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 notice given to them within of his business, and a demand of entrance and refusal, before the doors can be broken. 2 H. H. 103. 2 Haw. 80. If the person against whom the hue and cry is raised be not found in the constablewick, then the constable shall give notice to the next constable, and to the next, until the offender be found, or until they come to the sea side. And this was the law before the conquest. 3 Inst. 116. And the officer of the town where the felony was done, as also every officer to whom the hue and cry shall afterwards come, ought to send to every other town round about him, and not to one town only. And in such cases it is needful to give notice in writing (to the pursuers) of the things stolen, and of the colour and marks thereof, as also to describe the person of the felon, his apparel, horse, and the like, and which way he is gone, if it may be. Dalt. c. 54. But if the hue and cry be upon a robbery, burglary, manslaughter, or other felony committed, but the person that did the fact is neither known nor describable by person, clothes, or the like, yet such a hue and cry is good, as hath been said, and must be pursued, though no person certain be named or described. 2 H. H. 103. And therefore, in this 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. Ibid. 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 commonwealth, and therefore a virtual non omittas is in the case: and the same law is, upon a dangerous wound given, and a hue and cry levied upon the offender. 2 H. H. 102. And it seems, in this case, that if he cannot be otherwise taken, he may be killed; and the necessity excuseth the constable. 2 H. H. 102. If hue and cry be raised against a person certain for felony, though possibly he is innocent; yet the constables, and those that follow the hue and cry, may arrest and imprison him in the common jail, or carry him to a justice of the peace, to be examined where he was at the time of the felony committed, and the like. Ibid. If the hue and cry be not against the person certain, but by description of his stature, person, clothes, horse, and the like; yet the hue and cry doth justify the constable or other person following it, in apprehending the person so described, whether innocent or guilty; for that is his warrant; it is a kind of process that the law allows of, not usual in other cases, namely, to arrest a person by description. Ibid. 103. In case of hue and cry once rasied and levied, on supposal of a felony committed, though in truth there was no felony committed, yet those that pursue hue and cry, may arrest and proceed, as if so be a felony had been really committed. And therefore the justification of an imprisonment by a person upon suspicion, and by a person (especially a constable) upon hue and cry levied, do extremely differ, for in the former case, there must be a felony averred to be done, and it is issuable; but in the latter, to wit, upon hue and cry, it need not be averred, but the hue and cry levied upon information of a felony is sufficient, though perchance the information were false. And the reasons hereof are these. 1. Because the constable cannot examine the truth or falsehood of the suggestion of him that first levied it, for he cannot administer to him an oath; and if he should forbear his pursuit of the hue and cry till it be examined by a justice of the peace, the felon might escape, and the pursuit might be lost and fruitless. 2. Because the constable is compellable to pursue hue and cry, and he is punishable, and so are those of the vill, if they do it not. 3. Because he that first raised a hue and cry, where no felony is committed, that is, he who giveth the false information, is severely punishable by fine and imprisonment, if the information be false. And therefore, if he raise hue and cry upon a person that is innocent, yet they that pursue the hue and cry may justify the imprisonment of that innocent person; and the raiser is punishable: and by the same reason, if he give notice of a felony committed, where there was in truth none. And here the justification of the imprisonment is mixed, partly upon the hue and cry, and partly upon their own suspicion; and therefore, 1. In respect that it is upon hue and cry, there needs no averment that the felony was done, if the arrest be by that constable that first received the information, and so raised the hue and cry; or if the arrest were made by that constable, or those vills, to whom the hue and cry came at the second hand, it must be averred that such a hue and cry came to them, purporting such a felony to be done. 2. But also, inasmuch as the hue and cry neither names nor describes the person of the felon, but only the felony committed, and therefore the arrest of this or that particular person is left to the suspicion and discretion of the constable, or of the people of the second or third vill, he that arrests any person upon such general hue and cry must aver, that he suspected, and shew a reasonable cause of suspicion. 2 Hale 101, 102, 103, 104. "In like manner hue and cry shall be levied for all murders, burglaries, and for men slain, or in peril to be slain, and all shall follow the hue and steps, as near as can be, and he that doth not shall be amerced at the discretion of a jury." 1 Rev. Code, 126, sect. 18. See also, 1 vol. Stat. at Large, p. 483, the ancient method of apprehending run-away servants, in Virginia, by hue and cry. The most usual, and indeed the safest method of proceeding, on raising hue and cry, is to go before a magistrate, and to give him information of the felony upon oath; who should thereupon take the examination in writing, before he issues his warrant. Examination. county, to wit: of the said county of The examination of taken upon oath, before me, JP, a justice of the peace for the said county, this day of in the year The said that &c. (here set forth the substance of the information.) Sworn to before me saith (A) Warrant levying hue and cry on a robbery having been committed. To all constables and other officers, as well in the said county of as elsewhere, to whom the exccution hereof doth belong. Whereas A I, of yeoman, hath this day made information, upon oath, before me, JP, one of the justices of the peace in and for the said county of day of in the county of in the year that on this betwixt the hours present of three and four in the afternoon of the same day, at a place called in the said county of in the highway there, two malefactors and felons, to him the said AI unknown, in and upon him the said A I, then and there being in the peace of God and of the commonwealth, feloniously did make an assault, and him the said A I then and there feloniously did put in great fear and danger of his life; and the sum of of lawful money of this commonwealth, of the goods and chattels of him the said A I, from the person and against the will of him the said A 1, then and there violently and feloniously did steal, take and carry away; and that one of the said malefactors and felons, to him the said AI unknown, is a tall strong man, and seemeth to be about the age of years, is pitted in the face with the small pox, and hath the scar of a wound under his left eye, and had then on a dark brown riding coat, &c. and did ride upon a bay gelding, with a star on his forehead; and the other, &c. and that after the said felony and robbery committed, they, the said malefactors and felons, to him the said A I unknown, did fly, and withdraw themselves to places unknown, and are not yet apprehended. These therefore are to command you forthwith to raise the power of the county within your several precincts, and to make diligent search therein for the persons above described, and to make fresh pursuit and hue and cry after them, from town to town, and from county to county, as well by horsemen as by footmen; and to give due notice hereof in writing, describing in such notice the persons and the offence aforesaid, unto every next constable on every side, until they shall come to the sea shore; or until the said malefactors and felons shall be apprehended; and all persons whom you or any of you shall, as well upon such search and pursuit, as otherwise, apprehend or cause to be apprehended, as justly suspected for having committed the said robbery and felony, that you do carry forthwith, to one of the justices of the peace in and for the county where he or they shall be apprehended, to be by such justice examined, and dealt withal according to law. And hereof fail you not respectively, upon the peril that shall ensue thereon. Given unthe day of As this process, by hue and cry, to apprehend an offender, is scarcely ever used in this commonwealth, in the mode prescribed by the common law, it will be sufficient to refer to title CRIMINALS, where the necessary precedents may be found. It may, however, be proper to observe, that should an offender be brought before a magistrate, who was taken by hue and cry, he must proceed in all things as directed under title CRIMINALS, observing to vary the style of his precedents, as in the following Mittimus. To the sheriff or keeper, &c. county, to wit: I send you herewith the body of A O, late of taken by hue and cry, upon warrant of J P, a justice of the peace of the county and brought before me, by A C, constable of the of said A O, being charged, &c. (describe the offence as in the warrant, and conclude as in other mittimus.) HUNTING. If any person shall shoot, hunt, or range on the lands, or fish or fowl in any creeks or waters, included within the bounds of another, without licence from the owner, the offender shall forfeit three dollars for each offence, recoverable, with costs, before any justice of the county, to the use of the informer; in which information the confession of the accused, or the oath of one credible witness, shall be sufficient evidence. And where the owner shall prosecute, his oath shall be sufficient evidence to convict the offender; but in that case, the penalty shall go to the overseers of the poor of the district; and, moreover, the offender shall be liable to the action of the party grieved, at the common law, for damages. 1 Rev. Code, p. 152, sect. 1. On a third conviction, the justice shall not only give judgment for the penalty aforesaid, but require a recognizance of the offender, with one or more sureties, payable to the governor and his successors, in the penalty of thirty dollars, for his good behaviour for one year; and in case of refusal, shall commit him to jail, there to remain till such recognizance be given, or until the expiration of one month. And if, after such recognizance given, the offender be guilty of either of the above offences, it shall be deemed a breach, and the penalty shall be to the use of the overseers of the district. Ibid. p. 153. Whoever shall use any fire-hunting, or the killing of deer by such means, on any patented lands, shall forfeit four dollars for each offence, recoverable before any justice of the county; one half to the overseers of the poor of the district, the other to the informer. And the confession of the party accused, or the oath of one credible witness, shall be evidence; and where the owner of the land shall prosecute, his oath shall be sufficient evidence to convict the offender; but in that case the whole penalty shall go to the overseers of the poor. 1 Rev. Code, p. 209. If any person shall kill a tame deer, having a bell or collar on its neck, he shall be liable to an action of trespass, at the suit of the party injured, to be prosecuted in the court of the county where the offence was committed. Ibid. If any free white person, by shooting, trapping, hunting, ranging with dogs, or otherwise, shall kill or destroy any deer (not being his own) or shall be found in possession of any, between the first of January and the first of August, he shall forfeit five dollars, recoverable before any justice of the county where the offence was committed, or the offender resides, to the use of the informer, provided the conviction be on the confession of the offender, or oath of one or more witnesses; but if the conviction be on the oath of the informer only, then the penalty to go to the overseers of the poor of the county. And if any white person, free negro or mulatto, be guilty of a like offence, he shall pay the same penalty, recoverable, and to be disposed of as aforesaid; and in case of inability to pay, snall, by order of the justice, receive not less than ten nor more than twenty lashes. 1 Rev. Code 406. The same number of lashes are to be inflicted on a slave guilty of a like offence. Ibid. 407. This act not to extend to the counties west of the Alleghany mountains. Ibid. (A) Warrant for hunting on the lands of another, without license. county, to wit: Whereas information is made to me, by A J, that A O did, on the day of last, hunt and range upon the lands of A M, in this county, without the consent or licence of the said A M, contrary to the act of the General Assembly in that case made and provided. You are therefore hereby required, in the name of the commonwealth, to summon the said AO to appear before me, or some other justice of the peace for this county, to answer the premises. Herein fail not. Given, &c. To A C, constable. Judgment. On hearing, it being duly proved that the within named A O is guilty of the offence within mentioned, by which he hath incurred the penalty of three dollars. It is therefore considered, that the said A |