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Since the preliminary confinement is ordered only to insure the attendance of the accused at the trial, the confinement can only be continued as long as there is any reasonable danger of his default. Where, therefore, the punishment upon conviction will not exceed a fine or imprisonment of short duration, it became customary at an early day to release him upon giving a bond for his appearance, signed by sureties, in the sum which he will have to pay upon conviction, or in such a sum as would probably be sufficient to outweigh the impulse to flee from the threatened imprisonment. This was called giving bail.

At common law, bail could not be demanded as a matter of right, except in cases of misdemeanor, and felonies were not bailable as a rule. But the severity of the common law in this regard has been greatly moderated, until at the present day, as a general rule, all offenses are bailable as a matter of course, except in cases of homicide and other capital cases. In all capital cases, it is usually provided that bail should be refused, where the evidence of guilt is strong or the presumption great, and in all such cases it is left to the discretion of the judge to whom application is made, whether bail should be granted or refused. 1

When a person is bailed, he is released from the custody of the State authorities, but he is not remanded completely to his liberty. The one who has furnished the security, and is therefore responsible for his default, has in theory the custody of the accused in the place of the State, and he has in fact so much of a control over the accused, that he may re-arrest the latter, whenever he wishes to terminate his responsibility, and deliver the principal to the officers of the law. But the imprisonment by the bail can only be temporary and for the purpose of

1 United States v. Hamilton, 3 Dall. 17; State v. Rockafellow, 6 N. J. 332; Com. o. Semmes, 11 Leigh, 665; State o Summons, 19 Ohio, 139; Allery v. Com., 8 B. Mon. 3; Moore v. State, 36 Miss. 137; Foley v. People, 1 IU. 31; Shore v. State, 6 Mo. 640; People v. Smith, 1 Cal. 9.

returning him to the custody of the law, and must be done with as little violence as possible. This can be done at any time before the forfeiture of the bond for non-appearance has been judicially declared; it may be done by the bail or by his duly constituted agent, and the arrest can be made wherever the accused can be found, even though it is without the State. 1

The constitutions of most of the States, as well as the constitution of the United States, provide that excessive bail shall not be required. What constitutes excessive bail, must from the necessities of the case be left with the discretion of the judge or magistrate, to whom application for release on bail is made. Any misjudgment in such a case, or a willful requirement of excessive bail, could not be remedied, except by application to some other court or judge possessing jurisdiction over the case. be called reasonable, which will be sufficient to secure the attendance of the accused at the trial by outweighing or overcoming the inducement to avoid punishment by a default; and the court or judge, in determining the amount of the bail, must take into consideration all the circumstances which will increase or diminish the probability of a default, the nature of the offense, and of the punishment, the strength or weakness of the evidence, the wealth or impecuniosity of the accused, etc.

That bail may

SECTION 33. What constitutes a lawful arrest.

33a. Arrests without a warrant.

§ 33. What constitutes a lawful arrest. As a general proposition, no one can make a lawful arrest for a crime, except an officer who has a warrant issued by a court or magistrate having the competent authority. If the process is fair on its face, that is, nothing appears upon its face to lead the officer to an inquiry into the jurisdiction of the court, then the officer who makes the arrest has acted lawfully, notwithstanding the court or magistrate which issued the process had no jurisdiction over the case."

1 See Commonwealth o. Brickett, 8 Pick. 138; Parker 0. Bidwell, 3 Conn. 84; Reed 0. Case, 4 Conn. 166 (10 Am. Dec. 110); Niccolls o. Ingersoll, 7 Johns. 145; Harp v. Osgood, 2 Hill, 216.

A distinction is made by the cases between courts of general and of inferior jurisdiction, in respect to what process is fair on its face. If the process issued from a court of general jurisdiction, the officer is allowed to indulge in the presumption that the case came within the jurisdiction of the court, and need make no inquiry into the details of the case, nor need the warrant contain recitals to show that the court had jurisdiction. But if the process issued from a magistrate or court of inferior and limited jurisdiction, the warrant must contain sufficient recitals to satisfy the officer that the case was within the jurisdiction of the court, in order to be fair on its face. This distinction is very generally recognized and applied.?

* Cooley on Torts, 172, 173, 460. See State v. McNally, 34 Me. 210; State v. Weed, 21 N. H. 262; Underwood v. Robinson, 106 Mass. 296; Neth v. Crofut, 30 Conn. 580; Warner v. Shed, 10 Johns. 138; Brainard v. Head, 15 La. Arn. 489. See, also, generally, as to what process is fair on its face, Erskine v. Hohnbach, 14 Wall. 613; Watson v. Watson, 9 Conn. 140; Tremont v. Clarke, 33 Me. 482; Colman v. Anderson, 10 Mass. 105; Howard v. Proctor, 7 Gray, 128; Williamston v. Willis, 15 Gray, 427; Rice v. Wadsworth, 27 N. H. 104; Sheldon v. Van Buskirk, 2 N. Y. 473; Alexander v. Hoyt, 7 Wend. 89; Webber v. Gay, 24 Wend. 485; Chegaray v. Jenkins, 5 N Y. 376; Moore v. Alleghany City, 18 Pa. St. 55; Billings v. Russell, 23 Pa. St. 189; Cunningham v. Mitchell, 67 Pa. St. 78; State v. Jervey, 4 Strob. 304; State v. Lutz, 65 N. C. 503; Gore v. Martin, 66 N. C. 371; Bird v. Perkins, 33 Mich. 28; Loomis v. Spencer, 1 Ohio St, 153; Noland v. Busby, 28 Ind. 154; Lott v. Hubbard, 44 Ala. 593; Brother v. Cannon, 2 Ill. 200; Shaw v. Dennis, 10 Ill. 405; McLean

Cook, 23 Wis. 364; Orr v. Box, 22 Minn. 485; Turner v. Franklin, 29 Mo. 285; State v. Duelle, 48 Mo. 282; Walden o. Dudley, 49 Mo. 419. The officer can not receive the warrant signed in blank by the judge or magistrate, and all up the blanks himself. Such a warrant would be void. Pierce v. Hubbard, 10 Johns. 405; People v. Smith, 20 Johns. 63; Rafferty v. People, 69 Ill. 111; 8. c. 72 Ill. 37 (18 Am. Rep. 601).

* Cooley on Torts, pp. 173, 464.


The officer is bound to know whether under the law the warrant is defective, and not fair on its face, and he is liable as a trespasser, if it does not appear on its face to be a lawful warrant. His ignorance is no excuse. It has been held in several of the States ? that where an officer has knowl

: edge of the illegality of the warrant, although it is fair on its face, he can not with safety act under it, the protection of process fair on its face being granted to those who ignorantly rely upon its apparent validity. But the better opinion is that the officer is not required in any case to pass judgment upon the validity of a warrant that is fair on its face, and his knowledge of extra-judicial facts will not deprive him of the right to rely upon its apparent validity.3

§ 33a. Arrests without a warrant.- Although it is the general rule of law that there can be no arrest without a warrant of the nature just described, yet there are cases in which the requirement of a warrant would so obstruct the effectual enforcement of the laws, that the ends of justice would be defeated. For public reasons, therefore, in a few cases, the personal security of the citizen is subjected to the further liability of being arrested by a police officer or private individual without a warrant. But the right thus to arrest without a warrant must be confined to the cases of strict public necessity. The cases are few in number, and may be stated as follows:

Grumon v. Raymond, 1 Conn. 39; Lewis v. Avery, 8 Vt. 287;. Clayton 1. Scott, 45 Vt. 386. But where the matter of jurisdiction is a question of fact and not a question of law, upon which the court issuing the warrant has pronounced judgment, the officer is protected by the warrant, and is not responsible for any error of the court. Clarke v. May, 2 Gray, 410; Mather v. Hood, 8 Johns. 447; Sheldon v. Wright, 5 N. Y. 497 ; State o. Scott, 1 Bailey, 294; Wall v. Trumbull, 16 Mich. 228.

2 Barnes o. Barber, 6 Ill. 401 ; Gayer v. Andrews, 11 lll. 494; Leachman o. Dougherty, 81 Il. 324; Sprague v. Birchard, 1 Wis. 457, 464; Grace Mitchell, 31 Wis. 533, 539.

3 Wilmarth 0. Burt, 7 Met. 257; Twitchell 0. Shaw, 10 Cush. 46; Grumon v. Raymond, 1 Conn. 40; Watson v. Watson, 9 Conn. 140, 146; Webber v. Gay, 24 Wend. 485; Cunningham 0. Mitchell, 67 Pa. St. 78; Wall v. Trumbull, 16 Mich. 228; Bird v. Perkins, 33 Mich. 28; Brainard v. Head, 15 La. Ann. 489; Richards v. Nye, 5 Ore.382. But he may, if he chooses, refuse to serve such a warrant, and waive the protection which he may claim from its being fair on its face. Horton v. Hendershot, 1 Hill, 118; Cornell v. Barnes, 7 Hill, 35; Dunlap o. Hunting, 2 Denio, 643; Earl v. Camp, 16 Wend. 562. See Davis v. Wilson, 61 Ill. 527; Hill r. Wait, 5 Vt. 124.

1. When a felony is being committed, an arrest may be made without warrant to prevent any further violation of the law.1

2. When the felony has been committed, and the officer or private individual is justified, by the facts within his knowledge, in believing that the person arrested has committed the crime.?

3. All breaches of the peace, in assaults and batteries, affrays, riots, etc., for the purpose of restoring order imdiately.

4. The arrest of all disorderly and other persons who may be violating the ordinary police regulations for the preservation of public order and health, such as vagrants,

1 Ruloff v. People, 45 N. Y. 213; Keenan v. State, 8 Wis. 132. But see Somerville v. Richards, 37 Mich. 299.

? But the belief must be a reasonable one. If the facts within his knowledge do not warrant his belief in the guilt of the innocent person whom he has arrested, he will be liable in an action for false imprisonment. State 0. Holmes, 48 N. H. 377; Holly v. Mix, 3 Wend. 350; Reuck o. McGregor, 32 N. J. 70; Commonwealth v. Deacon, 8 Serg. & R. 47; State v. Roane, 2 Dev. 58; Long v. State, 12 Ga. 233; Eames o. State, 6 Humph. 53. Less particularity, in respect to the reasonableness of the suspicions against an individual, is required of an officer who makes an arrestiwithout warrant, than of a private person. The sus. picions must be altogether groundless, in order to make the officer liable for the wrongful arrest. See Marsh o. Loader, 14 C. B. (N. s.) 535; Lawrence v. Hedger, 3 Taunt. 14; Rohan 0. Sawin, 5 Cush. 281; Holley V. Mix, 3 Wend. 350; Burns 0. Erben, 40 N. Y. 463; Drennan o. People, 10 Mich. 169.

8 Philips v. Trull, 11 Johns. 477; Respublica v. Montgomery; 1 Yeates, 419; City Council 0. Payne 2 Nott & McCord, 475; Vandeveer 0. Mattocks, 3 Ind. 479.

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