Giving evidence for the crown as king's evidence, does not entitle a person to a pardon in respect of undiscovered offences. to give the prisoner time to apply elsewhere. Per Aston J., in delivering the opinion of the judges in Mrs. Rudd's case, O. B., Dec. Sess. 1775. 1 Leach, 123. All the circumstances relative to a prisoner's claim of indemnity in such a case, not only may, but ought to be laid before the court, to enable them to exercise their discretion, whether, upon the grounds before them, the trial should be put off, and consequently have intimation given that the prisoner ought not to be prosecuted; for the discretionary power exercised by justices of the peace in admitting accomplices to be witnesses, founded in practice only, cannot control the authority of the court of gaol delivery, and exempt at all events the accomplice from being prosecuted. So held by nine of the judges, S. C. Mr. Justice Blackstone says, that an accomplice who has been admitted as a witness against his fellows "shall not afterwards be prosecuted for that or any other previous offence of the same degree." 4 Bla. Com. 331. Mrs. Rudd's case does not, however, warrant this position; and Mr. Christian is of opinion, that an accomplice has no claim to mercy beyond the offences in which he has been connected with the prisoners, and concerning which he has previously undergone an examination. 4 Bla. Com. 331. (notis) edit. 1809. And so it appears to be settled in the following cases: George Duce, a prisoner in Nottingham gaol for felony, was admitted king's evidence against Richard Barber, tried at the Lent Assizes, 1801, for the town of Nottingham, before Graham B., for receiving stolen goods from a bleaching ground; and on his evidence, fully and satisfactorily given, Barber was convicted. Duce was, of course, discharged from the gaol at Nottingham; but being under a charge of horse-stealing at Derby, he was sent to the gaol of that county, and afterwards tried before the same learned judge for that offence; was convicted and received sentence of death, with respite for transportation. But a doubt arising, whether his case did not fall within that equitable claim to mercy which is usually indulged to accomplices becoming witnesses for the crown, the question was submitted to the judges, who were unanimously of opinion, that the pardon was not to extend to offences for which the party might be liable to prosecution out of the county, and the prisoner underwent his sentence. Duce's case, Nott. & Derby Lent Ass. 1801, cor. Graham B., MS. C. C. R. So also at Northampton Lent Assizes, 1818, Thomas Lee, an accomplice, was, upon application by the counsel for the crown, taken before the grand jury, and examined as a witness on the trial of William Franklin and Abraham Cook for a highway robbery, and conducted himself with propriety, and told the truth. On a subsequent day, the said Thomas Lee was tried and convicted of burglary. Garrow B. submitted to the judges, Whether it were proper to prosecute him after he had been received as a witness for the crown. The judges held, that there was no legal objection to the prosecution, nor any general rule upon the subject; and the prisoner was transported for life. Thomas Lee's case, Northampton Lent Ass. 1818, cor. Garrow B., C. C. R. 361. And in a still more recent case, at Thetford Lent Ass. 1821, Thomas Brunton was admitted king's evidence on an indictment for burglary; but his account being in some parts almost incredible, and differing in others from what he had stated before the magistrate, Graham B. thought him unworthy of credit, and directed an acquittal. Brunton was afterwards tried for sheepstealing and convicted. On case, the judges thought the conviction right. R. v. Brunton, E. T. 1821. C. C. R. 454. Vide 1 Phill. Ev. 37. sixth edit. Arraignment. (7 & 8 G. 4. c. 28.) WHEN an offender comes into court, or is brought in by process, sometimes of capias, and sometimes of habeas corpus, directed to the gaoler of another prison, the first thing that follows thereupon is his arraignment. 2 Hale, 216. Now arraignment is nothing else but calling the offender to the What. bar of the court, to answer the matter charged upon him. 2 Hale, 216. By 7 & 8 G. 4. c. 28. § 1. if any person not having privilege of «Not guilty." peerage, being arraigned upon any indictment for treason, felony or piracy, shall plead thereto a plea of "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial; and the court shall in the usual manner, order a jury for the trial of such person accordingly. § 2. If any person being arraigned upon or charged with any Prisoner refusindictment or information, for treason, felony, piracy, or misdea- ing to plead, meanor, shall stand mute of malice or will not answer directly to Court may enter the indictment or information, in every such case it shall be lawful "not guilty." for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same. The prisoner, on his arraignment, though under an indictment of the highest crime, must be brought to the bar without irons and all manner of shackles and bonds, unless there be a danger of escape, and then he may be brought with irons. 2 Hale, 219. 4 Bia. Com. 323. 2 Haw. c. 28. § 1. But note, at this day they usually come with their shackles upon their legs, for fear of an escape, but stand at the bar unbound, till they receive judgment. 2 Hale, 219. In Layer's case, a difference was taken between the time of arraignment and the time of trial, and accordingly the prisoner was obliged to stand in irons at the bar during his arraignment; but when brought to trial, upon counsel desiring that his irons might be taken off, Ld. C. J. Pratt said, "The irons must be taken off; we will not stir till the irons are taken off." Layer's case, K. B. 9 G. 1. 16 Howel's St. Tri. 94. 99. 129. See all the authorities upon this subject collected in a note to the trials of the regicides. 5 Howel's St. Tri. 979. In R. v. Waite (for embezzlement), the prisoner at the time of arraignment, desired that his irons might be taken off; but the court informed him, that they had no authority for that purpose until the jury were charged to try him. He accordingly pleaded Question of irons being taken off. Privilege of parliament. Bodies cor porate. Persons charged in execution. Not Guilty; and being put upon his trial, the Court (a) immeWaite's case, O. B. diately ordered his fetters to be knocked off. Feb. Sess. 1743. 1 Leach, 28. 36. 2 East's P. C. 570. S. C. Also, there is no necessity that a prisoner, at the time of his arraignment, hold up his hand at the bar, or be commanded so to do; for this is only a ceremony for making known the person of the offender to the court; and if he answer that he is the same person, it is all one. 2 Haw. c. 28. § 2. R. v. Radcliffe, 1 Blac. 4 Bla. Com. 323. For other matters relating to this subject, see title Sessions. Arrest. THIS title is to be understood of arrests in criminal cases only, and not in civil cases. In law, an arrest doth signify the restraint of a man's person, depriving him of his own will and liberty, and binding him to become obedient to the will of the law; and it may be called the beginning of imprisonment. Lamb. 95. II. For what Causes of Suspicion an Arrest may be. [34 Ed. 3. c. 1.] III. By whom an Arrest shall be made. [5 G. 4. c. 18. c. 83.—7 & 8 G. 4. c. 29. c. 30.] IV. The Manner of an Arrest. [29 C. 2. c. 7.-24 G. 2. c. 55. — 27 G. 2. c. 20. — 7 G. 4. c. 64.] V. What is to be done after the Arrest. [23 H.6. c. 9.-24 G. 2. c. 44.] I. Who may or may not be arrested. Generally, a member of parliament shall have the privilege of parliament for himself and his servants to be freed from arrests; but for treason, felony, and breach of the peace, there can be no privilege. 4 Inst. 24. 25. 1 Black. Com. 145. Bodies corporate, acting in a way that would render an individual liable to arrest, cease to retain, of course, their corporate character, and become individually responsible. In the case of R. v. Woodham, 2 Str. 828. upon a motion for an information against the defendant, who was a justice of the peace, it was holden that a person in execution in the K. B. may be there charged criminally by a justice of the peace's warrant; (a) Carter J. & Dennison J. but that no such justice can take a prisoner of this court out of the custody of the court, and send him to the county gaol. Also by stat. 29 C. 2. c. 7. § 6. a warrant executed against any 29 C. 2. c. 7. person whatsoever on the Lord's day, is void; and the persons On Sundays. serving the same shall answer damages, as if they had done the same without warrant; except in cases of treason, felony, or breach of the peace. II. For what Causes of Suspicion an Arrest may be. By the statute of 34 Ed. 3. c. 1. power is given to the justices Suspicion. of the peace, to arrest all those whom they find by indictment, or by suspicion, and to put them in prison. The causes of suspicion, which are generally agreed to jus- Causes of sustify the arrest of an innocent person for felony, are these that picion. follow: (1) The common fame of the country: but it seems, that it Common fame. ought to appear upon evidence, in an action brought for such arrest, that such fame had some probable ground. 2 Haw. c. 12. § 9. (2) Being found in such circumstances as induce a strong Circumstances presumption of guilt; as coming out of a house wherein murder of guilt. has been committed, with a bloody knife in one's hand; or being found in possession of any part of goods stolen, without being able to give a probable account of coming honestly by them. Ib. § 12. (3) The behaving one's self in such a manner as betrays a Flight. consciousness of guilt; as where a man accused of felony, on hearing that a warrant is taken out against him, doth abscond. 16. § 13. But the party who flies from an arrest for a capital offence, is not thereby guilty of a capital offence, but only liable to forfeit his goods, when such flight is found against him by the coroner's inquest. 2 Haw. c. 17. § 13. (4) The being found in company with one known to be an of- Evil company. fender, at the time of the offence, or generally at other times. keeping company with persons of scandalous reputation. 2 Haw. c. 12. § 11. 2 Inst. 52. (5) The living an idle, vagrant, and disorderly life, without Living idle. having any visible means to support it. 2 Haw. c. 12. § 10. A woman walking up and down the streets to pick up men, a night-walker, may be apprehended. Per Lawrence J., Lawrence v. Hedger, 3 Taunt. 15. post, p. 39. See stat. 5 G. 4. c. 83. § 3. & 6. post, tit. Magrant. Hue and cry. (6) The being pursued by hue and cry. 2 Haw. c. 12. § 14. For if a felony is done, and one is pursued upon hue and cry, that is not of ill fame, suspicious, unknown, nor indicted, he may be attached and imprisoned by the law of the land. 2 Inst. 52. (7) But generally, no such cause of suspicion as any of the above Where no crime mentioned will justify an arrest by a private person, where in truth no such crime hath been committed; unless it be in the case of hue and cry. 2 Haw. c. 12. § 16. is committed. Difference be tween arrest by a peace officer and by a private person. (8) In the case of Samuel v. Payne and others, Doug. 359. it was determined that a peace officer may justify an arrest on a reasonable charge of felony, without a warrant, although it should afterwards appear that no felony had been committed: but that a private individual in such a case cannot. Private persons It is lawful for a private person to do any thing to prevent may prevent the the perpetration of a felony. Therefore, in a case where the decommission of a fendants broke and entered the plaintiff's house to prevent him felony. from murdering his wife, the court of C. P. held that they were justified. Per Chambre J., Handcock v. Baker and others, 2 Bos. & Pull. 260. A constable may justify an arrest on probable ground that a felony has been com mitted, although no positive charge be made. A constable is not a judicial officer. Ledwith v. Catchpole, E. 23 G. 3. Cald. 291. This was an action of trespass and false imprisonment tried before Lord Mansfield at Guildhall. The defendant was one of the marshalmen of the lord mayor of London. The jury found a verdict for the plaintiff with 201. damages. Upon motion for a new trial, Lord Mansfield reported the evidence to have been: That one Smith, who had lost some linens to a large amount, brought one Stevens to the defendant, who said, that one Maddox had called a coach, and put Smith's bale of goods into it at a public house; that the plaintiff put his head into the coach; that afterwards the coach stopped at another house, and that the plaintiff met it there; that Smith, suspecting the plaintiff to have been concerned in the theft, from the circumstance of his having been twice so seen at the coach, took the defendant on a Sunday to the plaintiff for the purpose of having him apprehended; that when they came to him, neither Smith nor any other person charged the plaintiff with a felony; that Smith said, "I have lost some cloth; but I don't say that it was he who stole it; I know nothing of that, but stolen it was." The defendant, being asked by the plaintiff what authority he had to arrest him, produced a hanger, and said, "That was his authority" That he then did arrest the plaintiff, and took him to the Poultry Compter; from whence he was taken the next day before the sitting alderman, and discharged. - Buller J. I think, if we were to say that a constable is justifiable in this case, we should go the length of saying that he is to some purposes a judicial officer, which is going further than has ever yet been adjudged. It would be to allow a constable to examine witnesses, act upon their testimony, though he cannot administer an oath, and judicially to conclude whether there is or is not a reasonable ground of suspicion, and this might be attended with danger. Where a positive charge is made, the party making it is obliged to follow it up with a prosecution, or is himself liable to an action. In such case the constable is merely ministerial, and bound to take the party up, and carry him before a magistrate. The magistrate must then examine into the matter upon oath, which the constable cannot do. Willes J. A felony is committed. The prisoner looked into the coach where the stolen goods were deposited at the time, and afterwards met the coach where it stopt. Then, called upon as the constable was to act, and under such strong circumstances of suspicion, I think it became his duty to act, and that there ought to be a new trial. — Lord Mansfield. The question is, Whether a felony has been committed or not. And then the fundamental distinction is, that if a felony has actually been committed, a private person may, as |