counsel, and, although it was sometimes allowed, it could not be claimed as of right, 10 B. &. Cres., 237, for the reason that it might impede the course of justice to allow counsel to attend and make objections. The reasons assigned for refusing a party accused of a crime the assistance of counsel, and for requiring the justice to bail or commit the prisoner although it may appear that he is not guilty of the offence charged, were probably deemed sufficient at the time those rules were adopted; yet, in England, they seem now to be very much questioned. Under these rules, very little discretion was allowed to a magistrate, and, however unfounded might have been the complaint, and however unjust and oppressive the prosecution might appear to the magistrate, he had no discretion to discharge, but must bail or commit the prisoner. And, as counsel was not allowed to any prisoner accused of a crime, so neither was he allowed to exculpate himself by the testimony of witnesses. And the same rules seem to have been observed upon the trial till the time of Mary I., who, when she appointed Sir Richard Morgan chief justice of the common pleas, enjoined him that, notwithstanding the old error which did not admit any witness to speak or any other matter to be heard in favor of the adversary, her majesty being party, her highness' pleasure was, that whatsoever could be brought in favor of the subject should be admitted to be heard, and, moreover, that the justices should not pursuade themselves to sit in judgment otherwise for her highness than for her subject. And in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was gradually introduced of examining witnesses for the prisoner, but not upon oath, the consequence of which still was that the jury gave less credit to the prisoner's evidence than to that produced by the crown. Sir Edward Coke protests very strongly against this tyranical practice, declaring that he never read in any act of parliament, or bookcase, or record, that, in criminal cases, the party accused should not have witnesses sworn for him, and, therefore, there was not so much as a spark of right against it. And it is now provided by statute that all witnesses for the prisoner should