48 N.H. 377 | N.H. | 1869
If it is held that Holmes’ escape from the House of Reformation without any actual breaking or force was only a misdemeanor, and would not of itself justify a private person in arresting him, still the offence for which Holmes was sentenced to the House of Reformation was a felony, and it is conceded that a private person might have legally apprehended him in the first instance upon reasonable grounds of suspicion. It is, however, claimed for the respondent that this right of private persons to make arrests originated in part at least in the liability of English muncipalities for the failure to arrest persons guilty of crimes within their limits, and that the right does not exist after trial, sentence and commitment.
We think it will be found upon examination that this right existed in England in other cases than those in which " hue and cry” had been made, and, instead of being based wholly upon the liability of the hundreds to penalty in case of non-arrest, it must have been founded in part at least on the same theory that induced the legislation imposing .penalties on the hundreds, viz, that it is not for the general interest of society that felons should escape their due punishment. If the sole reason for allowing private persons to arrest was their liability as mem
The arrest is allowed in order to bring the felon to punishment; see Shaw C. J. in Com v. Carey, 12 Cush. 246, p. 251. To have said that there shall be no arrests without warrant " would have endangered the safety of society:" Tilghman C. J. in Wakely v. Hart, 6 Binney 316, p. 318. The reason of the rule allowing private persons in certain cases to make arrests seems at least as applicable to the arrest of a felon who, after sentence upon his plea of guilty, has escaped from confinement, as to the arrest of a person who, though there is reasonable cause to suspect him, has not yet been tried or sentenced. The former has been proved guilty of a felony by his own solemn admission ; the latter may turn out to be innocent. The former has beyond all doubt committed two crimes, a felony and a misdemeanor; the latter may not have committed any crime at all. " The people ought not to be deprived of any right by an escape of whatever kind from custody under criminal process Cowen J. in Clark v. Cleveland, 6 Hill 344, p. 349; "and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there, seems to be no reason he should take any manner of advantage from it;” 2 Hawkins P. C. 200, sec. 12. The well settled doctrine that a private person may, after the commission of a felony, arrest an individual whom he has reasonable cause to believe guilty, does not admit of the limitation — " provided the person thus suspected has not solemnly admitted his guilt, and afterwards escaped from legal custody.”
Exceptions overruled..
