| Mass. | Oct 15, 1858
This bill of exceptions does not show any error in the trial of the defendant. It is the opinion of the court that Thayer, the constable, was lawfully called on by the justice to take the defendant into custody, and that he was lawfully acting as constable, when the defendant assaulted and beat him.
The Rev. Sts. c. 85, § 27, provide that “ every justice of the peace may, as a conservator of the peace, upon view of any affray, riot, assault or battery, within his county, without any warrant in writing, command the assistance of every sheriff, deputy sheriff and constable, and of all other persons present, for suppressing the same, and for arresting all who are concerned therein.” Such also is the common law. 2 Hale P. C. 86. 4 Bl. Com. 292.
An escape by a prisoner lawfully arrested warrants the retaking of him, on fresh pursuit, and the breaking of doors for that purpose, after demand and refusal of admittance. 1 Chit. Crim. Law, 61. And we do not doubt that a justice of the peace has the same authority to command assistance in pursuing and retaking an offender whom he has caused to be arrested for an offence committed in his presence, and who has escaped, which he has to command assistance in making the original arrest.
The case of Coupey v. Henley, 2 Esp. R. 540, cited by the defendant’s counsel, shows this only; namely, that the constable could not have lawfully arrested the defendant, without a written warrant, if he had not been required so to do by the justice in whose presence the defendant committed an assault and battery on Carr. There are other authorities to the same effect. 2 Gabbett Crim. Law, 147, 148. Exceptions overruled.