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.1 It has been held in several of the States2 that where an officer has knowledge 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

Although it is the

§ 34. Arrests without a warrant. 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

1 Grumon v. Raymond, 1 Conn. 39; Lewis v. Avery, 8 Vt. 287; Clayton v. 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 v. Scott, 1 Bailey, 294; Wall v. Trumbull, 16 Mich. 228.

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

8 Wilmarth v. Burt, 7 Met. 257; Twitchell v. Shaw, 10 Cush. 46; Grumon v. Raymond, 1 Conn. 40; Watson v. Watson, 9 Conn. 140, 146; Webber v. Gay, 24 Wend. 485; Cunningham v. 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 be may claim from its being fair on its face. Horton v. Hendershot, 1 Hill, 118; Cornell v. Barnes, 7 Hill, 35; Dunlap v. Hunting, 2 Denio, 643; Earl v. Camp, 16 Wend. 562. See Davis v. Wilson, 61 Ill. 527; Hill . Wait, 5 Vt. 124.

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:

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.2

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

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, gamblers, beggars, who are found violating the laws in the public thoroughfares.*

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

2 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 imprison. ment. State v. Holmes, 48 N. H. 377; Holly v. Mix, 3 Wend. 350; Reuck v. 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 v. 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 arrest without warrant, than of a private person. The suspicions must be altogether groundless, in order to make the officer liable for the wrongful arrest. See Marsh v. Loader, 14 C. B. (N. s.) 535; Lawrence v. Hedger, 3 Taunt. 14; Rohan v. Sawin, 5 Cush. 281; Holley v. Mix, 3 Wend. 350; Burns v. Erben, 40 N. Y. 463; Drennan v. People, 10 Mich. 169.

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

4 See Mitchell v. Lemon, 34 Md. 176, in which it was held that one

The constitutional principle, that arrest without warrant is permissible only in cases of strict public necessity, is very clearly set forth in a case from the Michigan courts, which pronounces a statute of that State unconstitutional, in that it authorizes the recaption without warrant and imprisonment of a convict, who is charged with the violation of the conditions of his pardon. No public necessity required this summary arrest without warrant; and, consequently, his deprivation of liberty had not been procured by “due process of law." 1

SECTION 35. The trial of the accused.

36. Trial must be speedy.

37. Trial must be public.

38. Accused entitled to counsel.

39. Indictment by grand jury or by information.

40. The plea of defendant.

41. Trial by jury-Legal jeopardy.

§ 35. The trial of the accused. "No man shall be deprived of his life, liberty, or property except by the judgment of his peers or the law of the land." One who has committed a crime can be punished by man, not because he has violated the law of God, or the law of nature (if the two systems of law can be considered distinguishable), but because he has broken the law of man. In order that a man may be lawfully deprived of his life or liberty, he must be convicted of a breach of the human laws, and the

may be arrested without a warrant, who was found violating the rules laid down by the city board of health for the preservation of the public health. In Burroughs v. Eastman, 101 Mich. 419, it was held that an ordinance did not contravene the constitutional requirement of "due process of law," which authorized police officers to arrest without warrant persons who were violating any of the ordinances in their presence, even in those cases in which the offense committed did not amount to a breach of the peace. But see contra, State v. Hunter, 106

N. C. 796.

1 People v. Moore, 62 Mich. 496.

conviction must be secured according to the provisions of these laws. If, according to the existing rules of the substantial and remedial law, one charged with a crime is not guilty or cannot be convicted of it, he stands free before the law notwithstanding he has violated the God-given rights of others; and to take away his life or his liberty would be as much an infringement of his constitutional rights, as would a like deprivation be of a man who leads a strictly moral life, and scrupulously respects the natural rights of his fellow-men. A man's life, liberty, or property cannot be taken away, except by due process of law. It is not proposed to explain all the rules of law governing the conduct and management of criminal prosecutions, since the object of the present outline of the subject is simply to make a statement of the leading constitutional protections to personal liberty. The trial must be conducted in complete accordance with the rules of practice and the law of evidence, in order that a conviction may lawfully support an imprisonment for crime. But these rules of practice and pleading may be changed by the legislature to any extent, provided the constitutional limitations to be presently mentioned are not violated.

As already explained, a temporary confinement of one accused of crime is permissible, in fact necessary, for the purpose of insuring the presence of the alleged criminal at the trial; for in cases of felony no one can be tried and convicted in his absence, even though his absence is voluntary. But this confinement is only temporary, and can justifiably continue only for as long a time as is reasonably

1 Winchell v. State, 7 Cow. 525; Maurer v. People, 43 N. Y. 1; Jacobs v. Cone, ŏ Serg. & R. 335; State v. Alman, 64 N. C. 364; Andrews v. State, 2 Sneed, 550; Jackson v. Commonwealth, 19 Gratt. 656. In capital cases, the record must show affirmatively that the accused was present throughout the trial, and particularly when the verdict is brought in and sentence pronounced. Dougherty v. Commonwealth, 69 Pa. St. 286. But it seems that the accused need not always be personally present at the trial for misdemeanors. Cooley Const. Lim. 390.

required by the prosecuting attorney to prepare the case of the State for trial.

§ 36. The trial must be speedy. It is, therefore, one of the constitutional limitations for the protection of personal liberty, that the trial be speedy. A man accused of a crime is entitled to a speedy trial, not merely because he is under a personal restraint, but also because his reputation is under a cloud, as long as the criminal accusation remains undisposed of. As a general proposition, the accused is entitled to a trial at the next term of the court after the commission of the crime, or after the accused has been apprehended; and if it should prove to be necessary for any cause, except the fault of the accused, to adjourn the court without bringing the prisoner to trial, in ordinary cases he would then be entitled to bail, although originally he was not. This is, however, largely a matter of discretion for the court.1 When the prisoner is ready for trial, the solicitor for the State is not entitled to delay, unless he satisfies the court that he has exercised due diligence, yet, for some cause, the shortness of time or the absence of material witnesses, etc., he is not prepared to proceed to trial. The continuance of cases must necessarily be largely left to the discretion and good faith of the prosecuting attorney, although it is the duty of the court to be watchful in behalf of the prisoners, who may through the carelessness or malice of the attorney for the State be kept in prison indefinitely awaiting a trial. The discretionary character of the duties of prosecuting. attorneys furnishes them with powerful means of oppres

1 See Ex parte Caplis, 58 Miss. 358, and State v. Hodgson, 66 Vt. 134. In the latter case it would seem that a law, which took away or materially reduced the discretion of the court in granting continuances or entering a nolle prosequi, would be unconstitutional. The provisions of the statute in question were designed to prevent continuances for the purpose of delay, and to insure a speedy trial; but the court held that they did not invade the province of the court.

2 Cooley Const. Lim. 311, 312.