on the arrest itself will next be considered. When the arrest is merely on suspicion, the prisoner is not to be handcuffed, unless it be necessary to prevent his escape; and he should not be subjected to any unnecessary restraint. Threat or inducement.] After the arrest, no officer, constable, or other person should offer to the party arrested any inducement by threat, promise, or otherwise to make any disclosure. Constables cannot be too cautious in abstaining from interrogating prisoners in their custody. Doherty, C. J. expressed his unqualified disapprobation of the practice of persons, without any lawful authority, interrogating prisoners on the subject of their charge, and declared he would not permit admissions so obtained from prisoners to be given in evidence against them (r). And it has been held by Lefroy, C. J. that answers given to a constable upon questions put by him, though he had given the prisoner a previous caution, are inadmissible in evidence (s). The practice of questioning prisoners by police officers is entirely opposed to the spirit of our law, for by the law of this country no person ought to be made to criminate himself; if there is evidence of an offence, a police officer is justified, after a proper caution, in putting to a suspected person interrogatories, with a view to ascertaining whether or not there are fair and reasonable grounds for apprehending him; even this course should be very sparingly resorted to (t). But a constable ought not to caution a prisoner not to say anything, but if the prisoner does say something, it is the duty of the constable to hear what it is he has to say (u). Constable should not question his prisoner.] It may here be further mentioned, that the right of searching persons in custody must depend on the circumstances of each particular case; and the mere fact of a person being drunk and disorderly will not justify a police officer searching his person, although the officer may have received general orders to search all persons in custody: but any person, whatever may be the nature of the charge, may so conduct himself, by reason of violence of language, or conduct, that it may be prudent and right to search him, as well for his own protection as to prevent a breach of the peace (v). The same rule applies to handcuffing persons in custody, and the right must depend on the circumstance of each particular case, as for instance, the nature of the charge and the conduct and temper of the person in custody (w). A constable cannot justify handcuffing a prisoner unless he has attempted to escape, or unless it be necessary in order to prevent his doing so (x). A constable who apprehends a prisoner has no right to take away from him any money which he has about him, unless it is in some way connected with the offence with which he is charged (y). Duty of magistrate on arrest.] If, therefore, a prisoner has been deprived of his property on his apprehension, it will be well for him or his professional adviser to apply to the magistrate to order its restoration. In such case the justices will consider whether or not there is any connexion between the subject matter of the charge and the property sought to be returned, or whether or not the property is the produce of crimes which may form the subject of inquiry. If it appear not to be, they will act wisely in ordering it to be restored, provided that it be in itself of a harmless nature. It will probably, however, be urged against such a course, that if it be right that the prisoner should have back his property, the chairman or judge at his trial can then make an order for the purpose; but when it is remembered that the re-delivery at the time of trial may be too late to enable the accused to avail himself of it for the purposes of his defence, the justice of at once making an order for the restoration is strikingly apparent. Should the justices hesitate to make such an order upon any doubt as to their powers, it be answered that the same powers possessed by the judge at the trial, which are constantly exercised by them, are possessed in equal fullness by the committing magistrates (z). may (v) Leigh v. Cole, 6 Cox, C.C. 329. () Ib. (x) Wright v. Court, 4 B. & C. 596; Broughton v. Jackson, 18 Q. B. 378. (y) R. v. O'Donnell, 7 C. & P. 138; see R. v. Jones, 6 id. 343; R. v. Frost, 9 id. 131; R. v. Kinsey, 7 id. 447; R. v. Barnett, 3 id. 600; R. v. Burgiss, 7 id. 488; R. v. Rooney, id. 515. (z) See Saunders' Prac. Mag. 189. Escape.] Whenever an officer having a party lawfully in his custody voluntarily permits him to escape, the officer is involved in the legal guilt of the crime charged; and where he negligently permits the escape, he is guilty of a misdemeanor (zz). If any credible witness proves upon oath before a J.P. that he has reasonable cause to suspect, and states such facts to the magistrate as go to prove that any property of his has been taken or stolen, for the taking of which a person may be indicted or punished on summary conviction, and that the property is in the dwelling-house or other place, the justice may grant a warrant to search for it (a), and should do so if reasonable and probable ground for such suspicion be laid before him. It is to be observed that a positive oath is not required to justify a magistrate in granting this warrant (b). The magistrate has power to authorize the seizure of property only where there is information on oath and reasonable ground to suspect that it has been stolen, or some offence under the provisions of the 24 & 25 Vic. c. 96 (c), committed on or with respect to it; and in no other instance, unless it comes within the provisions of some special statutes which authorize the granting of the warrant. (zz) Hawk. c. 19, s. 40, see as to what is a voluntary escape, id. s. 10, 1 Ch. C. L. 59; Dickinson v. Browne, Peake's N. P. C. 234 ; Dalt. J. c. 150; suffering a prisoner to kill himself is a negligent escape, id. An escape is a common law offence; a voluntary escape permitted by constable or private person is either a felony or a misdemeanor, and the punishment the same as the punishment for the offence of which the prisoner was guilty. A negligent escape permitted by a constable or private person is a misdemeanor only; see Lefroy, C. L. 98; see as to re- Form of information.] The form of the information is the same as other informations (d), and the justice should follow the directions given in the schedule to 14 & 15 Vic. c. 93, for taking informations in all criminal cases. Form of warrant.] The form of the warrant is to be found in the schedule to the stat. 14 & 15 Vic. c. 93 (e). The warrant should specify the place to be searched. It will be seen, on reference to the form, that the search is to be made in the day time; this should not be departed from unless upon very sufficient grounds, such as the likelihood of the goods being gone before morning (f). To whom directed, and mode of execution.] The warrant should be directed to the Sub-inspector or Head Constable of Constabulary, as directed by 14 & 15 Vic. c. 93, s. 25, and it is advised that the party complaining should be present at the search, because he knows his goods (g). The officer must strictly observe the direction of the warrant. Thus, where a constable who had a warrant to search for specific articles that had been stolen, found and took away those and certain others, supposed to have been stolen, but which were not also mentioned in the warrant, it was held that the constable was a trespasser (h). If admission be refused, the officer, after the usual demand and notification of his business, may break open the outer door of the house, and he may also break open boxes after the keys have been demanded (i). The provisions of the 14 & 15 Vic. c. 93, point out the limit within which this warrant may be executed, together with the mode of certifying it for execution in another district or country (j). Goods and party to be brought before J.P.] The goods, and the person in whose possession they are found, are forthwith to (d) See form A, schedule to 14 & 15 Vic. c. 93. (e) See form Ee. (f) 2 Hale, 150; 5 Burn, 482; 1 Ch. C.L. 65; 3 Dick, J. 505. Justices are not bound to follow the forms in the schedule to 14 & 15 Vic. c. 93, provided the form they use be sufficient in substance and effect. See s. 36. (g) 2 Hale, 150. (h) Crozier v. Cundy, 9 D. & R. 224; Price v. Messenger, 2 B. & P. 158; 3 Esp. 96. (i) Ratcliffe v. Burton, 3 Bos. & P. 228; Cooper v. Booth, 3 Esp. 135: 2 Bos. & P. 160, 1 Tr. 535, 1 Ch. C. L. 57, 66. (j) See s. 26. be brought by the person who executes the warrant before the justice who signed it, or some one in the neighbourhood. The constable should bring the prisoner before the nearest magistrate, so that the prisoner should not be put to unnecessary inconvenience. Goods, how to be disposed of.] If, on bringing them before the justice, it appears that the goods were not stolen, they are to be restored to the possessor. If it appears they were stolen, they are not to be delivered to the proprietor, but deposited with the constable in order to be produced at the trial (7). If the property is of such a nature that it cannot be committed to the custody of the officer, as a horse or other animal requiring sustenance, it is usually sent to livery, or, upon satisfactory proof of ownership, the J.P. frequently delivers the animal to the party whose property it appears to be, on his giving sufficient security for its forthcoming. In this case the magistrate acts, to a certain extent, upon his own responsibility, and should therefore take care that the security be sufficient; and where the question of ownership appears doubtful, or is disputed, he will always act more safely in not taking upon himself to decide it (m). Party, how to be dealt with.] If the goods were not stolen by the party arrested, but by another that sold and delivered them to him, and if it appear that he was ignorant that they were stolen, he may be discharged as an offender, and bound over to give evidence as a witness against the person that sold them (n). As a general principle, when a man in whose possession stolen property is found gives a reasonable account of how he came by it, as by telling the name of the person from whom he received it, and who is known to be the real person, it is incumbent on the prosecutor to show that the account is false; but if the account given by the prisoner is unreasonable or improbable on the face of it, the onus of proving its truth lies on him (0). In (7) 2 Hale, 151; 1 N.W.J.P. 260. (m) Ib. An oversight has been committed by the legislature in repealing the provisions contained in the Summary Jurisdiction Act, 14 & 15 Vic. c. 92, s. 4, for the restitution or disposal of the stolen property mentioned in that section. A magistrate has now no express power conferred upon him in this respect, and must act altogether upon his own judgment and responsibility. Sections 2, 3, 4, & 5 of 14 & 15 Vic. c. 92, are repealed by 24 & 25 Vic. c. 95. (n) 2 Hale, 152. (0) R. v. Crowhurst, 1 Car. & K. 370; K. v. Hughes, 1 Cox, C.C. 176. |