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thereon, authorizing a person to be named in such warrant to execute the same, and the person named in such order may execute such warrant anywhere in the state, by apprehending and conveying such offender before the judge or justice issuing such warrant, or before some other justice of the same county, and all sheriffs, coroners, and constables, and others, when required in their respective counties, to be aiding and assisting in the execution of such warrant." Gale's Stat., MO.
The name of the party to be apprehended, if known, must be correctly stated in the warrant before it is issued, and not left in blank to be filled up afterwards. 1 Chit. Crim. Law, 39.
If the process be defective in this particular, that is, if there be a mistake in the name of the person on whom it is to be executed, it is fatal to the process, and may be injurious to the officer. .Foster, 312. 1 East P. C, 310. 7 Cowen's Rep., 332.
But, if the name of the party to be arrested be unknown, the warrant may be issued against him by the best description the nature of the case will allow ; as "the body of a man whose name is unknown, but whose person is well known, and who is employed as the driver of a four horse team, and has lost one eye." 1 Hale, 577. 1 Chit. Crim. Law, 39.
By some of the authorities, it does not seem to be absolutely necessary to set out the charge or evidence in a warrant to apprehend, though it is necessary in the commitment; but that it is advisable, especially if the warrant be for the peace or good behavior, to set forth the special cause for which it is granted, in order that the party may come prepared before the justice with sufficent sureties; but that, if it be for treason, or felony, or other offence of an enormous nature, it is not necessary to state it, and that it seems rather discretionary than necessary to set it forth in any case. 1 Chit. Crim. Law, 41.
In Boucher's case, Cro.Jac., 81, it was held that a commitment under a warrant which did not specify the crime the party was charged with, was a false imprisonment, but that the offence need not be specified in a warrant to bring up the party for examination or trial. And the same doctrine seems to be held in the case of the King v. Wilkes, 2 Wales' Rep., 153.
It is laid down by Lord Hale, that, regularly, a warrant ought to contain the cause specially, and should not be general, to answer such matters as shall be objected against him, because it cannot appear whether it be within the jurisdiction of the justice, neither can it appear whether the party be bailable or otherwise. 2 Hale, 111. 1 Hale, 580. Though he admits it would be valid without it.
And Mr. Lambard, in his treatise, says, that every warrant made by a justice of the peace ought to comprehend the special matter upon which it proceedeth, even as all the king's writs do bear their proper cause in their mouth with them; and, as for the form that is commonly used, to answer to such things as shall be objected, and such like, they were not fetched out of the old learned precedents, but lately brought in by such as either knew not, or cared not, what they writ. 4 Burn's Justwe, 392. 4 Bl. Com., 290.
The reason assigned, by the English common law writers, why it is not necessary to set out the offence in the warrant, viz., " that cases may occur in which it would be imprudent to let even a peace officer know the crime of which the party to be arrested is accused," seems to be weak and unsatisfactory. It shows a want of confidence in those officers, who are bound by the strongest obligations to sustain and enforce the laws, or a consciousness that the proceedings, on the part of the government, are corrupt and tyrannical, and, if fully known, would be resisted' by and oppressed and indignant people.
In this state, the rights of the people are more certainly secured. By Sec. 9 of Art. VIII. of the constitution, it is declared " That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his favor."
In order to render this provision of the constitution effectual, and that the party may be fully apprised of the nature and cause of the accusation against him, it seems that the same should be substantially set forth in the warrant, and that it should not be left to the discretion of the justice to inform him of the charge or evidence, as interest, fear, or caprice may dictate.
The party accused is entitled to the full benefit of the constitutional provision in his favor, and to know the precise nature of the offence against which he is called to defend himself, previous to going into an investigation on the part of the people; so that he may obtain counsel and procure the attendance of such witnesses as may be material for his defence. But, whether it is necessary or not, by the constitution and laws of this state, that the warrant should contain the special cause and matter upon which it is granted, there is no necessity, nor even an apology, for issuing a causeless and uncertain precept, especially one which controls the personal liberty of an individual and requires him to defend himself against a criminal accusation.
The warrant may issue to bring the party before the justice who granted the warrant specially, and then the officer is bound to bring him before the same justice; but if the warrant be general, to bring him before any justice, then it is in the election of the officer to bring him before what justice of the county he may think fit, and not in the election of the prisoner. 1 Chit. Crirn. Law, 60. And it is even said that, where a warrant directs a person to be brought before a particular magistrate, he may be taken before another, especially if nearer. 1 Chit. Crim. Law, 60.
By the statute of this state, it is provided that it shall be lawful for any judge or justice to issue his warrant under his hand, commanding the officer or person charged with the execution thereof to arrest the person or persons charged with having committed any criminal offence, and bring him, her, or them before the officer issuing said warrant, or, in case of his absence, before any other judge or justice of the peace. Gale's Stat., 238.
The warrant of a justice need not be returnable at a time or place certain, and, as it is not returnable at a certain time, it continues in force until fully executed and obeyed, provided the justice be living. 1 Chit. Crim. Law, 39.
It is said, the warrant ought to set forth the year and day wherein it is made, that, in an action brought upon an arrest by virtue of it, it may appear to have been prior to such arrest; and, also, in case where a statute directeth the prosecution to be within such a time, that it may appear that the prosecution is commenced within such limited time. 2 Hawk., 85. But the place where the warrant is made, though it must be alleged in pleading, need not be expressed in the warrant; but it is said that it is necessary to state the county in the margin, at least, if it be not set forth in the body. 1 Chit. Crim. Law, 39.
It is generally laid down, that the warrant ought to be under the hand and seal of the justice who made it. 1 Chit. Crim. Law, 38. But it seems sufficent if it be in writing, and signed by him, unless a seal is expressly required by statute. 1 Chit. Crim. Law, 38. Bull. A*. P., 83. 19 Johns. Rep., 39.
By the 10th sec. of the act of Jan. 6,1827, it is enacted that "It shall not be necessary to the validity of any warrant for the apprehension of any person charged with an offence, or warrant of commitment, or search warrant, that it be under the seal of the judge or justice of the peace granting or issuing the same; but every such warrant under the hand of the judge or justice of the peace, shall be as valid in law as if a seal were affixed."
OF THE ARREST.
An arrest is the apprehending or restraining of one's person, in order to be forthcomming to answer an alledged or suspectted crime. To this arrest all persons whatsoever are, without distinction, equally liable in all criminal cases. 4 BL Com., 289.
If the constable, or other officer, upon receiving a warrant, shall come to the party and require or command him to go before the justice, &c., this is no arrest or imprisonment. Dall. Justice, 580. Bare words will not amount to an arrest without the party's being taken into actual custody. 1 Salk. Rep., 79.
To constitute an arrest, the party against whom the process is awarded, must either be actually touched by the officer, or confined in a room, or must submit himself, cither by words or actions, to be in custody. 1 Chit. Crim. Law, 48. If the party acquiesces and goes along with the officer, this will be considered as submitting himself to the process, and as complete an arrest as if the officer had touched the person of the defendant. 2 Selwyn's A". P., 1152. 2 Stark. Ev., 812.
And it has been held that it is enough for a sworn and known officer to say to a man being present, " I arrest you for felony, &c., in the king's name," though he touch him not. And if the party go away it is a rescue. 2 Hale, 116. Dalt. Justice, 580.
In general, an arrest may be made in four ways: 1. By warrant; 2. By an officer without a warrant; 3. By a private person, also without a warrant; 4. By an hue and cry.
1. By warrant.
The officer to whom the warrant is delivered should, as soon he conveniently can, proceed with secrecy to find out and actually arrest the party; and, if he refuse or neglect to execute the warrant, he will be punishable for his disobedience or neglect. 1 Chit. Crim. Law, 47.
By sec. 102 of the Crim. Code: "If any sheriff, coroner, keeper of a jail, constable, or other officer, shall wilfully refuse to receive or arrest any person charged with a criminal offence, then such sheriff, coroner, jailer, constable or other officer shall, on conviction, be fined not exceeding five hundred dollars, and imprisoned not exceedig six months in the common jail."
By the 7th sec. of the act of Jan. 6, 1827, it is provided that, "When a charge shall be exhibited upon oath before any judge, or justice of the peace, against any person for a criminal offence, it shall be the duty of the judge or justice of the peace before whom the charge shall be made, to issue his warrant for the apprehension of the offender, directed to all sheriffs, coroners, and constables, within the state; and it shall be the duty of any sheriff, coroner, or constable, into whose hands any such warrant shall come, to execute the same within their respective counties, and if the offender shall be found therein, to arrest and convey such offender before the judge or justice of the peace who issued the warrant, or before some other justice of the peace of the same county. When any such sheriff, coroner, or constable, or other person called to the assistance of such sheriff, coroner, or constable, shall be in pursuit of any offender, having a warrant for the apprehension of such offender, and the offender shall cross the line into the adjoining county, such sheriff, coroner, constable, or other person may pursue such offender into such adjoining county and make the arrest, as if such offender had been found in the county of the officer in pursuit.
"Sec. 8. Any judge or justice of the peace, issuing any such warrant, may make an order thereon, authorizing a person to be named in such warrant to execute the same, and the person named in such order may execute such warrant anywhere in the state, by apprehending and conveying such offender before the judge or justice issuing such warrant, or before some other justice of the same county, and all sheriffs, coroners, and constables, and others, when required in their respective counties, to be aiding and assisting in the execution of such warrant.
"Sec 9. Any person or persons, officer or officers, who may have the custody of any offender or offenders, by virtue of either of the two preceding sections, may take or carry such prisoner or prisoners into any other county which may be situated on his or their way back to the county from which the said prisoner or prisoners fled, and may deposit such prisoner or prisoners in any jail on his or their route, for safe custody, for one night or more, as occasion may require. Upon their arriving in the county to which the prisoner or prisonors is or are sent, under the last preceding section, such officer or officers, person or persons, shall deliver such prisoner or prisoners into the custody of the sheriff or jailer, together with the warrant of the said judge or justice, which shall be a sufficient justification to the said sheriff or jailer to receive and detain such prisoner or prisoners, until he, she, or they obtain bail, if the offence be bailable, or be otherwise discharged by due course of law."
It is said that, inasmuch as the office of a constable is wholly ministerial, and no way judicial, it seems that he may