Second arrest. Brought before justice room, and tells the party he arrests him, and locks the door, this is an arrest; for he is in custody of the officer. Salk., 79. 2 Haw., 129. Cases in the time of Lord Hardwicke, 301. It hath been holden, that if a constable, after he hath arrested the party by force of a warrant, suffer him to go at large, upon his promise to come again and find sureties, he cannot afterwards arrest him by force of the same warrant; however, if the party return, and put him. self again under the custody of the constable, it seems that it may be probably argued, that the constable may lawfully detain him, and bring him before the justice, in pursuance of such warrant; but in this the law doth not seem to be clearly settled. 2 Haw., 81. But if the party arrested do escape, the officer upon fresh suit may take him again and again, so often as he escapeth, although he were out of view, or that he shall fly into another town or county, or district. Dalt., c. 169. 6th. What is to be done after the Arrest. When a private person hath arrested a felon, or one suspected of felony, he may, with as much speed as he conveniently can, deliver him to a constable, to carry to a justice of the peace, or he may carry him there himself. 1 H. H., 589. If the constable, or his watch, hath arrested affrayers, or persons drinking in an ale-house, disorderly, at an unseasonable time of night, Imprisoned. he may put the persons in the stocks, or in a prison, if there be one in the place, till the heat of their passion or intemperance is over, though he deliver them afterwards, or till he can bring them before a justice. 2 H. H., 95. Direction of If the arrest is by virtue of a warrant, when the officer hath made the arrest, he is forthwith to bring the party, according to the direction warrant. of the warrant: if it be to bring the party before the justice who granted the warrant specially, then the officer is bound to bring him before the same justice; but if the warrant be to bring him before any justice of the county or district, then it is in the election of the officer to bring him before what justice he thinks fit, and not in the election of the prisoner. 1 H. H., 582. 2 H. H., 112. Detained if in the night. But if the time be unseasonable, as in or near the night, whereby he cannot attend the justice, or if there be danger of a present rescue, or if the party be sick, he may secure him in the stocks, or in an house, till the next day, or such time as it may be reasonable to bring him. 2 H. H., 120. And when he hath brought him to the justice, yet he is in law still in his custody; till the justice discharge, or bail, or commit him. 2 H. H., 120. warrant But it is said, the constable is not obliged to return the warrant May keep itself, but may keep it for his own justification, in case he should be questioned for what he had done; but only to return what he has done upon it. Lord Raym., 1196. ARSON. 1st. What is.. Arson, at common law, is the malicious and voluntary burning the house of another, by night or by day. By the term house, is meant not only the dwelling, but all out-houses, which are parcel thereof, though not adjoining thereto, or under the same roof. A house to be a parcel of the dwelling-house, must be somehow connected or contributing to it, such as a kitchen, smoke-house, or such other as is usually considered as a necessry appendage of a dwelling-house. It cannot embrace a store, blacksmith's shop, or any other building separated from it, and appropriated to another and distinct use, unless such store is under the same roof, or some of the family sleep in it. State vs. Ginns, 1 N. & Mc., 583. 2d. Of the Burning. Definition. Actual The burning necessary to constitute arson must be an actual burning of the whole or some part of the house. Neither a bare intention, nor even an actual attempt to burn a house, by putting fire into it, burning. will amount to the offence if no part of it be burned; but it is not necessary that any part of the house should be wholly consumed, or that the fire should have any continuance, and the offence will be complete, though the fire be put out, or go out of itself. Russell on Crimes, 2, 486. 3d. The burning must be wilful and malicious, otherwise it is only a trespass. No negligence or mischance will amount to such burning. But the wilful or malicious burning need not correspond to precise intent of the party. If A. have a malicious intent to burn the house of B., and in setting fire to it, burn the house of C., though the house of B. escape, this will be held in law to be the wilful and malicious burning of the house of C. And such malicious and wilful burning of the house of another, may be by the means of setting fire to the party's own house, and this, though it should appear that the primary inten tion of the party was only to burn his own house. 4th. It must be the house of another. And the burning a party's own house, if no other be burned thereby, is not arson, but if near to other houses, or in a crowded city, it is a great misdemeanor. But if the house be that of another, and the party have a mere possession, without an interest therein, the burning such house is arson. Russ., 2, 488. 5th. Punishment. The punishment of arson is death, without benefit of clergy, wherefore a magistrate may not admit to bail, the party charged therewith.. strike. ASSAULT AND BATTERY. 1st. What is an Assault. An assault is an attempt or offer with force and violence to do a Attempt to corporal hurt to another, as by striking at another, holding up the fist in a threatening manner within striking distahce, throwing at with intent to strike, presenting a gun within shooting distance, or any other similar act. No words whatsoever, be they ever so provoking, Words not. will amount to an assault. And the words used at the time may so explain the intention of the party as to qualify his act and prevent it from being deemed an assault, as where A. laid his hand upon his Act explain- sword and said, "If it were not assize time I would not take such ed by words. language from you." It was holden not to be an assault, on the ground that he did not design to do the other party any corporal hurt at that time. Any offer or attempt to do violence to the person of another, in a rude, angry, or resentful manner, is an assault. Therefore, where a party had a negro in custody, and tied to his person by a rope, and another cut the rope and carry off the negro, it was held to be an assault. State vs. Davis & Pardee, 1 Hill, 46. Indecent liberties. The taking indecent liberties with a female, without her consent, though she do not resist, is an assault; so also, the exposing another to the inclemency of the weather. Russell on Crimes, 1, 605. 2d. What is a Battery. A battery is more than an attempt to do a corporal hurt to another, but any injury whatsoever, be it ever so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent man. ner, such as spitting in his face, or any touching him in anger, or violently jostling him out of the way, is a battery. For every man's person is sacred, and the law prohibits any meddling therewith in the slightest manner. Russell 1, 605. dog. The injury need not be effected directly by the hand of the party. Thus, there may be an assault by encouraging a dog to bite, by riding Setting on a over a person with a horse, or by wilfully or violently driving a cart against the carriage of another, thereby causing bodily injury to the persons travelling in it. And one who incites others to commit an assault and battery, is himself guilty of the offence, if it be committed. State vs. Lymburn, 2 Bre. R., 397. Inciting another. squib. Neither is it necessary that the assault should be immediate, as where a defendant throw a lighted squib into a market place, which Throwing a being tossed from hand to hand, at last hit the plaintiff in the face, and put out his eye-this was adjudged an assault and battery. Whether an act shall amount to a battery, must, in every case, be collected from the intention. Thus, if one person lay hands on another to prevent a breach of the peace, or to separate him from another with whom he is fighting, it is not a battery; or, if two consent to play at cudgels and one happen to hurt the other, it would not amount to a battery. 3d. In what cases Assault and Battery may be justified. Intention. Self-defence, No words will justify an assault, nor will an assault, or even a blow, Words not. justify an enormous battery. State vs. Wood, 1 Bay, 351, and State vs. Quin, 2 Tr. Con., 694. Yet, if the defence be proportionate to the aggression, a party may justify in defence of his person, wife, servant, master, parent or child. A man may use force to put another out of his house, if he remain after being desired to leave. Yet, he must use only such force as is necessary to put him out, and he may not inflict a violent battery. State vs. Lazarus, 1 M'C., 34. Entry of house. depart. In any trespass or breach of a close, without violence, a party Request to cannot justify an assault without a request to depart; but if the entry be with violence, it may be opposed at once, with violence. Green vs. Goddard, 2 Salk, 641. 4th. Punishment. The party injured may recover damages for an assault and battery, Damages. in a civil action, which must be brought within twelve months, and Prosecution. pursue the defendant in a prosecution at the suit of the State. In the latter case, the punishment of a white person is by fine and imprisonment, and of a slave, by imprisonment, whipping, or confinement on the tread mill. By the Act of Ann, c. 14, 2d S. L. 569, if the assault and battery Forfeiture. be for money won at gaming, the party convicted thereof shall forfeit all his goods, chattels, and personal estate, and be imprisoned for the term of two years. 5th. Requisite of Affidavit, form of Warrant, &c. The affidavit should state concisely the time, place and manner of the assault and battery, the christian and surnames of the parties. 'Must shew that it was done without sufficient cause or provocation, and if the assault and battery be aggravated, the particulars thereof should be stated, otherwise the party might be admitted to light bail. By A. B., magistrate, in and for the said State. To any lawful constable. Whereas complaint on oath has been day of at me by B. C., that in the district C. D. did on the Given under my hand and seal, this A. D. day of A. B. [L. s.] Magistrate. ASSEMBLIES. 1st. RELIGIOUS ASSEMBLIES. 2d. UNLAWFUL ASSEMBLIES. 1st. Of Religious Assemblies. A religious assembly is a congregation of persons of any sect, creed or persuasion, whatsoever, for the worship of Almighty God; and such |