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To what persons in an affray notice shall be held
to extend; and
of notice in the case of third persons
constable, and arrest in the King's name. (o) And this kind of notification by implication of law will hold also in cases where public officers, having warrants, directed to them as such, to execute, are resisted, and killed in the attempt. (p) Thus, where a warrant had been granted against the prisoner by a justice of peace for an assault, and directed to the constable of Pattishal, and delivered by the person who had obtained it to the deceased, to execute, as constable of the parish, and it appeared that the deceased went to the prisoner's house in the daytime to execute the warrant, had his constable's staff with him, and gave notice of his business, and further, that he had before acted as constable of the parish, and was generally known as such; it was determined that this was sufficient evidence and notification of the deceased being constable, although there were no proof of his appointment, or of his being sworn into the office. (q)
It is laid down in one case, that if, upon an affray, the constable, or others in his assistance, come to suppress it, and preserve the peace, and be killed in executing their office, it is murder in law, although the murderer knew not the party killed, and though the affray were sudden; because he set himself against the justice of the realm. (r) It is said, however, that in order to reconcile this with other authorities, it seems that the party killing must have had implied notice of the character in which the peace officer and his assistants interfered, though not a personal knowledge of them. (s) For it is elsewhere laid down, that if there be a sudden affray, and the constable come in, and, endeavouring to appease it, be killed by one of the company who knew him, it is murder in the party killing, and in such of the others as knew the constable, and abetted the party in the fact; but only manslaughter in those who knew not the constable : (t) and that others continuing in the affray, neither knowing the constable, nor abetting to his death, would not be guilty even of manslaughter. (u) But these positions do not apply to an affray deliberately engaged in by parties determined to make common cause, and to maintain it by force. (w)
It is however agreed, that if a bailiff or other officer be resisted
otherwise as to the writ or process
arrested. 9 Co. 69 b.
(0) 1 Hale 583.
· ́(p) 1 East. P. C. c. 5. s. 81. p. 315.
(4) Rex v. Gordon, Northampton Spr. Ass. 1789, cor. Thomson, B. afterwards considered at a conference of all the Judges, 26th June, 1789. See 1 East. P. C. c. 5. s. 81. p. 315. (r) Young's case, 4 Co. 40 b. 3 Inst. 52.
(s) East. P. C. c. 5. s. 82. p. 316. (1) 1 Hale 438, 446, 461. Kel. 115, 116.
(u) 1 Hale 446. Lord Hale adds, quod tamen quære, but (as it is said i East. P. C. c. 5. s. 82. p. 316.) perhaps over cautiously, if in truth there were no abetment.
(w) See as to the cases of that kind, ante, p. 24, 25.
in the regular discharge of his duty in executing process against a party, and a third person, even the servant or friend of the party resisting, come in and take part against the officer, and kill him, it will be murder, though he knew him not.(r) But it is suggested, that, in this case, in order to make it murder in the servant or friend, the party whom they came in to assist must have had due notice of the officer's authority: and that if the offence would not have been murder in the party himself resisting for want of such notice, neither would it in the servant or friend under the like ignorance.(y) The law upon this point may, perhaps, hardly seem to be reconcileable with that above-mentioned, of a person not knowing the constable, and killing him in an affray; but it is de. fended on the principle, that every person wilfully engaging, in cool blood, in a breach of the peace, by assaulting another instead of endeavouring to assuage the dispute, is bound first to satisfy himself of the justice of the cause he espouses at his peril. (3) And, upon this principle, if a stranger seeing two persons engaged, one of them a bailiff, attacking the other with a sword, and the other resisting an arrest by such bailiff, interfere between them without knowing the bailiff, for the express purpose of defending the party attacked against the bailiff he must abide the consequences at his peril; but if he interfere, not for the purpose of aiding one party against the other, but with intent only to preserve the peace, and prevent mischief, and in so doing happen tokill the bailiff, the case would possibly fall under a different consideration. (a)
In all cases, whether criminal or civil, where doors may be Notice before 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 proceed to that extremity.(b) In a case where an outer door had been broken open by two constables and a gamekeeper, to execute a warrant granted by 22 and 23 Car. 2. c. 25. s. 2. to search for, and seize any guns, &c. for destroying game and it appeared, that the door was broken open without the party having been previously requested to open it; the court held, that, in a case of misdemeanor, a previous demand of admittance was clearly necessary, before an outer door was broken open. Abbott, C. J. said, "it is not at present necessary to decide how far in the case of a
person charged with felony it would be necessary to make a pre"vious demand of admittance, before you could justify breaking open the outer door of the house; because I am clearly of opi-
(x)1 Hawk. P. C. c. 31. s. 57. Keb. 87. 4 Co. 40 b. 1 East. P. C. c. 5. s. 82. p. 316.
(y) 1 East. P. C. c. 5. s. 82. p. 316. (z) 1 Hawk. P. C. c. 31. s. 59. 1 East. P. C. c. 5. s. 82. p. 316, 317, where the grounds upon which the law in each of these cases may be supported, and considered as reconcileable, are more fully stated.
(a) See the case of Sir C. Standlie (b) Fost. 320. 2 Hawk. P. C. c. 14. and Andrews, Sid. 159, where Andrews, s. 1. 1 East. P. C. c. 5. s. 87. p. 324.
under similar circumstances, washolden
Notice by private bailiff.
nion, that, in the case of a misdemeanor, such previous demand " is requisite." Bayley, J. said, generally, "even in the execu"tion of criminal process, you must demand admittance, before you can justify breaking open the outer door. That point "was mentioned in the judgment of the Court in Burdett v. "Abbott."(b) The question as to what should be considered as due notice was much considered in a case where two officers went to the workshop of a person, against whom they had an escape warrant; and, finding the shop door shut, called out to the person, and informed him that they had an escape warrant against him, and required him to surrender, otherwise they said they would break open the door; and, upon the person's refusing to surrender, they broke open the door, and one of their assistants was immediately killed. Nine of the Judges were of opinion, that no precise form of words was required in a case of this kind; and that it is sufficient if the party has notice that the officer comes not as a mere trespasser, but claiming to act under a proper authority. The Judges who differed, thought that the officers ought to have declared, in an explicit manner, what sort of warrant they had; and that an escape does not, ex vi termini, nor in the notion of law, imply any degree of force, or breach of the peace; and, consequently, that the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of the peace; and that, for want of this due notice, the officers were not to be considered as acting in discharge of their duty, but as mere trespassers. (c)
In the case of a private or special bailiff, either it must appear that the party knew that he was such officer, as where the party said, "Stand off, I know you well enough; come at your peril;" or, that there was some such notification thereof that the party might have known it, as by saying, "I arrest you." These words, or words to the like effect, give sufficient notice; and if the person using them be a bailiff, and have a warrant, the killing of such officer will be murder. (d) A private bailiff ought also to shew the warrant upon which he acts, if it is demanded: (e) and with respect to the writ or process against the party, both the public and private bailiff, in case the party submit to the arrest and make the demand, are bound to shew at whose suit, and for what cause the arrest is made, out of what court the process issues, and when and where returnable. (f) In no case, however, is he required to part with the warrant out of his own possession: for that is his justification. (g)
As to the re
It may be observed generally, that where an officer, in executing gularity of the his office, proceeds irregularly, and exceeds the limits of his auproceeding. thority, the law gives him no protection in that excess and if he
(b) Launock v. Brown, 2 B. & A.
(c) Rex v. Curtis, Fost. 136, 137.
9 Co. 69 b.
(e) Hale 583. That is, the warrant by which he is constituted bailiff; which a bailiff or officer, juratus et cognitus, need not shew upon the ar
rest, 1 Hale 458. And see 1 Hale 459, where it is said that a justice of peace may issue his warrant to a private person; but then such person must shew his warrant, or signify the contents of it.
(f) 1 Hale 458, note (g). 5 Co. 54 a. 9 Co. 69 a.
(g) 1 East. P. C. c. 5. s. 83. p. 319.
be killed, the offence will amount to no more than manslaughter in the person whose liberty is so invaded. (h) He should be careful, therefore, to execute process only within the jurisdiction of the court from whence it issues; as, if it be executed out of such jurisdiction, the killing the officer attempting to enforce the execution of it will be only manslaughter. (i) But, if the process be executed within the jurisdiction of the court or magistrate from whence it is issued, it will be sufficient, though it be executed out of the vill of the constable, provided it be directed to a particular constable by name, or even by his name of office. (k) And the officer must also be careful not to make an arrest on a Sunday, except in cases of treason, felony, or breach of the peace; as, in all other cases, an arrest on that day will be the same as if done without any authority. (1) But process may be executed in the night time, as well as by day. (m)
The right of officers to break open windows or doors, in order to make an arrest, has been a subject of some litigation: but many of the points have been settled, and require to be shortly noticed. And the general rule must be kept in mind, that in every case, whether criminal or civil, in which 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 proceed to that extremity. (n)
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 the notification, demand, and refusal which have been mentioned. (o) So, where a minister of justice comes armed with process, founded on a breach of the peace, doors may be broken. (p) And it is also settled, upon unquestionable authorities, that where an injury to the public has been committed, in the shape of an insult to any of the courts of justice, on which process of contempt is issued, the officer charged with the execution of such process may break open doors, if necessary, in order to execute it. (q) And the officer may act in the same manner upon a capias utlagatum, or capias pro fine, (r) or upon an habere facias possessionem. (s) The same force may be used where a for
(h) Fost. 312.
open, where one known to have com
(k) 1 Hale 459. 2 Hawk. P. C. c. 13. s. 27, 30. 1 East. P. C. c. 5. s. 80. p. 314. And see 5 G. 4. c. 18. Ante, 510.
(i) 1 Hale 458, 459. 1 East. P. C. mitted a treason or felony, or to have c. 5. s. 80. p. 314. given another a dangerous wound, is pursued, either with or without a warrant, by a constable or private. person.
(p) Fost. 320. 1 Hale 459. 2 Hawk. P. C. c. 14. s. 3. Curtis's case, Fost.
() 29 Car. 2. c. 7. 1 East. P. C. c. 5. s. 88. p. 324, 325. The statute makes void all process, warrants, &c. served and executed on a Sunday, except in the cases mentioned in the text.
(m) 9 Co. 66 a. 1 Hale 457. Hawk. P. C. c. 31. s. 62.
(n) Fost. 320. 2 Hawk. P. C. c. 14. s. 1. Ante, 517.
(0) Fost. 320. 1 Hale 459. And see 2 Hawk. P. C. c. 14. s. 7. where it is said that doors may be broken
(q) Burdett v. Abbott, 14 East. 157. where the process of contempt proceeded upon the order of the House of Commons; and see Semaynes' case, Cro. Eliz. 909.; and Brigg's case, 1 Rol. Rep. 336.
(r) 1 Hale 459. 2 Hawk. P. C. c. 14. s. 4.
(s) 1 Hale 458.
5 Co. 95 b.
Right of officers to break or doors to make an arrest.
In civil cases
is his castle.
cible entry or detainer is found by inquisition before justices of peace, or appears upon their view; (t) and also where the proceeding is upon a warrant of a justice of peace, for levying a penalty on a conviction grounded on any statute, which gives the whole or any part of such penalty to the king. (7) But in this latter case the officer executing the warrant must, if required, shew the same to the person whose goods and chattels are distrained, and suffer a copy of it to be taken. (w)
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. (x) For where a person lies under a probable suspicion only, and is not indicted, (y) it is said to be the better opinion, that the breaking open doors without a warrant, in order to apprehend him, cannot be justified: (3) or must at least be considered as done at the peril of proving that the party, so apprehended on suspicion, is guilty. (a) But a different doctrine appears to have formerly prevailed upon this point; by which it was held that if there were a charge of felony laid before the constable, and reasonable ground of suspicion, such constable might break open doors, though he had no warrant. (b)
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: (c) 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 alehouses, the constable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disorder. (d) And further, that where an affray is made in a house in the view or hearing of a constable, 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 case, or to apprehend the affrayers in either case, he may justify breaking open the doors. (e)
But this mode of proceeding, by breaking the doors of the party, a man's house is founded upon the necessity of the measure for the public weal, and is not permitted to the particular interest of an individual. In civil suits, therefore, the principle that a man's house is his castle, for safety and repose to himself and his family, is admitted; and, accordingly, in such cases, an officer cannot justify the breaking open an outward door or window to execute the process. (ƒ) he do so, he will be a trespasser; and if the occupier of the house (1) 2 Hawk. P. C. c. 14. s. 6. Ante, 4.9 a.
(c) 2 Hale 95.
(d) 2 Hale 95.; and it is added, “This "is constantly used in London and "Middlesex." But see ante, 272, 273. (e) 2 Hawk. P. C. c. 14. s. 8.
(f) Cook's case, Cro. Car. 537. Fost. 319.