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Ford's case, Arrest on charge of felony imperfectly expressed.
Even in the case of a constable, it was formerly supposed to be necessary, that there should have been a felony committed in fact, which the constable must have ascertained at his peril : but it has since been determined, that a peace officer may justify an arrest on a charge of felony, on reasonable cause of suspicion, without a warrant; although it should afterwards appear that no felony had been committed.(m) And where a private person suspecting another of felony, has laid his grounds of suspicion before a constable, and required his assistance to take him, the constable may justify killing the party, if he fly, and cannot otherwise be taken, though in truth he were innocent. But in such case, where no hue and cry is levied, the party suspecting ought to be present, as the justification must be that the constable did aid him in taking the party suspected: and the constable ought to be informed of the grounds of suspicion, that he may judge of the reasonableness of it.(n)
In a late case it was held, that killing an officer will amount to murder, though he has no warrant, and was not present when any felony was committed, but takes the party upon a charge only ; and though such charge does not in terms specify all the particulars necessary to constitute the felony. And it appears, from the same case, that it will be no excuse for killing an officer that such officer was proceeding to handcuff the party who was in his custody upon a charge of felony. The prisoner had produced a forged bank note; and from his conduct at the time, which justified a suspicion that he knew it to be forged, he was apprehended and carried to a constable, and delivered with the note to the constable; and the charge to the constable was “because he had a forged note in his possession.” After he had been in custody at the constable's some hours, namely, from six o'clock in the evening until eleven, the constable was handcuffing him to another man, when he pulled out a pistol and shot the constable. The constable was not killed, but the prisoner was indicted upon the 43 Geo. 3. c. 58.; and it was urged on his behalf that the charge imported no legal offence, for unless he knew the note to be forged he was no felon; and if the charge was insufficient, the arrest was illegal; and killing the officer (if that had taken place) would have been only manslaughter. But the prisoner baving been convicted, and the case reserved for the consideration of the Judges, they were all of opinion that this defect in the charge was immaterial ; that it was not necessary for such a charge to contain the same accurate description of the offence as would be required in an indictment; and that the charge in question must have been considered as imputing to the prisoner a guilty possession.(a)
In this case there was not only reasonable suspicion of a felony
(m) Samue! v. Payne, Dougl. 359. (a) Rex v. Ford, East. T. 1817. MS.
would have reduced the case to manslaughter if death had ensued.
The prisoner having been found guilty, sentence of death was passed upon him: but the learned judge (Mr. Baron Garrow) respited the execution, and submitted the case to the opinion of the Judges; all of whom (except Best, C. J., and Alexander, C. B., who were absent) met and took it into consideration. The majority, namely, Abbott, C. J., Graham, B., Bayley, J., Park, J., Garrow, B., Fullock, B., Littledale, J., and Gaselee, J., held that as an actual arrest would have been illegal, the attempt to make it when the prisoner was in such a situation that he could not get away, and when the waiting to give notice might have enabled the constable to complete the arrest, was such a provocation as, if death had ensued, would have made the case manslaughter only; and that therefore the conviction was wrong. Holroyd, J., and Burrough, J., thought otherwise.(b)
A constable, or other known conservator of the peace, may law- Autbority to fully interpose upon his own view to prevent a breach of the peace, prison in cases and to quiet an affray; and if he or any of his assistants, whether of misdemeacommanded or not, be killed, it will be murder in all who take nors.
(6) Rex v. Thompson, Hil. T. 1825, 1 Ry. and Mood. 80.
part in the resistance; there being either implied or express notification of the character in which he interposed.(o) It has, however, often been questioned, how far a constable or other peace officer is authorized to arrest a person upon a charge by another of a mere breach of the peace, after the affray is ended, and peace restored, without a special warrant from a magistrate ; and it appears to be the better opinion, that he has no such authority.(p) But if one menace another to kill him, and complaint be made thereof to the constable forthwith, such constable may, in order to avoid the present danger, arrest the party, and detain him till
he can conveniently bring him to a justice of the peace. (9) Of apprehending night
It has been said, that if peace officers meet with night-walkers, walkers. or persons unduly armed, who will not yield themselves, but
resist or fly before they are apprehended, and who are upon necessity slain, because they cannot otherwise be overtaken, it is no felony in the officers or their assistants, though the parties killed were innocent.(r) But it is doubted whether, at this day, so great a degree of severity would be either justifiable or necessary (especially in the case of bare flight), unless there were a reasonable suspicion of felony.(s) And it has been considered, that the taking up of a person in the night, as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person so arrested were innocent, and there were no reasonable grounds of suspicion to mislead the officer.(t)
(0) 1 Hale 463. I Hawk. P. C. c. 31. to the apprehension of night-walkers, s. 54. Fost. 310, 311. | East. P. C. and persons unduly armed. And see c. 5. s. 71. p. 303.
Lawrence v. Hedger, 3 Taunt. 14. (p) I East. P.C. c. 5. s. 72. p. 305, (8) 1 East. P. C. c. 5. s. 70. p. 303. who cites 2 Inst. 58. 2 Hawk. P. C. Both the statutes mentioned in the c. 12. s. 20. and c. 13. s. 8. 2 Lord last note were levelled against parRaym. 1301. Strickland v. Pell, Dalt. ticular descriptions of offenders, who c. I. s. 7.; and says, that there can be no roved about the country in bodies, in such authority for the purpose of im- a daring manner. prisoning or compelling the party to (t) Tooley's case, ? Lord Raym. find sureties ; though Lord Coke says, 1296. There is a MS, note of this case (4 Inst. 265.) that a constable may given by the editor of Lord Hale (2 take surety of the peace by obliga- Hale 89,) which states Lord Holt to tion. Lord Hale and some later au- have said, that, of late, constables had thorities have holden, that such officer made a practice of taking up people may arrest the party upon the charge only for walking the streets : but that of another, though the affray be over, he knew not whence they had such for the purpose of bringing him before authority. But see Lawrence v. Heda justice, to find sureties of the peace, ger, 3 Taunt. 14, where it was holden or for appearance. 2 Hale 90. Haod. That watchmen and beadies have aucock v. Sandham and others, 1785, thority, at common law, to arrest and and Williams r. Dempsey, 1787, cited detaiu in prison, for examination, perin East. P. C. id. 306. But see ante, sons walking in the streets at night, 273, 274.
whom there is reasonable ground to (9) 2 Hale 88. This power seems to suspect of felony, although there is be grounded on the duty of the officer no proof of felony having been comto prevent a probable felony; and mitted. And it has been said by Hawmust be governed by the same rules kius and others, that every private which apply to that case ; though person may, by the common law, arDalton (ch. 116. s. 3.) extends it even rest any suspicious night-walker, and to the prevention of a battery. Vide detain bim till he give a good account I East. P. C. c. 5. s. 72. p. 306. of himself. 2 Hawk. P. C. c. 13. s. 6.
(r) 2 Hale 85, 97. The statutes ? c. 8. s. 38.; and it has been beld, that a Ed. 3. c. 3. and 5 Bd. 3. c. 14. relate person may be indicted for being a
It has sometimes happened that peace officers have taken oppo- Officers taking site parties in an affray, and the death of one of them has ensued; opposite paras in the case put by Lord Hale, where A. and B., being constables of the vill of C., and a riot or quarrel happening between several persons, A. joined with one party, and commanded the adverse party to keep the peace, and B. joined with the other party, and in like manner commanded the adverse party to keep the peace, and the assistants and party of A. in the tumult killed B.(u) This, Lord Hale says, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other : (w) but upon this it has been remarked, that perhaps it had been better expressed, to have said, that inasmuch as they acted not so much with a view to keep the peace, as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever. (x) And in another case, Lord Hale says, that if the sheriff have a writ of possession against the house and lands of A., and A. pretending it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the king's writ. (y)
There is a late case, which appears to have been ruled upon the foregoing principles. Some sheriffs' officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted, struck one of the assailants, a woman, and as it was thought for some time had killed her: whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder; and at first, offered to take care also of their prisoner, but the latter was
common night-walker, as for a mis- refuse, or wilfully neglect, to take
soon rescued from them by the surrounding mob. The woman
Where private persons interpose in the case of sudden affrays, to sons interpos- part the combatants, and prevent mischief, and give express notice
of their friendly intent, it will be murder in either of the persons
is resisted, and may do this to the last extremity in cases of rea-
The authority of an officer, in civil cases, must be regulated and
in civil suits.(d) Authority to A press-warrant extends in terms to "seamen, seafaring men, impress sea
and cthers, whose occupations and callings are to work in vessels men.
and boats upon rivers ;” (e) and persons of this description may
But as this is a power of an extraordinary nature, it is highly requisite that no persons should assume it without being duly qualified for that purpose; as the especial protection which the law affords to its officers will not be extended to those who venture to act without proper authority. Thus, where the execution of a press-warrant is directed by the terms of the warrant (as is now always the case) not to be intrusted to any person but a commis
(2) Anon. Exeter Sum. Ass. 1793. I East. P. C. c. 5. s. 75. p. 307. The
same terms occur also in the warrant
(by Howell) 1323. Fost. 154: where
see an elaborate argument delivered (c) i Hale 481. Fost. 271.
by Mr. J. Foster, as recorder of Brisa (d) i Hawk. P. C. c. 28. s. 19. lol, in support of the legality of im(e) Rex v. Softly, 1 East. R. 466. I pressing seamen.