try rise and pursue the robbers, who turn and make resistance, and n the struggle one of the robbers is killed, this, on the part of the pursuers, is justifiable homicide; but if one of the pursuers be killed by the robbers, it is murder.(a) In arresting upon suspicion, however, a private person had need to be cautious, unless it be upon hue and cry. Upon hue and cry raised or levied against a man by name, no doubt, a private person may arrest the alleged offender, (b) although no other circumstance of suspicion attach to him; (c) and the killing of the private person would in that case be murder.(d) But otherwise, a private person, arresting a man on suspicion of having committed a felony, however well grounded the suspicion may be, will not be protected, if in fact no felony was committed ; (e) or if a felony were committed, but not by the party arrested or attempted to be arrested, the death of either, the party arresting or arrested, would be manslaughter.(g) So that a pri

(a) Fost. 310; 1 Hale, 464.

(b) 2 Hawk. c. 12, s. 4.

(c) 2 Inst. 52.

(e) Fost. 318; and see Beckwith v. Philby 6 B. & C. 635; and ante, p. 25. (9) Fost. 318.

(d) Fost. 318.

aiding and assisting, and principals, as well as those that issued out and actually committed the assault; for it was but within five rods of the house, and in view thereof, and all done as it were in the same instant. Vide Lord Dacre's case, 1 Hale, 439.

4. That there was sufficient notice that it was the constable, before the man was killed. 1. Because he was the constable of the same vill. 2. Because he notified his business at the door before the assault, viz., that he came with the justice's warrant. 3. Because, after his retreat, and before the man was slain, the constable commanded the peace; and, notwithstanding, the rioters fell on and killed the party.

5. It was resolved, that the killing of the assistant of the constable was murder, as well as the killing of the constable himself.

6. That those who came in to the assistance of the constable, though not specially called thereunto, are under the same protection as they that are called to his assistance by name. 7. That although the constable retired with his company upon the not delivering up of A., yet the killing of the assistant of the constable in that retreat was murder. 1. Because the retreat was one continued act in pursuance of his office; being necessary when he could not attain the object of his warrant, and being in effect a continuation of the execution of his office, and under the same protection of the law as his coming was. 2. Principally because the constable, in the beginning of the assault, and before the man was stricken, commanded the peace.

8. It seems that even if the constable had not commanded the peace, yet as he and his company came about what the law allowed them, and when they could not effect it fairly, were going their way, the rioters pursuing them and killing one made the offence murder in them all; for the act was done without provocation, and the constable and his company were peaceably retiring; but this point was not relied upon, because there was enough upon the former point to convict the offenders. In the conclusion, the jury found nine of them guilty and acquitted those within; not because they were absent, but because there was no clear evidence that they consented to the assault as the jury thought; and therefore judgment was given against the nine te be hanged. Sissinghurst-house case, 1 Hale, 461–3.

vate person should be cautious not to interfere, where the law does not allow of his doing so.[2]

Distinction between authority of Officers and private Persons.

[2] These distinctions between officers and private persons proceed upon the principle of discouraging persons from proceeding to extremities upon their own private suspicion or authority. And upon this principle, it appears to have been considered, that a private person is not bound to arrest any one standing indicted for felony, against whom no warrant can be produced at the time; and, therefore, the law does not hold out the same indemnity to such person, as it does to constables and other peace officers, who are ex officio, not merely permitted, but enjoined by law, to arrest the parties, as well on probable suspicion of felony, as in case of felony actually committed; and who may therefore well arrest upon the finding of the fact by the grand inquest on oath, which is suspicion grounded on high authority. 2 Hale, 84, 85, 87, 91, 93, sed vide, 1 Hale, 489, 490. In this case, however, it might perhaps be well contended, that a person arresting another with the knowledge of the indictment having been found, cannot be properly considered as acting upon his own private suspicion or authority; and ought, therefore, to have the same protection as the officers of justice. And it seems agreed, that the indictment found is a good cause of arrest by private persons, if it may be made without the death of the felon : (Dalt. c. 170, s. 5,) but it is said, that, if he be killed, their justification must depend upon the fact of the party's guilt, which it will be incumbent on them to make out: otherwise, they will be guilty of manslaughter, 2 Hale, 83, 92.

Even in the case of a constable, it was formerly supposed to be necessary, that there should have been a felony committed in fact, which the constable must have ascertained at his peril; but it has since been determined, that a peace officer may justify an arrest on a charge of felony, on reasonable cause of suspicion, without a warrant; although it should afterwards appear that no felony had been committed. Samuel v. Payne, Dougl. 359. And where a private person suspecting another of felony, has laid his grounds of suspicion before a constable and required his assistance to take him, the constable may justify killing the party, if he fly, and cannot otherwise be taken, though in truth he were innocent. But in such case, where no hue and cry is levied, the party suspecting ought to be present, as the justification must be that the constable did aid him in taking the party suspected: and the constable ought to be informed of the grounds of suspicion, that he may judge of the reasonableness of it. 2 Hale, 79, 80, 91, 92, 93. "There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed; whereas a constable, having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities. Per Lord Tenterden, C. S. Beckwith v. Philby, 6 B. H. 638.

A well grounded belief that a known felony is about to be committed, will extenuate a homicide committed in prevention of the felony, but not a homicide committed in pursuit, by an individual of his own accord. State v. Rutherford, 1 Hawks Rep. 457. Henderson, J.-To extenuate a homicide committed in pursuit, there must be an actual felony committed; and it is said, that no evidence, however convincing, even the finding of the grand inquest on oath, will supply the want of an actual felony's being committed, where an individual of his own accord, commits a homicide in pursuit; because the pursuit by the individual in an officious act, it not being his duty to arrest, unless called on by an officer; and from the tenderness of the law towards the life of a citizen, with which, I presume, is intermixed some portion of policy, for it might be a mean of gratifying private revenge, it is to be observed, that some doubts are expressed by Mr. East, where the grand inquest has found that a felony has been committed; but no case is brought forward to support that doubt, and he concludes, that at least, it will be prima facie evidence that a felony was committed. But as I said before, a well grounded belief that a known felony was about to be committed, will extenuate a homicide committed in prevention of the supposed crime, and this upon a principle of ne

Where a man was suspected of stealing turnips, and the owner ordered his servant to watch him, who apprehended him shortly afterwards in an adjoining field with turnips in his possession; the servant took

cessity; but when that necessity ceases, and the supposed felon flies, and thereby abandons his supposed design, a killing in pursuit, however well grounded the belief may be that he had intended to commit a felony, will not extenuate the offence of the pursuer. This extenuation rest upon an actual felony committed, and a necessity for the killing to prevent the escape of the felon.

Whether or not a private person ought to enjoy the protection extended to peace officers, where he proceeds to arrest a person who stands indicted of felony, does not appear to be well settled. Lord Hale inclines to the opinion that the protection does not extend to a private person in such case, because a person innocent may be indicted, and because there is another way of bringing him to answer, viz. process of capias to the sheriff, who is a known responsible officer. 2 Hale, P. C. 84. The reasoning of Mr. East, however, is rather in favor of the protection. It may be urged, he observes, that if the fact of the indictment found against the party be known to those who endeavor to arrest him, in order to bring him to justice, it cannot be truly said, that they act upon their own private suspicion or authority, and therefore they ought to have equal protection with the ordinary ministers of the law. At any rate, it is a good cause of arrest by private person if it may be made without the death of the felon. Dalton, c. 170, s. 5. And if the fact of the prisoner's guilt be necessary for their complete justification, the bill of indictment found by the grand jury would (he conceives) for that purpose be prima facie evidence of the fact, till the contrary should be proved. 1 East, P. C. 300.

If an innocent person is arrested, upon suspicion, by a private individual, such individual is excused, if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony be committed by any one, and a private individual arrest without warrant, such arrest is illegal: an officer however would be justified, if he acted upon information from another which he had reason to rely on. Wakely v. Hart, 6 Binn. 316; Com. v. Deacon, 8 Serg. & Rawle, 49.

A private person cannot, of his own authority, arrest a person who has been engaged in an affray, or breach of the peace. Phillips v. Trull, 11 Johns. 486. But during the affray any person may, without a warrant from a magistrate, restrain any of the offenders in order to preserve the peace. Ib. Knot v. Gray, 1 Root, 66. A constable may, ex officio, and without warrant, arrest a breaker of the peace, and bring him before a justice. It seems, however, that this should be done, within a reasonable time after the affray. Taylor v. Strong, 3 Wend. 384. The city guard of Charleston, South Carolina, may arrest those guilty of affrays, or breaches of the peace, without warrant. City Council v. Payne, 2 Nott. & McCord, Rep. 475.

A citizen of one state from whom his slave absconds, into another state, may pursue and arrest him there without warrant, and use all the force necessary to carry him back. Such slave may be arrested on Sunday, in the night time, and in the house of another, if no breach of the peace be committed. And a magistrate cannot order the master to be arrested without oath, warrant, and probable course. Johnson v. Tompkins, 1 Baldwin, Rep. 571.

Mere suspicion that a felony has been committed, will not justify an assault and imprisonment; though a well grounded belief, founded on pregnant circumstances, that a felony has been committed, will. But violence can in no case be used unless the arrest is opposed by resistance. Findlay v. Pruitt, 9 Port. 195.

A peace officer may justify an arrest on a charge of felony, on reasonable grounds of suspicion, without a warrant, although it should turn out that the person arrested was innocent of the charge. Eaves v. The State, 6 Humph. Tenn. Rep. 53. The official proclamation of the governor, of the commission of a felony, published as the law directs, is sufficient evidence of the commission of it to justify an arrest of the supposed felon, by a peace officer. Ib.

him to the farmer's, and was taking him thence to a constable's, when he drew a knife and wounded the servant: being indicted for this, it was objected that the servant had no legal authority to arrest the prisoner, the stat. 7 & 8 G. 4, c. 29, s. 63, giving him that authority only in case the prisoner was found stealing the turnips;(a) consequently if death had ensued, the offence would have been manslaughter only, not murder: Vaughan B., was of that opinion, and also that the servant had no right to take the prisoner to the farmer's or constable's, but should have taken him directly before a magistrate; the prisoner was acquitted.(b) Where a private person is acting in aid of a constable, he is entitled to the same protection as a peace officer, eundo, morando et redeundo.(c)[3]

(a) See ante, p. 21.

(b) R. v. Curran, 3 Car. & P. 397.

(c) R. v. Phelps, 1 Russ. 534.

Apprehension of Persons under particular Statutes.

[1] In England, some late statutes (7 & 8 Geo. 4, c. 29, s. 63; 7 & 8 Geo. 4, c. 30, s. 28; 5 Geo, 4, c. 83, s. 6; 9 Geo. 4, c. 69, s. 2, &c.,) give authority not only to constables but also to private persons to apprehend persons found committing certain offences specified in such statutes; in these cases it is requisite that the authority to apprehend should be strictly pursued. Thus where upon an indictment for maliciously cutting a farmer's servant, it appeared that the farmer had directed the servant to apprehend the prisoner for stealing turnips, and the servant very soon after this found the prisoner in a field adjoining his master's turnip field, with a quantity of turnips in his possession, and took him into custody, and proceeded with him first to his master's house, and thence to the house of the constable; but on their way there the prisoner said he would go no further, and drew a knife and wounded the servant; it was contended that the servant had a right to apprehend the prisoner under the 7 & 8 Geo. 4, c. 29, s. 63; but it was held that by that section the owner of the property or his servants were only empowered to apprehend persons found committing offences against the act, and to take them forthwith before a justice of the peace. That in this case the prisoner was not found committing the offence, but was in the next field; which brought the case neither within the letter nor the spirit of the enactment.. Again, by this enactment, the owner or servant who apprehends must take the offender forthwith before a justice. Now the prisoner was actually taken to the master's and was about to be taken to the constable's, all which was clearly wrong. Rex v. Curran, 3 C. & P. 397, Vaughan, B.

So where on an indictment for the murder of a person, who was assisting a policeman to take a prisoner to the station-house, it appeared that the policeman apprehended the prisoner at night, and that he had concealed on his person new potatoes, fresh dug out of the ground, and with moist earth upon them, and which did not appear to have been dug out of the ground more than half an hour, and the policeman stated that he had been informed that gardens had been robbed, and that he apprehended the man on suspicion of stealing the potatoes out of a garden: but there was no evidence either to show that any garden had been robbed, or that the prisoner had been in or near any garden; it was objected that the policeman had no authority to apprehend the prisoner; for at common law stealing growing potatoes out of a garden was neither a felony nor misdemeanor, and therefore a policeman had no right at common law to apprehend for it; and under the 7 & 8 Geo. 4, c. 29, s. 63, an offender could only be apprehended if he were "found committing" the offence, and the preceding case was relied upon; it was held that the objection was valid, and consequently that the case was one of manslaughter only. Reg. v. Phelps, Gloucester Sum. Ass. 1841, Coltman, J., MSS. C. S. G.

[*239]

*Also in civil suits, the officer who executes the process of the courts, is entitled to the same protection, as an officer of jus

But the words "found committing" must not be taken so strictly as to defeat the reasonable operation of such clauses. The plaintiff, a pedlar, went to the house of Mr. B., and a small dog of Mr. B.'s ran out at the plaintiff, who with a stick gave the dog a blow, which knocked out one of its eyes. The plaintiff then went away, and Mrs. B. immediately sent a boy to fetch a constable, the boy returned with the constable, and Mrs. B. directed them to go after the plaintiff and apprehend him for the injury done to the dog. They went in pursuit of the plaintiff and found him at a public house about a mile from Mrs. B.'s, and the constable apprehended him and took him before a magistrate. Tindal, C. J., (in summing up,) the jury will have to consider, first, whether the plaintiff had committed a wilful injury to the dog; and secondly, whether he was found committing that offence and immediately apprehended: "with respect to the second question, the words of the 7 & 8 Geo. 4, certainly differ materially from those in the 1 Geo. 4, c. 56, and were obviously meant to restrict the powers given by that act. The object of the legislature seems to have been to allow the immediate apprehension of a party taken in the commission of a crime of this nature, because otherwise such offences would frequently be committed by persons passing through or having no fixed domicile in the place, and they would therefore entirely escape, if the party injured were obliged to wait for the formalities of a charge before a magistrate, or a warrant. Where the offender is fixed in the country, so that he can be found and apprehended at a subsequent time, there is no reason why that apprehension should not be after a regular proceeding; and the statute therefore differs from the 1 Geo. 4, c. 56, and does not allow a stale apprehension on an old charge, without a warrant. Still the words of the present statute must not be taken so strictly as to defeat its reasonable operation. Suppose a party seen in the act of committing the crime were to run away, and immediate and fresh pursuit to be made; I think that would be sufficient. So, in this case, the party is actually seen in the commission of the act complained of: as soon as possible an officer is sent for, and he is taken as soon as possible. No greater diligence could be required; and that being the case, I think it must be treated as an 'immediate apprehension' for an offence which the plaintiff, supposing under the circumstances that it was an offence at all, was 'found committing.” Hanway v. Boultbee, 1 Moo. & Rob. 14.

Where a policeman found the prisoner in a garden at night, stooping down close to the ground, and the prisoner jumped up and ran away, and the policeman ran after him and caught him; and it appeared that the prisoner was cutting or plucking some picketees and carnations in the garden, and the jury found that the prisoner had wilfully and maliciously plucked and cut flowers from plants or roots in the garden with intent to steal them, and that he was found by the policeman committing that offence, but that the policeman did not inform the prisoner by word of mouth that he belonged to the police force; it was held, on a case reserved, that the policeman had authority to apprehend the prisoner. See Rex v. Fraser, R. & M. C. C. R. 419.

A person may be apprehended without a warrant under the 5 Geo. 4, c. 83, s. 6, as a person found in a dwelling house, &c., with intent to commit a felony, if he is seen in a dwelling house, &c., but gets out of it and is taken on fresh pursuit, and it makes no difference that he was not seen getting out of the house, and was found concealing himself to prevent being appaehended upon other premises near. To make such an arrest legal, it is not necessary that the person should have, at the time he is apprehended, a continuing purpose to commit the felony; he may be apprehended though that purpose is wholly ended.

Upon an indictment for maliciously wounding, it appeared that near midnight two men were seen near a board-house belonging to Oxley; on two persons going up to the boardhouse, they heard a noise there, and they found the door of the board-house half open, and saw the prisoner inside the board-house, and heard a noise among the boards, and the priso ner said, "bring the board:" the two persons then went to Oxley's house to call him up; one of them then went to the bottom of the road, which was about one hundred yards from