2. Arrests by officers without warrant may be executed, 1. By a justice of the peace; who may himself apprehend or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence. (4) 2. The sheriff; and 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke, (m) hath great original and inherent 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 like to ensue, he may upon probable suspicion arrest the felon; and for that purpose is authorized (as upon (1) 2 Hal. P. C. 86. (m) See book I, page 355. sary for the officer to inquire whether the breach of the peace is actual or constructive. Rawlins v. Ellis, 16 M. & W. 172. So, for violating a city or dinance against keeping open a drinking shop on Sunday. Main v. McCarty, 15 Ill. 441. The arrest may be made by night as well as by day. 1 East P. C., ch. 5, § 88; State v. Smith, 1 N. H. 346. By statute, provision is made for arresting and sending back for trial sup posed offenders who may have fled to the United Kingdom from any of the British colonies, and also for the extradition of supposed offenders who may be demanded by foreign governments under extradition treaties. In the United States the power to extradite fugitives from the justice of foreign countries is one belonging to the national government, and is exercised under treaties made for the purpose. Holmes v. Jennison, 14 Pet. 540; Ex parte Holmes, 12 Vt. 631; People v. Curtis, 50 N. Y. 321. The constitution of the United States provides that, "A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." Art. 4, § 2. Under this provision, the offense must act ually have been committed within the state making the demand, and the accused must have fled therefrom. Ex parte Smith, 3 McLean, 121; Hartman v. Aveture, 63 Ind. 344; Wilcox v. Nolze, 34 Ohio St. 520; Jones v. Leonard, 50 Iowa, 106; S. C., 32 Am. Rep. 116. The accused may be arrested to await the demand, and the states provide by law for such arrest. The demand is made on a prima facie showing of guilt, which is either by the indictment of the supposed offender, or by affidavit of facts. State v. Swope, 72 Mo. 399; Ex parte Sheldon, 34 Ohio St. 319; Harn v. State, 4 Tex. Ap. R. 645. It is made on the governor of the state to which the offender has fled, who will issue his warrant of extradition, if the cause shown is satisfactory. But he may revoke this at any time before its execution, if he is satisfied it ought not to have been issued. Work v. Corrington, 34 Ohio St. 64; S. C., 32 Am. Rep. 345. The courts have no power to compel the governor to perform his duty in the extradition of offenders. Kentucky v. Dennison, 24 How. 66; Matter of Manchester, 5 Cal. 237. 1 As to arrests without process in general, see Ruloff v. People, 45 N. Y. 213; Reuck v. McGregor, 32 N. J. 70; State v. Holmes, 48 N. H. 377; Somerville v. Richards, 37 Mich. 299; Newton v. Locklin, 77 Ill. 103; Corbett v. Sullivan, 54 Vt. 619; State v. Freeman, 86 N. C. 683. The general rule is that a peace officer who has reasonable ground to suspect that a felony has been committed, may at the common law detain the suspected party until inquiry can be made. Beckwith v. Philby, 6 B. & C. 635; Davis v. Russell, 5 Bing. 354; Rohan v. Sawin, 5 Cush. 281. And even though no felony proves to have been committed, the officer will be justified in making an arrest upon suspicion, if he acts in good faith upon apparently reliable information. Burnes v. Erben, 40 N. Y. 463. So, an officer may arrest without warrant for a breach of peace committed in his presence. 2 Hawk. P. C., ch. 13, § 8. And perhaps for some high misdemeanors. Smith v. Donelly, 66 Ill. 464. But not for misdemeanors in general. Com. v. Carey, 12 Cush. 246; Quinn v. Heisel, 40 Mich. 576; Way's Case, 41 Mich. 299. Any private party present at the commission of a felony may arrest the felon without warrant. Keenan v. State, 8 Wis. 132. 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 arrests, it is murder in all concerned. (n) 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I, c. 4, to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii (by virtue of their office) arrest all offenders, and particularly night-walkers, and commit them to custody till the morning. (0) - 3. Arrest by private person. Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to *arrest the felon, on pain of fine and [*293] imprisonment, if he escapes through the negligence of the standers-by. (p) And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable: though if they are killed in endeavouring to make such arrest, it is murder. (9) Upon probable suspicion also a private person may arrest the felon, or other person so suspected. (r) But he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more. (s) It is no more, because there is no ma (n) 2 Hal. P. C. 90, 91. (0) Ibid. 98. (r) Stat. 30 Geo. II, c. 24. (s) 2 Hal. P. C. And a private party may lawfully recapture a prisoner who has broken jail, though the breaking was only a misdemeanor. State v. Holmes, 48 N. H. 377. And may stop a breach of the peace, though he cannot arrest for it. Phillips v. Trull, 11 Johns. 486. A person detected in an attempt to commit felony may be arrested without warrant. R. v. Hunt, 1 Moo. 93; but not one merely suspected of the commission of a misdemeanor. Fox v. Gaunt, 3 B. & Ad. 798. The apprehension by a private party upon suspicion is only for the purpose of taking the suspected person before a magistrate. Long v. State, 12 Ga. 293. If a felony has in fact been committed by the person arrested, the arrest may be justified by any person without a 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 person arrested. But if no felony was committed by any one, and a private individual arrest without a warrant, such arrest is illegal, although an officer would be justified if he acted upon reliable information. Holley v. Mix, 3 Wend. 350; Brockway v. Crawford, 3 Jones, N. C., 433; Com. v. Carey, 12 Cush. 246; Wakely v. Hart, 6 Binn. 316; Com. v. Deacon, 8 S. & R. 49; Burns v. Erbin, 40 N. Y. 463; and see Doughty (9) 2 Hal. P. C. 77. (p) 2 Hawk. P. C. 74. 82, 83. v. State, 33 Tex. 1. Upon suspicion of felony merely, a private party cannot break open a house, or kill the suspected party; and in making the arrest he must give notice of his purpose to arrest for felony. Brooks v. Com., 61 Penn. St. 352. The purpose to arrest must be made known, and the individual attempting to make the arrest has no right to kill the suspected party if the latter is charged with an inferior felony and does not resist, but flies. State v. Bryant, 65 N. C. 327. [Arrest without warrant may be made by an officer where no felony has actually been committed, but is suspected, and the individual is suspected of being the criminal; but a private person can justify the arrest only by showing the actual commission of a felony, and reasonable grounds to suspect the accused. The above cases amply illustrate these propositions. The several states of the Union are not so foreign to each other that the felony must be committed within the state where the arrest is made. A very interesting case, illustrating the law of arrest by officers without warrant, is State v. Taylor, 70 Vt. 1, 67 Am. St. Rep. 648. The same case states, by way of illustration, that a private person is authorized to arrest in a state foreign from the state where the crime was committed. Id., citing State v. Anderson, 1 Hill (S. C.), 327.] licious design to kill: but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed. 4. Arrest on hue and cry. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon an hue and cry raised upon a felony committed. An hue (from huer, to shout, and cry), hutesium et clamor, is the old common-law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another. (t) It is also mentioned by statute Westm. 1, 3 Edw. I, c. 9, and 4 Edw. I, stat. 2, de officio coronatoris (of the office of coroner). But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I, cc. 1 and 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town, and the towns near; and so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the *hundred is bound by the same statute, chapter 3, to [*294] answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred, (u) in case of any loss for robbery. By statute 27 Eliz. c. 13, no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II, c. 16, the constable or like officer, refusing or neglecting to make hue and cry, forfeits 57.: and the vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein, and the felon escapes. An institution which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century: which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts. (w) Hue and cry (x) 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. The party raising it. must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection and indemnification, as if acting under a warrant of a justice of the peace. But if a man (u) See book III, page 161. (x) 2 Hal. P. C. 100-104. (t) Bracton, 1. 3, tr. 2, c. 1, § 1. Mirr. c. 2, § 6. (w) Mod. Un. Hist. vi. 383, vii. 156. 1 All these acts are now repealed. wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace. (y) Reward for arrest.-In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 and 5 W. and M. c. 8, enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall receive a reward of 40%. from the public; to be paid to them (or if *killed [*295] in the endeavour to take him, their executors) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of such robber, with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II, c. 16, superadds 10l. to be paid by the hundred indemnified by such taking. By statutes 6 and 7 Wm. III, c. 17, and 15 Geo. II, c. 28, persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 and 11 Wm. III, c. 23, any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larceny to the value of 6s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31, any person so apprehending and prosecuting a burglar, or felonious house-breaker (or, if killed in the attempt, his executors), shall be entitled to a reward of 407. (2) By statute 6 Geo. I, c. 23, persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II, o. 6, explained by 15 Geo. II, c. 34, any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep, or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II, c. 15, and 8 Geo. III, c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds.1 (y) 1 Hawk. P. C. 75. (z) The statutes 4 and 5 W. and M. c. 8, 6 and 7 Wm. III, c. 17, and 5 Ann. c. 31 (together with 8 Geo. I, c. 15, § 4, which directs the method of reimbursing the sheriffs), are extended to the county palatine of Durham, by stat. 14 Geo. III, c. 46. 1 These statutes are repealed and new provisions substituted. [No crime is committed if one connives at his own robbery in order that he may obtain the reward. McClain's Cr. L., § 118. Connivance at crime for the purpose of detecting the offender is not infre 1447 quent, and the question arises whether such as connive are accomplices within the rule requiring corroboration, and sometimes whether those who are enticed by the authorities to commit crime can be convicted. See McClain's Cr. Law, $$ 117, 118; Love v. People, 160 Ill. 501.] [*296] *CHAPTER XXII. OF COMMITMENT AND BAIL When a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace:1 and how he is there to be treated, I shall next show, under the second head, of commitment and bail. Examination and bail or commitment. The justice before whom such prisoner is brought is bound immediately to examine the circumstances of the crime alleged: and to this end by statute 2 and 3 P. and M. c. 10, he is to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr. Lambard observes, (a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum (no one was obliged to betray himself): and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. If upon this inquiry it manifestly appears that either no such crime was com (a) Eirenarch, b. 2, c. 7. See page 357. 1A private party who makes an arrest may deliver the prisoner to an officer or take him before a justice. 1 Chitty Cr. L. 20. In general, a prisoner should be taken before a magistrate for examination as soon as circum stances will allow. State v. Freeman, 86 N. C. 683. Where a man was arrested on suspicion of felony, a delay of three days in taking him up for examination was held unreasonable. Wright v. Court, 4 B. & C. 596. A prisoner may be detained a reasonable time while the officer tries to find a justice before whom to bring him. Arnold v. Steeves, 10 Wend. 514. So, where one is arrested on probable ground of suspicion, he may lawfully be detained a reasonable time while a warrant is taken out for him. Wheeler v. Nesbitt, 24 How. 544. 2 The statute 2 and 3 P. and M., c. 10, is repealed. By statute 11 and 12 Vic., c. 42, § 17, when a person appears or is brought before a justice or justices, charged with an indictable offense, the justice or one of the justices shall "read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words of the like effect: 'Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you on your trial;' and what ever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or jus tices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned: and afterwards, upon the trial of said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same; provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favor and nothing to fear from any threat that may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him on the trial, notwithstanding such promise or threat; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person." Some further provisions are made by statute 30 and 31 Vic., c. 35. The statement of one defendant is not evidence against another arrested on the same charge. Reg. v. Swinnerton, 1 C. & M. 593. It must not be taken on oath, or it will be inadmissible. Rex |