CHAPTER IV. OF ARRESTS. GENERAL REMARKS. Section I-ARREST BY PRIVATE PERSONS WITHOUT A WARRANT. III.-ARREST BY OFFICERS WITH A WARRANT. IV. AS TO THE TIME AND MANNER OF MAKING THE ARREST. V.-FUGITIVES FROM JUSTICE, AND THE OBTAINING OF REQUISITIONS FOR THE ARREST THEREOF UPON THE GOVERNORS OF OTHER STATES. AN arrest has been defined to be the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. To this arrest all persons whatsoever are, without distinction, equally liable in all criminal cases; but no man should be arrested unless charged with such a crime as will at least justify holding him to bail when taken.1 The authority of courts of this State to punish crimes committed within the State, other than treason, does not depend on the question whether the prisoner owed allegiance to the State or not. If the court obtain jurisdiction of the person of one not a citizen, they may punish his violation of the laws of this State, committed within the State.2 But a State has no jurisdiction of crimes committed beyond its territorial limits; thus bigamy is not punishable as an offence against the laws of this State, unless the second marriage took place within the territorial limits of this State.4 A late criminal author says, the subject of this chapter is one of considerable delicacy, and not quite free from difficulty. Its leading doctrines are plain and well established, but there are places at which its minute lines are indistinct and even uncertain; and without any distinct legislative provision, determining the necessary information pertaining to the rights and duties, both of the parties making the arrest and the party arrested, we are compelled to explore the doctrines of the common law for the sources of our information upon that subject. " 4 Black. Com., 289; 8 Dan., 190; Burn's Just., tit. arrest. * Adams v. People, 1 N. Y. (1 Com.), 173; 3 Den., 190. People v. Merrill, 2 Park., 590. An eminent criminal writer has said, that officers of justice, 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; and 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 and in making arrests or resisting them, ignorance inevitable from the state of our laws, for the written law is silent, and the oracles who pronounce that which is unwritten only, speak when the case has already happened.' In the discussion of this important branch of the criminal law, an examination will be made of the cases in which an arrest can be made by a private person without a warrant; the cases in which an arrest is made by an officer of the law, with a warrant and without one, the manner of making the arrest, and the rights of the persons arrested and making the arrest. SECTION I. OF THE ARREST BY PRIVATE PERSONS WITHOUT A WARRANT. This branch of the subject naturally divides itself into two classes of cases. First Where the person is arrested in the act of committing the offence. Second: Where he is arrested after the offence has been committed. 1. It is a doctrine laid down by the oldest writers upon the common law, that all persons whatever, who are present when a felony is committed, or a dangerous wound is given, not only may apprehend the offender, but that it is their duty to do so.2 So, any person whatever, if an affray be made to the breach of the peace, may, without a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace.3 So, also, a private person may lawfully endeavor to prevent those whom he sees engaged in a riot or rout, from executing 1 Mr. Livingston, Report of a Criminal Code. 1 Randall's Case, 4 City H. Rec., 141; Peo. v. Adler, 3 Park., 253; 1 Arch. Cr. Pl., 21; 2 Hawk. P. C., 157; 1 East, P. C., 377, §1; Holley v. Mix, 3 Wend., 350; 1 Chit. Cr. L., 16, 17, 18. 3 * 2 Inst., 52; Burn's Just., 92; Phillips v. Trull, 11 John., 436. their purpose, and he may stop those whom he may see coming to join them, and may arrest those he sees engaged in it.1 The right of a private person to arrest a person whom he sees in the actual commission of a felony, cannot be questioned; but when we come to consider the right of an unofficial person to arrest without warrant a person who is engaged in the commission of a mere misdemeanor, we do not find the authorities so well settled. Mr. Bishop, in his work on criminal procedure,2 after a review of the cases bearing upon this subject, says: When the crime is of a lower grade than felony, and in one sense, the duty is a mere moral one, the reason of the thing would seem to be that the law will permit the person, if he is disposed to discharge this moral duty by interfering to prevent the commission of the crime, or to arrest the criminal, or both, yet the law might not allow this duty to be carried to all lengths. If the thing done was merely malum prohibitum, not being malum in se, or was of a nature not immediately disturbing the public repose, and not offending public morals, or the like, so injudicious would it be to make the arrest without a warrant by a private person, when no perceptible harm would come from the delay necessary to call in public authority, that the courts could hardly be expected to sanction such arrest. Indeed, it is very uncertain how far the courts would go in the midst of any facts standing on this shadowy ground of legal doubt. The better doctrine seems to be that the permission extended to a private individual, to arrest without warrant, should be limited to cases of felony and affrays, or breach of the peace, while taking place.3 2. The question of the right of a private person to arrest without a warrant a party after the offence has been committed, depends in a great measure upon the fact whether the offence committed be a misdemeanor or a felony. The rule seems to be well settled, that no matter what may be the case of misdemeanor, there is no power in a private person to apprehend after the offence has been committed; for, in cases of misdemeanor, 1 1 Archer, Cr. Pl., 24; 1 Hawk,, ch. 65, § 11. 1 Bish., Cr. Pro., § 628. Peo. v. Adler, 3 Park., Cr. R., 253; Phillips v. Trull, 11 John., 486. Peo. v. McArdle, 1 Whee. Cr. Cases, 101; Peo. v. Walven, 7 N. Y., Leg. Obs., 89. Whar. on Homicide, 75; People v. Adler, 3 Park., 254; 2 Hawk. P. C., 121; 11 John., 486; 2 C. & P., 585. it is much better that the parties should apply to a magistrate for a warrant than to take the law into their own hands, which they are too apt to do.1 A private person is not justified in arresting or giving in charge of a policeman, without a warrant, a party who has been engaged in an affray, unless the affray is still continuing, or there is a reasonable ground for apprehending that he intends to renew it.2 In cases of arrests by a private person, after a felony has been actually committed, two things must concur: 1st, a felony must have in fact been committed by some person; and 2d, such private person must have reasonable cause to believe the party arrested the guilty person. (a) It is necessary that there should have been a felony actually committed. The honest suspicion of the commission of such a crime, will afford no protection to the party who makes the arrest; but if a felony has in fact been committed, and the private person has reasonable cause to suspect a particular person to be guilty of its commission, he may, acting in good faith, arrest such person, and he will not be liable either in a civil or criminal prosecution, should the suspicion prove unfounded.4 Chief Justice Savage states the rule thus: "My understanding of the law is, that if a felony has in fact been committed by the person arrested, the arrest may be justified by any person without warrant, whether there is time to obtain one or not. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the party arrested; but if no felony was committed by any one, and a private indvidual arrest without warrant, such arrest is illegal, though an officer would be justified, if he acted upon information which he had reason to rely on.' 115 The known commission of any offence less than felony will not Fox v. Gaunt, 3 B. & Ad., 798. 10 Clark & Fin., 28. Holtum v. Lotun, 6 C. & P., 726; Lock v. Ashton, 12 Qu. Bench, 523; Breese, 18; 6 Term R., 315. 1 Bish. Cr. Pro., 625; Holley v. Mix, 3 Wend., 350; 6 Binn., 316; Cald., 291. authorize the arrest, for there is no distinction or degrees in misdemeanors for this purpose.1 (b) In relation to the private person having reasonable cause to believe the party arrested the guilty person, the state of facts that will justify a reasonable belief that the party accused was guilty, must, of course, vary with the peculiar circumstances of each individual case. The suspicion ought always to be a reasonable one, founded on pregnant circumstances; mere suspicion will not suffice. It has been held that a personal resemblance between the person arrested and the true offender, was not suffi cient to justify the arrest.3 There should be such facts and circumstances as to warrant a cautious man in the belief that the party arrested was the real offender.1 2 Besides the authority given by the common law, the Revised Statutes also give private persons the right to apprehend and detain without warrant hawkers and pedlers without a license, and some other classes of offenders, which will be found more particularly spoken of in the subsequent chapter, concerning summary convictions before inferior magistrates.5 A deserter is not liable to arrest by any citizen without process and an order of the War Department, authorizing certain enumerated local magistrates and officers to arrest deserters, is to be construed strictly, and does not empower the deputies of such officers to make the arrest.6 SECTION II. OF THE ARREST BY AN OFFICER WITHOUT A WARRANT. The right of an officer to make an arrest without a warrant, like that of a private individual, is subject to the same general classification as to whether the party is apprehended in the actual commission of the offence, or the arrest is made after the offence 12 Pick., 324; 3 Ire., 289; 4 Wash. C. C., 82; 5 Bingham, 722; 25 Eng. L. & Eq., 55. Post. • Trask v. Payne, 43 Barb., 569. C. P.-5. |