And so, also, may inspectors of election1 and other special officers in the different cases pointed out by statute, issue warrants of arrest in particular instances, falling within those provisons of the statute.

SECTION IV.

AS TO THE TIME AND MANNER OF MAKING THE ARREST.

Having already spoken of the power of official and unofficial persons to make arrests, we will now consider the time and manner in which the arrest is to be made.

(a) As regards the time, the rule was laid down by the common law, that in cases where a party was authorized to arrest without a warrant, that it could be made at any time, even on a Sunday, and at any place, and that it might be made in the night as well as the day time, in order to prevent the escape of the party. Our statute provides in cases of breach of the peace, or apprehended breach of the peace, or for the apprehension of persons charged with crimes and misdemeanors, that process and warrants may be served upon Sunday.

(b) An officer making an arrest with a warrant, should give some notification of his authority as such officer. The books agree that the officer is bound to give the substance of the warrant or process, to the end that the party may know for what cause he is arrested, and take the proper legal measures to discharge himself. This is, however, where the party submits to the arrest, and not where he makes resistance before the officer has time to give the information, although the officer is not bound to exhibit the warrant, especially where there may be reason to apprehend that it may be lost or destroyed, yet it cannot be doubted that it is his duty to inform the party where such is the fact, that he has a warrant, or to make known in some other way that he comes in his character as an officer, to execute legal process, and not leave the party to suppose that he is assailed by a wrong-doer. The contrary doctrine would be likely to lead to

1 R. S., 349, § 33.

* 1 Arch. Cr. Pl., § 28, h.; Smythe, 207; 1 Nun. & Walsh, 102.

9 Co., 66; 1 Chit. Cr. L., 49; 1 East. P. C., 324;3 Tarent, 14; 5 Bing. 354.

1 R. S., 675, § 65.

violence and bloodshed. BRONSON, Justice, says: "I do not say that the officer is bound to declare the particulars of his authority before he makes the arrest, or that it may not sometimes be proper to lay hands on a party before a word is spoken, but either before or at the moment of the arrest, the officer ought to say enough to show the party that he is not dealing with a trespasser, but with a minister of justice."

It is said that an officer, if a known public officer, is not bound to show his warrant for the arrest, even if demanded by the defendant, but that the case was different with a special deputy, for he was bound to show his warrant, or the arrest is illegal.3

Mr. BENNETT, in his Notes to Leading Criminal Cases, says, it may be fairly questioned whether the authorities upon this subject mean more than a general officer is not bound to show his warrant of appointment; for it is difficult to see why a general officer is not as much bound to show the precept authorizing him to arrest a person, if the same be demanded, as a special officer; and Lord KENYON remarked, that he did not think a person bound to take it for granted, that another, who says he has a warrant against him, without producing it, speaks the truth; and he considered it very important that in all cases where an arrest was made by virtue of a warrant, the warrant if demanded, should be produced, so as to leave a delinquent no excuse for resistance.5

(c) There are some cases which tend to show that submission to process without compulsion is no arrest or imprisonment; but the law must be understood as well settled that no manual touching the body, or actual force, is necessary to constitute an arrest and imprisonment. It is sufficient if the party be within the power of the officer, and submits to the arrest."

With respect to hand-cuffing, the law undoubtedly is, that police officers are not only justified, but are bound to take all reasonable requisite measures for preventing the escape of those

' Bellows v. Shannon, 2 Hill, 86; 6 Co., 54-5; 9 Co., 69; 13 Mass., Fost. Cr. L., 310-11; 1 Russ. on Cr., 451-514; 10 Wend., 516.

321;

Arnold v. Steeves, 10 Wend., 514; 3 Hawk. P. C., b. 2, ch. 13, § 28; 2

Hale's P. C., 116; 1 Haywood, 471.

' Frost v. Thomas, 24 Wend., 418; 2 Iredell, 201.

Vol. 1, p. 185.

' 8 T. R., 188; 1 Chit. Cr. L., 51; 1 T. R., 118.

Gold v. Bissell, 1 Wend., 215.

persons they have in custody, for the purpose of taking them before the magistrate; but what those reasonable measures are, must depend entirely upon the circumstances, upon the temper and conduct of the person in custody, or the nature of the charge, and a variety of other circumstances, which must present themselves to the mind of any one. As to supposing that there is any general rule that prisoners are to be handcuffed, seems to be an unjustifiable view of the law.1

(d) In relation to commanding assistance by the officer, it is provided, that whenever a sheriff or other public officer, authorized to execute any process delivered to him, shall find or have reason to apprehend that resistance will be made to the execution of such process, he shall be authorized to command every male inhabitant of his county, or as many as he shall think proper, and with such arms as he shall direct, and any military company or companies in said county, armed and equipped, to assist him in overcoming such resistance, in seizing, arresting and confining the resisters, their aiders and abettors, to be dealt with according to law. And persons who are commanded by officers to assist them in the execution of process, and who refuse, or without lawful cause neglect to obey such command, are subject to fine and imprisonment.3

(e) In regard to the right to break open doors and windows to make an arrest, it is said in general that a man's house is regarded as his castle, which is only to be violated when absolute necessity compels the disregard of smaller rights in order to secure public benefit; and, therefore, in all cases where the law is silent, and express principles do not apply, this extreme violence is illegal.4 In all cases where doors may be broken open in order to make an arrest, there must be a previous notification of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties can proceed to that extremity;5 but where a party arrested by an officer breaks away, and shuts himself up in his own house, the officer is justiuable in the attempt to retake

1 Leigh v. Cole, 6 Cox C. C., 331.

2 R. S., 441, § 101.

' Idem, § 103. Vide 10 Wend., 128.

1 Arch. Cr. Pl., 29, note; 3 Black. Com., 288; 14 East., 79, 116, 118, 154-5; 5 Co., 91; Cowp., 1.

* 1 Russ. on Cr., 627, 628; Fost, 320; 2 Hawk. P. C., ch. 14, § 1. 1 East. P. C., ch. 5, § 87.

him to break open the outer door of the house of such party without making known his business, demanding admission, and receiving a refusal, where the pursuit is fresh, and the party consequently aware of the object of the officer.1

Where a felony has been committed, or a dangerous wound given, the party's house is no sanctuary for him, and the doors may be forced after such notification, demand and refusal, as above stated. So, also, when a minister of justice comes armed with process founded on a breach of the peace, doors may be broken. But, though a felony has been actually committed, yet a bare suspicion of guilt against the party will not authorize a proceeding to this extremity, unless the officer comes armed with a warrant from a magistrate grounded on such suspicion ; for, where a person lies under a probable suspicion only, it is said to be the better opinion, that the breaking open doors without a warrant, in order to apprehend him, cannot be justified, or must at least be considered as done at the peril of proving that the party, so apprehended on suspicion, is guilty.5

It is said that if there be an affray in a house, the doors of which are shut, whereby there is likely to be manslaughter or bloodshed, and the constable demand entrance, and be refused by those within, who continue the affray, the constable may break open the doors to keep the peace and prevent the danger; and it is also said that if there be disorderly drinking or noise in a house, at an unseasonable time of night, especially in inns, taverns or ale houses, the officer demanding entrance and being refused, may break open the doors to see and suppress the disorder; and further, that where an affray is made in a house in the view or hearing of the officer, or where those who have made an affray in his presence fly to a house and are immediately pursued by him, and he is not suffered to enter in order to suppress the affray in the first instance, or to apprehend the affrayers in either case, he may justify breaking open the doors."

The privilege above spoken of, viz., of every man's house

Allen v. Martin, 10 Wend., 301.

Russ on Cr., 628; Fost., 320; 1 Hale, 459; 2 Hawk. P. C., ch. 14. § 7.

⚫ 1 Russ on Cr., 629; 2 Hawk. P. C., ch. 5, § 87; 1 East. P. C., ch. 5, § 87. Russ on Cr., 629; 2 Hale, 95; 2 Hawk. P. C., ch. 14, § 8.

being his castle, applies only to the breach of outward doors, so if the officer found the outward door open, or it be opened to him from within, he may then break any inward door, if he find that necessary in order to execute his process; and the privilege only extends to the dwelling house, but it should seem that within that term are comprehended all such buildings as are within the curtilage, and as are considered as part of the dwelling house at common law. So, also, this personal privilege of an individual, in respect to his outer door or window, is confined to cases where the breach of the house is made in order to arrest the occupier or any of his family who have their domicile, their ordinary residence, there; for, if a stranger, whose ordinary residence is elsewhere, upon a pursuit, take refuge in the house of another, this is not the castle of such stranger, nor can he claim in it the benefit of sanctuary.3 And also, as above stated, it must be confined to arrests in the first instance; for if a man, being legally arrested, escape from the officer, taking shelter in his own house, the officer may, upon fresh suit, break open the doors without the notice, demand of admission and refusal spoken of.4

(f) As to the amount of force to be used by the officer in making the arrest, the officer should in all cases act with caution and prudence; but he is authorized to use as much force as may be necessary, according to the circumstances of the case, to overcome resistance and effect the arrest ;5 and if the officer or other person, in endeavoring to make a legal arrest, be resisted, and in opposing force to force he happen to kill the party, the homicide is justifiable, and the officer or other person need not retreat, as in the ordinary case of se defendo; but if the arrest would have been illegal, the killing would amount to manslaughter."

(g) In relation to the power of an officer to convey a prisoner through other counties, it is provided by statute, that when an officer shall have arrested any prisoner on a criminal charge in any county, he may carry such prisoner through such parts of

1

1 Russ. on Cr., 630; 1 Hale, 458; 1 East. P. C.. ch. 5, § 87.

1 Russ. on Cr. 631.

Fost., 320; 5 Co., 93; 1 Russ. on Cr., 631.

1 Russ. on Cr., 632; Fost., 320; 1 Salk., 79; 1 Hale, 459; 2 Hawk. P. C.,.

ch. 14, § 9; 10 Wend., 301.

* 1 Hale, 494; Fost., 270.

* 1 Arch. Cr, Pl., 29; 1 Hale, 494, 481; Fost., 318, 274; 2 Hale, 218.