ings, and will often save an innocent person from the stigma and injury of being called upon to answer a criminal charge for which there is no foundation. Again, it very commonly happens that not only the person that gives the information to the person who fills up the summons, but the latter individual also, are so ignorant of law that they mistake a mere civil injury for a criminal offence; and, therefore, if permitted to act on their own opinion, would often charge an innocent person with an indictable offence, and thereby wrongfully require him to appear to answer to a charge for which there was no pretence (g). Appearance by arrest.] An arrest has been defined to be the apprehending or detaining of a person in order that he may be forthcoming to answer an alleged or suspected crime (h). In all cases of an aggravated nature, or where the accused is likely to abscond, the proper mode of compelling his attendance is by arrest. Accordingly, it is provided by the 14 & 15 Vic. c. 93, s. 11, that "in all cases of indictable crimes and offences (where an information that any person has committed the same shall have been taken in writing and on oath), the justice shall issue a warrant (i) to arrest and bring such person before him or some other justice of the same county, to answer to the complaint made in the information; or if he shall think that the ends of justice would be thereby sufficiently answered, it shall be lawful for him, instead of issuing such warrant, to issue a summons in the first instance to such person, requiring him to appear and answer to such complaint; but nothing therein contained shall prevent any justice from issuing a warrant for the arrest of such person at any time before or after the time mentioned in such summons." Binding informant to prosecute.] After taking such information to found an arrest, the magistrate should bind the informant by recognizance () to appear at the court or place where the (9) A very similar course is recommended to be adopted by Mr. Greaves in his report on C. P. to the Lord Chancellor, 1856. (h) 4 Bl. Com. 289, Burns' J. Arrest. (i) See form Bb. given in schedule to 14 & 15 Vic. c. 93. (j) For form, see schedule 14 & 15 Vic. c. 93. offender is to be tried, or where the complaint is to be heard, to prosecute or give evidence against the offender (k). Who may be arrested, and when.] All members of the community are subject to arrest when charged with the commission of a crime, and may be arrested either by day or by night (1), and on Sunday (m), no place affording protection against the criminal law (n). Modes of arrest.] There are four modes of making an arrest upon a criminal charge, viz.-I. By warrant; II. By an officer without a warrant; III. By a private person without a warrant; IV. By hue and cry. By warrant.] For state offences, warrants of arrest may be granted by the privy council or a secretary of state (o), and warrants from any of the judges of the Queen's Bench (they being conservators of the peace throughout the whole kingdom), may be executed in any part of Ireland, and they are accordingly tested or dated as of Ireland, and not as of any particular county. Some acts of parliament contain express authority for justices of the peace to grant a warrant of arrest in cases of misdemeanor; but it may be stated generally, that whenever a statute gives to justices of the peace jurisdiction over any offence, or a power to require any person to do a certain thing ordained by such statute, it impliedly gives them a power to grant a warrant to bring before them any person within the precincts of their commission who is accused of such offence, or compellable to do the thing ordained by such statute (p); and it is now settled that a magistrate, in all cases of indictable crimes and offences committed within the limits of his jurisdiction, may issue a warrant to bring such person before him or some other justice of the same county, to answer to the complaint made in the information (9). This warrant should state the specific offence with which the party is charged, and that information thereof was duly made on oath before the magistrate (r). (k) Ib. s. 10. () Mackally's Case, 9 Co. 66; Davis v. Russell, 5 Bing. 354. (m) 14 & 15 Vic. c. 93, s. 11. (n) 1 Ch. C. L. 15. (0) R. v. Kendal, 1 Ld. Ray. 65; Entick v. Carrington, 19 St. Tr. 1029. (p) 2 Hawk. c. 13, s. 15. (g) 14 & 15 Vic. c. 93, s. 11. (r) Caudle v. Seymour, 1 G. & D. Direction of warrant.] It sometimes happens, though not usually, that the warrant is directed to more than one person; should this happen, then any one to whom the warrant is directed may act in the execution of it (s). So, if directed to several jointly, without exclusive words to prevent its execution by some or one of them, any one or more may execute it (t); but it is otherwise if it be directed to persons "jointly and not severally" (u). All warrants in proceedings punishable either by indictment or summary conviction must, in Ireland, be addressed to the sub-inspector or head constable of the place where the petty sessions for the district are held (v), and he or any other head or other constable appointed by him is the proper person to execute the warrant (w). But in a case of emergency the justice may address such warrant to any constable of the county, who may execute it at any place within the county in which the justice issuing it has jurisdiction; or, in case of fresh pursuit of an offender, at any place in the next adjoining county (x). Signing the warrant.] Sealing is no longer necessary in addition to the signature of the justice by whom the warrant is signed (y). But no warrant can be signed in blank (z). A warrant is rendered void by being materially altered or interlined, after the signature of the justice, by any other person (a). To prevent all doubt or question on this subject, the magistrate ought before signing the warrant to initial any erasures or interlineations that may appear in the document. Execution of warrant.] A third person may, in the presence of the person authorized, assist him in executing the warrant, even though the person authorized be not actually present, if he 454; 1 Q. B. 889; R. v. Constable, id. 894; R. v. Scotton, 5 Q. B. 493; exparte Aldridge, 2 B. & C. 600; for form of this warrant, with instructions for filling, see schedule to 14 & 15 Vic. c. 93, form Bb. (8) 1 East Pl. 320 Yel. 25. (t) Boyd v. Durand, 2 Taunt. 161. (u) If a warrant be directed to a sheriff he may order his under sheriff, bailiff, or other sworn officer, to execute it, or he may order any one, though not his officer, to execute it, (v) 14 & 15 Vic. c. 93, s. 25. (x) Ib.; see as to powers of constables to act in adjoining counties, 2 & 3 Vic. c. 75, s. 15; and 11 & 12 Vic. c. 72. (y) 14 & 15 Vic. c. 93, s. 36. (a) 1 Hale, 457. be at hand and acting in the execution of the warrant (b). A warrant continues in force during the lifetime of the justice who grants it, or until it has been fully executed (c). If the party against whom the criminal charge is made be in prison for debt, the Court of Queen's Bench or a judge of that court will grant a writ of habeas corpus directed to the keeper of the gaol where he is, to take such party before a magistrate, to be examined from day to day on the criminal charge (d). The person executing, or attempting to execute, a warrant of arrest, is bound to notify to the party against whom such warrant is issued, that he purposes to act under the authority of the warrant (e). The constable executing a warrant of arrest must notify the substance of the warrant, but need not show it (f). A private person or officer acting out of his precinct is to show the warrant, if sight of it be demanded (g). If, on delivery of the warrant for inspection, the party illegally refuse to redeliver it to the officer, such officer may take it by force, using no greater violence than is necessary (h). Evading arrest.] If the party to be arrested fly from or forcibly resist the person executing the warrant, after notice of the intention of the officer to arrest him, the officer is bound to use all means necessary to effect an arrest and prevent escape (i). And if resistance be made to persons having authority to arrest or imprison, they using proper means for that purpose, and are resisted in so doing and killed, it will be murder in all who take a part in such resistance; for, under circumstances of resistance, the person having authority to arrest or imprison may repel force by force, and need not give back, and will be justified if death should ensue in the struggle; while, on the other hand, the persons resisting will be guilty of murder (j). (b) 2 Hawk. P. C. c. 13, s. 29; 2 Hale, P. Č. 115; R. v. Patience, 7 Car, and P. 775; R. v. Whalley, ib. 245; Blatch v. Austen, Cowp. 63. (c) 8 T. R. 110; Peake, N. P. C. 344. (d) Exparte Griffith, 5 B. & Al. 730. (e) Curtis' case, Fost. 137. Bac. Abr. Constable D. 6, Co. 54, 9 Co. 69. (g) 2 Hawk. c. 13, s. 28; 2 Hale, 116; 1 East, P. C. 312, 319; 8 T. R. 188. (h) R. v. Milton, 3 C. & P. 31. (i) 1 Hale, P. C. 489; 1 East, P. C. 248, 300. (j) Fost. 270, 271; 1 Hale, 494; 3 Inst. 56; 2 Hale, 117, 8; 1 Russ. on Crime, 535, 665. But when the party does not resist, but merely flies to avoid the arrest, the conduct of the officer should be cautiously regulated by the nature of the proceedings. For, in case of a breach of the peace, or any other misdemeanor short of felony, if the officer should pursue the defendant flying in order to avoid an arrest, and should kill him in the pursuit, it will be murder or manslaughter according to the peculiar circumstances by which such homicide may have been attended (k). But if a felony be committed, and the felon fly from justice, or a dangerous wound be given, it is the duty of every man to use his best endeavours for preventing an escape; and if, in pursuit, the party flying be killed when he cannot otherwise be overtaken, this will be deemed justifiable homicide (7); and the same rule holds if a felon after an arrest break away as he is being carried to gaol, and his pursuers cannot retake without killing him (m). The rule on this subject is clearly laid down by Bushe, C.J., in these words, "The law is simply this: a constable in the execution of his duty is justified in taking away life if it be indispensably necessary, but not otherwise. If he have a warrant for any crime, from the highest to the lowest, whether a felony or a misdemeanor, and the party resist, and the constable has no means of making him amenable except by killing him, he is justified in so doing. But the case of flight is different from resistance. If the warrant be for felony, flight is tantamount to resistance, and the flying felon may be justifiably killed, if he cannot be otherwise secured. In case of misdemeanor, resistance will justify killing, though flight will not; for in such cases the law considers it better that the accused should escape than that a life should be taken” (n). Where arrest may take place.] A person may be arrested wherever he can be met with, no place affording protection to offenders against the criminal law (o). In cases of treason, felony, or breach of the peace, any person to whom the warrant (k) 1 Russ. 166. (1) 1 Hale, 489, 490; 1 Hawk. P. C. c. 28, s. 11; Fost. 271; 4 Bla. Com. 179. (m) Id. ibid. 1 East. P. C. c. 5, s. 67, p. 298. (n) R. v. Finnerty, 1 Cr. & D. C. C. 167, and see R. v. Daunt, ib. For the latest authorities on this subject, see R v. Thompson, 1 Moo. C. C. 80; R. v. Curvan, ib. 132. (0) 1 Ch. C. L. 15; ante, p. 40. |