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Hale asserts, that a justice has power to apprehend a person accused of felony, though not yet indicted; also one suspected of felony, by the party praying for the warrant, the justice being a competent judge of the probability of his guilt. In both cases,
, the justice should examine, upon oath, the party requesting a warrant, as well to ascertain that a crime was committed, as also to show the cause of suspecting the party who is to be apprehended.
Requisites. The warrant ought to be under the hand and seal of the justice; should set forth the time and place of making, and the cause for which made; and should be directed to the constable, or it may be to a private person by name, requiring him to bring the party either generally before any justice of the peace of the county, or only before the justice who granted it.
General Warrant. A general warrant to apprehend all persons suspected, without naming or describing any particular one, is illegal and void for uncertainty; for it is the duty of the magistrate and not of the officer to judge of the ground of suspicion. And a warrant to arrest all persons guilty of a crime therein specified is no legal warrant. In fact, it is no warrant at all, and will not justify the officer who acts under it; whereas a warrant properly penned, even though the magistrate has exceeded his jurisdietion, will, at all events, indemnify the officer who executes it ministerially.
Backing Warrants. A warrant from a justice of the court of king's bench extends throughout the kingdom; but a warrant from a justice of the peace in one county, must be backed, that is signed by a justice of the peace in another, before it can be executed there. Formerly a fresh warrant had to be issued in each county; but now any warrant for apprehending an English offender, who may have escaped to Scotland and vice versa, may be endorsed and executed by the local magistrates, and the offender carried back to the place in the united kingdom, where the offence was committed.
2. Arrests by Officers Without Warrant. (1) A justice of the peace may apprehend, by word only, any person committing a felony or breach of the peace in his presence. (2) The sheriff and (3) The coroner may apprehend a felon within the county without warrant. (4) The constable, who has great authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is likely to ensue, he may, upon probable suspicion, arrest the felon; and for that purpose, is authorized, as upon a justice's warrant, to break open doors, and even to kill the felon, if he cannot otherwise be taken; and if he or his assistants be killed in attempting such arrest, it is murder in all concerned. (5) Watchmen, either those appointed by statute to keep watch from sunrise to sunset, or such as are mere assistants to the constable, may virtute officii, arrest all offenders, particularly night-walkers, and commit them to custody until the morning.
3. By Private Persons Without Warrant. Any private person, who is present when any felony is committed, is bound by law to arrest the felon, on pain of fine or imprisonment, if he escape through the negligence of the bystanders. And they may break open doors in following such felon, and if they kill him, provided he cannot otherwise be taken, it is justifiable. If they are killed in endeavoring to make such arrest, it is murder. Upon probable suspicion, a private person may arrest a felon or a person suspected of felony. But he is not justified in breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter. Such arrest upon suspicion is barely permitted, and not enjoined by the law.
4. Upon Hue and Cry. Hue from huer, to shout, was the old common law process of pursuing with horn and voice, all felons, and such as had dangerously wounded any one. When the people of a hundred were held responsible for loss occasioned by a robbery within their bounds, unless the felon was caught, they used to pursue the criminal on horse and foot. Hue and cry may be raised, either by precept of a justice of the peace, or by a peace officer, or by any private man that knows of a felony. But if a man maliciously raises such shout, he shall be severely punished, as a disturber of the
peace. Rewards. In order to encourage the apprehending of certain felons, rewards and immunities are sometimes bestowed, by acts of parliament, on such as bring them to justice.
CHAPTER XXII.-COMMITMENT AND BAIL.
Examination Before a Justice. Immediately after the arrest, the delinquent should be taken before a justice of the peace, who shall examine the circumstances of the alleged crime, and write down the examination, and the information of those who bring him. By the common law, nemo tenebatur prodere seipsum ; and a man is not compelled to testify against himself, but the fault is to be discovered by other means and by the testimony of other men. If, upon this inquiry, it appears that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, he should be discharged.
Bail or Imprisonment. Otherwise the party charged with the offence must either be committed to prison or give bail; that is, enter security for his appearance, to answer the charge against him. This commitment is only for safe custody; but in felonies and other offences of a capital nature, no bail can be a security, equivalent to the actual custody of the person. When a man's life is in jeopardy, he would forfeit anything to save it ; and it is no satisfaction or indemnity to the public to seize the effects of those who have bailed a murderer, if the culprit himself be suf
fered to escape.
Amount of Bail. In civil cases, every defendant is bailaable; but in criminal matters, it is otherwise. To refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate; nor should excessive bail be required; though what be determined excessive must be left to the courts, to determine under the circumstances of each case. On the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal does not appear. Bail may be taken in court, or before a justice, and in some cases before a sheriff, coroner or other magistrate. In all offences below felony, the defender ought to be admitted to bail, unless prohibited by some special act of parliament.
What Offences are not Bailable. When the imprisonment is only for safe custody before the conviction, and not for punishment afterwards; in such cases bail is refused, when the offence is of an enormous nature, for then the public is entitled to the highest security, viz: the body of the accused. By the ancient common law, all felonies were bailable, till murder was excepted by stat ute. Later statutes prohibit a justice of the peace from admitting to bail parties brought before him on the following charges :
1. Upon an accusation of treason.
3. Of manslaughter, if the prisoner be clearly the slayer, or if any indictment be found against him.
4. Of breaking prison, after having been committed for felony.
5. Outlawed persons.
12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame.
13. Accessories to felony, and not being of good reputation. These seem to be in the discretion of the justices, whether bailable or not.
Persons of Cood Repute. In the following cases, persons must be bailed, upon offering good security :
(1.) Persons of good fame, charged with a bare suspicion of manslaughter.
(2.) Such persons, charged with petit larceny, or any felony, not before specified.
(3.) Such persons, charged with being accessory to a felony.
Power of Gourt. The court of king's bench, or a judge thereof in vacation, may take bail for any crime whatsoever, even though it be treason or murder.
Commitment to Jail. If the offence be not bailable, or the party cannot find bail, he is to be committed to the county jail by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide, until delivered by due course of But this imprisonment is only for safe custody, and not for punishment; hence in this interval between the commitment and trial, the prisoner should be most humanely treated; but jailors are usually a merciless race of men, who being conversant with scenes of misery, are hence steeled against any tender sensation.
CHAPTER XXIII.-MODES OF PROSECUTION.
Manner of Accusation. The manner of the formal accusation of offenders, by prosecution, is either upon a previons finding of the fact by an inquest or grand jury, or without such previous finding. The former way is either by presentment or indictment.
1. Presentment. This term includes, not only presentments properly, so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, upon which the officer of the court must afterwards frame an indictment, before the party presented need answer.
Inquisition of Office. An inquisition of office is the act of a jury, summoned by a proper officer, to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied ; and therefore the inquest or jury should hear both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; deodands and the like. Other inquisitions may afterwards be traversed and examined, as particularly the coroner's inquisition on the death of a man, when it finds any one guilty of homicide; for in such cases the offender, so presented, must be arraigned upon this inquisitiou, and may dispute the truth of it.
II. Indictment. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by a grand jury.
Drawing of a Grand Jury. To this end, the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery twenty-four men of the county; to inquire, present, do and execute all those things, which on the part of our lord, the king, shall then and there be commanded them. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at least, and not more than twenty-three, that twelve may be a majority .
Grand Jury Receive Indictments. The grand jury are previously instructed, by a charge from the presiding judge.