mitted on or near the boundaries of counties, the venue may be laid in either of the counties. There is also a common statutory provision to the effect that where a crime is committed partly in one county and partly in another, the offender may be tried and punished in either. Other statutes provide that where a crime is committed in a moving vehicle, such as a railway car, automobile, or vessel, and there is doubt as to the county in which it occurred, the venue may be laid in any county through which the offender passes in the vehicle. § 865. Change of venue.-A change of venue is the removal by order of court of a cause from one county to an adjoining county for trial. In most states the grounds for such a change are fixed by statute, and are usually, either such prejudice against the defendant in the community that he can not have a fair trial,35 or prejudice or unfitness of the judge.36 In some states proof must be given of the facts alleged in the motion for change of venue,37 in others affidavits are sufficient.88 In some states the court must grant a change of venue upon proper application;39 in others the granting of the application is within judicial discretion.40 In most jurisdictions the change can be made only upon motion of the de 35 Smith v. State, 145 Ind. 176, 42 N. E. 1019; State v. Furbeck, 29 Kans. 532. 36 State v. King, 20 Fla. 19; State v. Gates, 20 Mo. 400; State v. Wills (Fla.), 78 So. 693; People v. St. Louis Merchants' Bridge Co., 282 Ill. 408, 118 N. E. 733; City of Leavenworth v. Green River Asphalt Co., 101 Kan. 82, 165 Pac. 824 (judge disqualified because he had been counsel in the case); Callaghan v. Callaghan, 30 Idaho 431, 165 Pac. 1122. 37 Howard v. State, 165 Ala. 18, 50 So. 954; Emporia v. Volmer, 12 Kans. 622. 38 Mershon v. State, 44 Ind. 598. See also, People v. May, 276 Ill. 332, 114 N. E. 685; People v. Samuel, 199 Ill. App. 294; Huffman v. State (Ind. App.), 117 N. E. 874. 39 Rafferty v. People, 66 Ill. 118; Johnson v. Commonwealth, 82 Ky. 116. 40 Hubbard v. State, 7 Ind. 160; State v. Turlington, 102 Mo. 642, 15 S. W. 141; Gallaher v. State, 40 Tex. Cr. 296, 50 S. W. 388. fendant;41 in some the prosecution may take a change.42 The motion for change of venue must be made before the jury is § 866. Steps in trial-The various steps in the apprehension of an offender and trial of his case will be discussed here largely in the order of their natural sequence, beginning with the arrest, and preliminary examination, and followed by a discussion of the grand jury and the indictment or presentment, the defendant's pleadings, the conduct of the trial, sentence and execution of the sentence and appeal or review of the trial proceedings. 41 Ex parte Rivers, 40 Ala. 712; In re Nelson, 19 S. Dak. 214, 102 N. W. 885. 42 Smith v. Commonwealth, 108 Ky. 53, 55 S. W. 718; People v. 43 Hunnel v. State, 86 Ind. 431; State v. Kent, 5 N. Dak. 516, 67 N. W. 1052, 35 L. R. A. 518. § 870. Arrest.-An arrest is the act of taking a person into custody under lawful authority. It may be made by virtue of a warrant, or in some cases without a warrant. Some physical act is necessary to constitute arrest. Spoken words are not enough; but a mere touching of the finger upon the person of the accused, or the act of locking a room in which he is, is sufficient. The purpose to arrest must be made known.3 § 871. Resisting arrest-Liabilities.-To resist an attempted legal arrest is a criminal act. If the offender kills the one who seeks to arrest him lawfully, it is murder.5 An 1 Hogan v. Strophlet, 179 Ill. 150, 53 N. E. 604, 44 L. R. A. 809; Bish. New Crim. Prac., § 156. 2 Hill v. Taylor, 50 Mich. 549, 15 N. W. 899; Genner v. Sparks, 6 Mod. 173, 1 Salk. 79. 3 Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645. 4 People v. Haley, 48 Mich. 495, 12 N. W. 671; Gross v. State (Ind.), 117 N. E. 562. 5 Mockabee 78 Ky. 380. V. Commonwealth, unlawful escape from a legal arrest is at least a misdemeanor. A third person who assists to resist arrest to escape therefrom, commits a criminal act." But if an attempted arrest is illegal, it may be resisted by any necessary force short of taking life or inflicting serious bodily harm ; and if life is taken in resisting illegal arrest, the homicide is not deemed murder, but manslaughter.9 If an arrest is authorized and is not made in an improper manner, there is no liability on the part of the one making it;10 but one attempting or making an unlawful arrest is guilty of assault and battery or false imprisonment and is liable both civilly and criminally. One illegally arrested or illegally held in custody may obtain release by a writ of habeas corpus. 12 An officer may be liable in damages for the use of unnecessary force in making an arrest,13 but this does not entitle the prisoner to release from custody. § 872. Warrant.-A warrant is a written command issued in the name of the state by a magistrate having authority addressed to some competent officer or person, to take a particular individual and dispose of him for a specified crime 6 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113; Commonwealth v. Filburn, 119 Mass. 297. 7 Clark's Crim. Law, 325. 8 Creighton V. Commonwealth, 83 Ky. 142, 4 Am. St. 143. 9 People v. Burt, 51 Mich. 199, 16 N. W. 378. 10 State v. Pugh, 101 N. Car. 737, 7 S. E. 757, 9 Am. St. 44. 11 Burns v. State, 80 Ga. 544, 7 S. E. 88. 12 In re Keeler, Fed. Cas. No. 7637, 1 Hempst. (U. S.) 306; In re Moyer, 35 Colo. 159, 85 Pac. 190, 117 Am. St. 189; Randall v. Bridge, 2 Mass. 549; Commonwealth V. Brickett, 8 Pick. (Mass.) 138; Commonwealth v. Lecky, 1 Watts (Pa.) 66, 26 Am. Dec. 37; Lacey v. Palmer, 93 Va. 159, 24 S. E. 930, 31 L. R. A. 822, 57 Am. St. 795. 13 Rhodes v. King, 52 Ala. 272; State v. Phillips, 119 Iowa 652, 94 N. W. 229, 67 L. R. A. 292; Petrie v. Cartwright, 114 Ky. 103, 70 S. W. 297, 59 L. R. A. 720, 102 Am. St. 274; People v. McCord, 76 Mich. 200, 42 N. W. 1106; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. 266; Jackson v. State, 66 Miss. 89, 5 So. 690, 14 Am. St. 542; State v. Hancock, 73 Mo. App. 19. according to law.14 In order to render a warrant legal it must conform to certain formalities. It must issue from a magistrate having jurisdiction of the subject matter, or at least with power to hold the accused to the grand jury.15 In some jurisdictions it must be under seal.16 It must show when it was issued.17 It must be directed to a person authorized to make arrests and command him to bring the accused before the magistrate who issued it or some other magistrate, who has jurisdiction.18 It must give the correct name of the accused if known; if not, he must be so described as to identify him. Description as unknown, or by a fictitious name, is insufficient. 19 If a blank is left for the name, the officer to whom it is addressed has no power to fill it in, and the warrant is void.20 A warrant may be issued at any time of day or night or on Sunday.21 It must show on its face that there is authority to issue it and that it is issued on a proper complaint.22 Clerical errors or defects in form are immaterial.23 But material alterations by anyone save the issuing magistrate make it void.24 It must state the offense, and such an offense that an arrest may be made.25 After service a warrant should be returned by the officer.26 force until returned.27 14 1 Bish. New Crim. Prac., 187; 4 B1. Com. 290-292. 15 State v. Shelton, 79 N. Car. 605; Pierce v. State, 17 Tex. App. 232. 16 Beekman v. Traver, 20 Wend. (N. Y.) 67; 4 Bl. Comm. 290. 17 Donahoe V. Shed, 8 Metc. (Mass.) 326. 18 Bookhout v. State, 66 Wis. 415, 28 N. W. 179. 19 People v. Gosch, 82 Mich. 22, 46 N. W. 101; Scott v. Ely, 4 Wend. (N. Y.) 555. 20 Rafferty v. People, 69 Ill. 111, 18 Am. Rep. 601. A warrant is in 21 Pearce v. Atwood, 13 Mass. 327. 22 Gold v. Bissell, 1 Wend. (N. Y.) 210, 19 Am. Dec. 480. 23 Commonwealth v. Martin, 98 Mass. 4. 24 Haskins v. Young, 19 N. Car. 527, 31 Am. Dec. 426. 25 People v. Belcher, 58 Mich. 325, 25 N. W. 303. 26 Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741, 1 L. R. A. 374. 27 Cooper v. Adams, 2 Blackf. (Ind.) 294. |