§ 873. Arrest by warrant.-Known and sworn officers within their precincts need not show their warrants before arrest to the accused, 28 though he should state its substance if demanded; but private persons and officers out of their precincts, to whom warrants are specially directed, must show them before arrest if demanded except that when one resists arrest the officer need not show the warrant before making the arrest.29 Where arrest is made by warrant, the person executing it must be authorized to do so, or the arrest will be illegal.30

In the absence of statutory enactments, the warrant must be executed within the jurisdiction of the issuing magistrate.31 If directed to an officer by the description of his office, and not by his name, he may execute it only in his own precinct.32 However, in many states, statutes allow warrants to be executed anywhere in the state.33

§ 874. Liability of officer executing warrant.-An officer is liable for executing a warrant which is void on its face.34 But if a warrant is regular and valid on its face, and has been issued by a magistrate having jurisdiction of the subject matter, the officer is protected, although the warrant is voidable, or even void.35 An officer is not compelled to examine into the circumstances under which a warrant, regular and valid on its face, is issued, but is bound to execute such a warrant, so far as he has jurisdiction.36 An officer may justify acts done by him under a process that is void, unless it appears on its face to be void, as well as acts done under a

28 Commonwealth v. West (Ky.), 113 S. W. 76.

29 Commonwealth v. Field, 13 Mass. 321; Frost v. Thomas, 24 Wend. (N. Y.) 418.

Civ.

30 Wood v. Ross, 11 Mass. 271. 31 Little V. Rich (Tex. App.), 118 S. W. 1077; 4 B1. Comm. 291; 2 Hale P. C. 115.

32 Krug v. Ward, 77 Ill. 603. 331 Bish. New Crim. Proc., § 189. 34 Parker v. Walrod, 16 Wend. (N. Y.) 514, 30 Am. Dec. 124.

35 Nichols v. Thomas, 4 Mass. 232.

36 Stoddard v. Tarbell, 20 Vt. 321.

process that is voidable and has been avoided.37 But where the face of the warrant shows it was insufficient, the officer is not bound to execute it, and will be liable civilly and criminally for the consequences of an illegal arrest or attempted arrest, should he execute or attempt to execute the warrant.38 This rule applies where the warrant fails to charge the accused with the commission of a specific crime,39 or fails to name him or properly identify him,40 or lacks a seal where the law requires it,11 or, if it is patent that the issuing magistrate had no jurisdiction of the subject matter.42 But if the warrant is valid on its face, mere knowledge by the officer of facts making it void for lack of jurisdiction does not make him liable for its execution. Nor does the insufficiency of the complaint upon which the warrant is based, if it does not appear upon the face of the warrant, render the officer liable.4

43

41

§ 875. Arrest without warrant by private persons.-The rule of the common law is that any private person who witnesses the commission of a treason or a felony must arrest the offender though he has no warrant. Failure to do so is to commit the misdemeanor of misprision of treason or felony." It is also the rule that when a treason or felony has in fact been committed, and a private person on reasonable grounds suspects a particular person, he may arrest him and if he acts in good faith will incur neither civil or criminal liability if this suspicion is proven to be unfounded in fact.45 But to

47

excuse him from liability there must be proved not only reasonable cause for his suspicion, but also that a crime was actually committed.46 A private person may also arrest one engaged in riot, affrays, or the like. He also it seems has the right to retake one who has broken from prison or escaped from lawful custody.48 At common law a private person has not the right to arrest one for committing an ordinary misdemeanor, unless it amounts to a breach of the peace.19 Any private person must inform the one whom he attempts to arrest of his purpose.50

§ 876. Arrest without warrant by officer.-Any peace officer may arrest without a warrant not only when any private person may arrest but also under the following additional circumstances: First, by verbal direction of a judge or justice of the peace for a felony or breach of the peace committed in the presence of the judge or justice, or for any offense committed in the presence of the judge or justice in court.51 Without either warrant or verbal order he may arrest for a felony or breach of the peace committed in his own presence or view, provided that in the latter case he makes the arrest during the commission of the misdemeanor, cr immediately after.52 In many states statutes give him the right to arrest without warrant for any misdemeanor committed in his presence or view.53 He may also arrest without

46 Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702; Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645.

47 Timothy v. Simpson, 1 Cromp. M. & R. 757.

48 State v. Holmes, 48 N. H. 377. 49 Phillips v. Trull, 11 Johns. (N. Y.) 486.

50 State v. Bryant, 65 N. Car. 327; Tarwater v. State (Ala. App.), 75 So. 816 (officer too in some cases).

51 Lancaster v. Lane, 19 III. 242.

52 People v. Bartz, 53 Mich. 493, 19 N. W. 161; State v. Mancini, 91 Vt. 507, 101 Atl. 581; DeSilva v. New York Cent. Ry. Co., 169 N. Y. S. 924, 182 App. Div. 497; People v. Ostrosky, 160 N. Y. S. 493, 95 Misc. 104; Samino v. State (Tex. Cr.), 204 S. W. 233.

53 State v. Brown, 5 Har. (Del.) 505; People v. Wilson, 55 Mich. 506, 21 N. W. 905. See also, Hudley v. State (Tex. Cr.), 194 S. W. 160; Larson v. Feeney, 196 Mich. 1, 162 N. W. 275, L. R. A. 1917 D, 694.

warrant upon his own reasonable suspicion that a felony has been committed and that he is arresting the guilty person, and in such case he is not liable even though no felony has been committed,54 his liability in this respect differing from that of a private person. Or if a third person makes an accusation based on reasonable grounds that a felony has been committed, and that a certain person is guilty of its commission, he may arrest without warrant.55 He also may recapture a prisoner, who has escaped from lawful custody, either before or after conviction.56

§ 877. Assisting officer.-Any justice of the peace for just cause may raise what is known as a posse comitatus of the citizens of the county in any number he thinks proper, in order to pursue and arrest law breakers.57 A sheriff may raise a posse comitatus whether he is acting under a warrant or without a warrant.58 Any peace officer who is making an arrest may call upon a person present to aid in the arrest, or may even summon all bystanders.59 The command of a proper officer in a case in which he has apparent authority is a justification to one who in his presence comes to his assistance.60 A refusal to assist may be indictable;61 and one who obstructs an officer making an arrest, may himself be arrested. The hue and cry, an old common-law method of pursuing, with horns and voice, a felon or one who had dangerously wounded another, might be raised by

54 Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Holley v. Mix, Wend. (N. Y.) 350, 20 Am. Dec. 702; Zucker v. Zarembowitz, 168 N. Y. S. 805, 181 App. Div. 288; Allen v. Lopinsky (W. Va.), 94 S. E. 369; Davis v. Carroll, 159 N. Y. S. 568, 172 App. Div. 729; State v. Bradshaw (Mont.), 161 Pac. 710 (bona fide belief of officer not sufficient).

55 People v. McLean, 68 Mich. 480, 36 N. W. 231.

either officers or private persons, with the same rights and protection as under a warrant ; and if an officer had a warrant, and the felon fled into another county, he might be followed by hue and cry into the other county.62 Private persons joining in the hue and cry are not liable, even though no felony was committed.63

64

§ 878. Amount of force which may be used-Breaking doors. To effect an arrest or prevent an escape in the case of a felony all necessary force may be used even to the extent of taking life. All unnecessary force, however, is illegal.65 To justify the killing of the accused a reasonable necessity for so doing is essential.66 One who has committed a misdemeanor may not be killed to effect his arrest, or prevent his escape, but if he resists arrest all necessary force, even to taking life, is justifiable.67 An officer may take life in self defense.68 The same rules as to force used also apply to lawful arrests by private persons.

A peace officer, provided he has given notice of his authority and purpose to do so, and has been refused admittance, may break a door or window of a house in order to execute a warrant or make a lawful arrest without warrant." 69 Where a person has escaped from lawful custody and taken refuge in a house, an officer or private person either with or without a warrant may break into the house to retake if admittance has been refused upon demand.70 The officer breaking doors is not liable for trespass if the house is that of the

62 4 Bl. Comm. 293; Clark Crim. Proc. 48.

634 Bl. Comm. 293; Clark Crim. Proc. 48.

64 Clements v. State, 50 Ala. 117. 65 Skidmore v. State, 43 Tex. 93. 66 State v. Dierberger, 96 Mo. 666,

10 S. W. 168, 9 Am. St. 380.

67 Clements v. State, 50 Ala. 117; State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. 380.

68 State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. 380; Brooks v. Commonwealth, 61 Pa St. 352, 100 Am. Dec. 645.

69 Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510.

70 Allen v. Martin, 10 Wend. (N. Y.) 300, 25 Am. Dec. 564.