CHAPTER III. ARREST BY AN OFFICER, UNDER A WARRANT. SECTION 165. Arrest, defined. 166. By whom an arrest may be made. 167. Every person bound to aid an officer in an arrest. 168. When the arrest may be made. 169. How an arrest is made. 170. No further restraint allowed, than is necessary to arrest and de tention of defendant. 171. Officer must state his authority, and show warrant, if required. 172. If defendant flee or resist, officer may use all necessary means to effect arrest. 173, 174. When officer may break open a door or window. The provisions of this chapter, and of chapters 4, 5 and 6, which follow, are intended to define the rights and duties, as well of public officers as of private citizens, in the arrest with or without a warrant, of persons charged with crime. In re spect to this it may be remarked, as has been already done in reference to the right of lawful resistance to the commission of an offence, p. 36, 37, that they have been hitherto left wholly unregulated by positive or written law. If, in the one case, a system of appropriate regulation might have been excusably omitted, the Commissioners do not well see, with what propriety they could have overlooked its introduction, in respect to this branch of duty. The good order of society requires, in order that crime may be detected and punished, that the arrest of criminals should in all cases be justified, where, but for the existence of a well defined right, it would elude both detection and punishment. It is upon this great principle, that the rules of the common law, by which the extent of this right have been defined, are established. If it could be reasonably supposed, that in the thousand emergencies which arise, the public officer or the citizen was so well versed in those principles, as to be able safely to apply them, there would be no necessity for legislation. But when it is remembered, that in all these cases he acts at the peril of a lawful resistance, even to the extent of taking his life by the party arrested, or of the consequences of a civil action, where he has transcended his powers, the duty of the legislature, clearly to define them, would seem to be beyond dispute. It is a case of no unfrequent occurrence, that in the attempted arrest of a public offender, the citizen, who incurs great risk for the vindication of the law, is subjected to consequences like these; and the books are not barren of cases where the sacrifice of the life of an innocent person, acting under a mistaken but honest view of his duty, has been successfully defended, on the ground that he had transcended his authority. It may be true, that the common law sufficiently defines it; but it is equally true, that the sources of that law are hidden from the view of those who are most frequently called upon to exercise the power in question; and it is for the legislature to determine, whether it should be left in uncertainty and doubt, when by a few well timed enactments, the evil can be so easily remedied. The importance of this subject was not overlooked by Mr. Livingston, in his report of a criminal code, already referred to; and the Commissioners cannot forbear quoting the forcible and eloquent remarks with which he urges upon the legislature, the important and solemn duty of clear and distinct legislation upon this subject. "Officers of justice," says he, "often uneducated and overbearing men, either do not know, or designedly exceed the bounds of their authority. The accused sometimes submits to illegal acts; at others, resists those to which he ought to submit. The citizen, when legally called on to enforce the execution of the law, refuses to obey, or makes himself liable to a prosecution, for aiding in an illegal arrest; and it is believed that of all the cases of murder, manslaughter, violent assault and false imprisonment, reported in the books, no inconsiderable proportion will be found to have arisen from ignorance of rights and duties in granting warrants, in making arrests or resisting them-ignorance inevitable, from the state of our laws; for where, (it is asked on this, as it has been on former occasions,) where is the necessary information to be obtained? The written law is silent; the oracles who pronounce that which is unwritten, only speak when the case has already happened; and the unfortunate citizen, called on to act or suffer at a moment's warning, is forced to do it at his own risk; for those to whom he has confided the care of framing rules for his government, have hitherto obstinately refused, or negligently omitted to dictate them. It is time that this duty should be done it is more than time that this reproach should be taken away from our legislation. You declare that every man who kills an officer in the legal discharge of his duty, is guilty of murder, and shall suffer death. You say that resistance to an unlawful arrest is justifiable; and you cruelly and wantonly refuse to explain what is a lawful and which an unlawful arrest. You refer to the contradictory and confused decisions of courts in a foreign country, for information on this all-important point. Do you understand those laws? Are they clear?-Deign then to clothe them in the words of legislative authority: publish them to your constituents. Are the cases contradictory ?-Tell us which of them is the law. Are they confused and uncertain ?— Explain them. Do you not understand them yourselves ?— Then how should we your constituents be guided by them, in matters too on which depend life or death? If the rules now offerered are not approved, frame others. When obedience is exacted, under such a sanction, the least the people can require, is to be clearly and explicitely told what it is. they are to obey. I feel that I am repeating here, ideas that have been more than once expressed, and that I am urging former arguments with a zeal that may be deemed indiscreet, and, I hope, is unnecessary; but I have a great, a holy duty to perform, and I dare not leave any part of it undone, from the fear of giving offence, or the hope of conciliating favor, much less that of gaining applause." Liv. Crim. Code, p. 211, 212. The importance of this subject has been felt, and the necessity of legislation upon it admitted, by high legal authority in England. In the eighth report of the Commissioners on Criminal Law, (p. 43-48,) no less than thirty-one articles have been devoted to detailed provisions on the subject of arrests by constables and private persons without a warrant ; and in their notes to the provisions recommended by them, they have collected a body of common law authority, the extent of which, of itself, by showing the utter impossibility of its being brought within the reach of the officer and the citizen, proves the necessity of its being compressed into a few plain and intelligible directions. § 165. Arrest is the taking of a person into custody, that he may be held to answer for a public offence. § 166. An arrest may be either, 1. By a peace officer, under a warrant; 2. By a peace officer, without a warrant: or 3. By a private person. § 167. Every person must aid an officer in the execution of a warrant, if the officer require his aid and be present and acting in its execution. § 168. If the offence charged be a felony, the arrest may be made on any day, and at any time of the day or night. If it be a misdemeanor, the arrest cannot be made on Sunday, or at night, unless upon the direction of the magistrate endorsed upon the warrant. § 169. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. § 170. The defendant is not to be subjected to any more restraint, than is necessary for his arrest and detention. § 171. The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant, if required. § 172. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest. § 173. The officer may break open an outer or inner door or window of a dwelling-house, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance. § 174. An officer may break open an outer or inner door or window of a dwelling house, for the purpose of liberating a person, who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation. CHAPTER IV. ARREST BY AN OFFICER, WITHOUT A WARRANT. SECTION 175. In what cases allowed. 176. May break open a door or window, if a 'mittance refused. 179. May take before a magistrate, a person arrested by a by-stander, 180. Magistrate may commit by verbal or written order, for offences committed in his presence. 175. A peace officer may, without a warrant, arrest a person, 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 in fact been committed, and he has reasonable cause for believing the person arrested to have committed it: 4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested. |