isfied that there is just cause for the complaint he shall dis-
charge the accused and render judgment in favor of the State
against the complainant for the costs of the prosecution and
issue execution therefor.

The accused may waive trial before the magistrate and enter
into recognizance with security for his appearance at court.
The magistrate should, however, in this case investigate the
complaint far enough to satisfy himself as to the nature of the
offense it is feared will be committed with a view to fixing the
amount of bail. The amount fixed by law in Ohio is not less
than fifty and not more than five hundred dollars. The magis-
trate should be guided by the heinousness of the offense, the
probability that it will be committed if no bail is required, and
the ability of the accused to give bail. His object should be to
4



50 HOW TO PROCEED.

preserve the peace and require such bail as in his judgment
under the circumstances will accomplish that end.

Having decided the amount of bail to be given, either after
full examination of the complaint or when the accused waives
trial, he shall commit the accused to jail if he fail to give the
requisite recognizance, to remain until discharged by due
course of law.

The accused is entitled to trial at the first term of court un-
less there is good cause for continuance.

If the complainant fail to prosecute the case in the upper
court the accused shall be discharged, or if upon a hearing
under oath the court is of the opinion that there is not just
cause for complaint, the accused shall be discharged and judg-
ment entered against the complainant for costs, and award
execution therefor. But if the court finds good cause for the
complaint, the accused shall be ordered to enter further se-
curity, for such time as may be just, to keep the peace and be
of good behavior, and judgment is rendered against him for the
costs, and execution awarded therefor.

A magistrate, mayor, or police judge may, without process
or other proof, order any one to give security to keep the peace,
who creates a disturbance in his presence, or threatens to beat
or kill another, or contends with hot and angry words.

Any person convicted of a misdemeanor may be required
by the court to enter into recognizance to keep the peace for
such time as the court may direct, not exceeding two years.

Threatened Prize Fight. Any sheriff, constable, marshal
or police officer who has reason to believe that any one is about
to engage in a prize fight in his bailiwick, either as principal
or second, shall forthwith arrest him and take him before a
judge of the common pleas, or magistrate, where a hearing
shall be had as before described, and if the compkint is found
true, the accused shall enter into a recognizance, with sureties



SEARCH WARRANT. 5 I

in a sum not less than five hundred, and not more than ten
thousand dollars, that he will not engage in any such fight
within one year, in this State or elsewhere. If he fails to give
the bail he must go to jaii, but may be released upon *>is own
recognizance in a similar amount after one month's confine-
ment.

SEARCH WARRANT.

There are four objects for which a magistrate, mayor, or
police judge, may issue a warrant ordering an officer to search
any house or place :

1. For property stolen, taken by robbers, embezzled, or ob-
tained under any false pretense.

2. For forged or counterfeit coins, stamps, imprints, labels,
trade-marks, bank bills, or other instruments of writing, and
dies, plates, stamps, or brands for making the same.

3. For books, pamphlets, ballads or printed papers, contain-
ing obscene language, prints, pictures, or descriptions, mani-
festly tending to corrupt the morals of youth, and for obscene,
lewd, or indecent, or lascivious drawings, lithographs, engrav-
ings, pictures, daguerreotypes, photographs, stereoscopic views,
models, or casts, and for instruments or articles of indecent or
immoral use, or instruments, articles, or medicines for procur-
ing abortion, or for the prevention of conception, or for self-
pollution.

4. For any gaming table, establishment, device, or appara-
tus kept or exhibited for the purpose of unlawful gaming, or to
win or gain money or other property, and for any money or
property won by unlawful gaming.

An Affidavii Necessary. Before a magistrate or other
officer issue a search warrant there must be filed with him an
affidavit, particularly describing the house or place to be
searched, the person to be seized, and the things to be searched
for, and alleging substantially the offense in relation thereto,



52 HOW TO PROCEED.

and stating that affiant believes, and has good cause to believe,
that such things are there concealed.

The search-warrant is sometimes a very effective method
of preventing crime, as it oftentimes secures the implements
with which crime is committed and thus prevents their fur-
ther use.

The warrant should contain a copy of the affidavit.

The accused has a right to have the warrant and affidavit
read to him. The warrant should order the search to be made
in the day-time, unless there is urgent necessity for a search
in the night, in which case a search in the night may be or-
dered. The warrant must say whether the search is to be
made in the day or night.

If the search discovers the articles desired, they are kept
by the magistrate issuing the warrant as evidence.

If the accused is discharged, the articles taken shall be
returned to him; if convicted, they shall be returned to the
proper owner if stolen, and the other things destroyed under
direction of the court.

For right to break doors see same subject under Arrest.

These two instruments, the peace-warrant and the search-
warrant, are almost the total machinery of any State for the
active and direct prevention of crime.



CHAPTER II.

WHO MAY ARREST.

ARRESTS are made with and without warrants. The
general rule of law in all the States is set forth in the
Ohio Statute, Section 7129: "A sheriff, deputy sheriff,
constable, marshal or deputy marshal, watchman or
police officer, shall arrest and detain any person found violat-
ing any law of this State, or any legal ordinance of a city or
village until a legal warrant can be obtained."

It will be observed that this statute relates to the arrest of
a person found in the act of violating a law. If an officer finds
a person in possession of an article which he has stolen previ-
ously, that will be in the law a sufficient finding of him in the
act of committing a larceny, and he may be arrested without a
warrant. But the officer must know, of his own knowledge,
that the article is stolen. It will not do for another to tell
him. He can not act on that. But if the thief admit that the
article is stolen, he may arrest him without warrant. A full
and interesting discussion of this subject will be found in
Judge Mathews' charge to the jury in the Belch case, which is
given in another place.

If an officer is resisted by the person whom he is attempt-
ing to arrest, the amount of force he may use depends upon
the grade of the crime for which he is arresting the person.
If the crime committed is a felony, all the force necessary to
effect the arrest may be used, even to shooting, and if the
criminal is killed, it will be his own fault. It must be abso-
lutely necessary, however, to shoot to effect the arrest in order
to justify the officer in doing so.

53



C4 HOW TO PROCEED.

In this connection three questions of importance arise:
i . When an officer may arrest without a warrant.

2. What constitutes finding a person in the act of violating
the law.

3. When may an officer shoot at an escaping prisoner.

Early in the year 1887 a case came up in the courts of Cin-
cinnati that beautifully illustrates the law on these points, and
we think students of this subject will be benefited and inter-
ested by the charge of Judge Samuel R. Mathews to the jury
in the case.

The circumstances were as follows: Kendrick L,. Belch was
a policeman, belonging to the Cincinnati Police Force. A col-
ored man named Brown had stolen a coat in Kentucky from a
man named McBee, and brought it into Ohio. Belch, while in
the regular performance of his duty, undertook to arrest Brown
for the larceny of the coat without a warrant. Brown fled and
Belch shot and wounded him with a mortal wound from which
he died. Belch was arrested and put upon trial for man-
slaughter. Following is the most important part of Judge
Mathews' charge to the jury before they retired to make up
their verdict.

JUDGE MATHEWS' CHARGE.

"The act complained of on behalf of the State is the firing
of a pistol loaded with ball at the person of James Bro am by
the defendant, Belch, under circumstances which the law did
not justify him in doing. After that act of the defendant is
shown by the evidence and found and ascertained by the jury,
the question of whether or not it was an unlawful act is for the
court to determine, under the laws of the State. And I will
say to you, right here, that if the shooting of a pistol loaded
with ball at the person of James Brown, by this defendant, is
proved to your satisfaction or is admitted on all hands, and if
death resulted from the wound received from that pistol ball,



JUDGE MATHEWS' CHARGE. 55

then, unless the defendant was acting in some way or in some
capacity authorized by law to justify him in firing that pistol
at him, under the circumstances, then the crime is made out,
and it will be your duty to find him guilty of manslaughter as
charged.

"Now there are two defenses suggested in the evidence and
the arguments of counsel, in case the jury should find that the
act complained of was committed, which, it is claimed, justified
the defendant in discharging his pistol at Brown at that time.

"The first is, that the defendant was acting in his just ^nd
necessary self-defense at the time he fired the pistol and in-
flicted the wound.

"The second is, that whether that be so or not, he was
a police officer of the City of Cincinnati at that time, and, as
such, duly authorized to arrest offenders against the laws of
the State and offenders against the municipal ordinances of the
city; that he was on duty at that time; that he wore the insig-
nia of his office, to-wit, his uniform and his badge, visible to all
persons. That he undertook, to arrest Brown, the deceased, for
a crime known to the laws of the State of Ohio; that he did, in
fact, arrest him, and that Brown attempted to escape from that
arrest and fled, and that thereupon he was justified in firing at
him for the purpose of resuming his arrest and recapturing his
person in order to subject him to criminal prosecution for a i
charge against the laws of the State of Ohio."

Then followed a definition of self-defense and when it justi-
fies a homicide, the substance of which is that it is only in a case
wherein the slayer, in the careful and proper use of his facul-
ties, in good faith believes and has reasonable grounds to be-
lieve that he is in imminent danger of death or great bodily
harm at the hands of the person slain, and this must be shown
to the jury by the one who seeks to justify himself on this
ground by a fair preponderance of the testimony.



56 HOW TO PROCEED.

Then the court took up the questions for the elucidation of
which we introduce this charge here :

"The next question raised by the defense is this: That
Brown, having been charged by McBee with the crime of lar-
ceny, and his arrest having been requested of this defendant,
who was then a police officer on duty on that beat, that the
defendant undertook to arrest Brown in order to subject him
to prosecution for that offense.

"And the question has been raised here as to the legality
of the arrest, if an arrest was made. Whether an arrest was
made by the defendant of Brown or not, is a question of fact
for you, under certain principals of law to which I will call
your attention in a moment. But the question of law has been
raised. The State claims that for the offense charged the
officer had no right to arrest Brown without a warrant. And
it was confessed that no warrant had been issued for the arrest
of Brown.

"The law of this State is found in the code regulating crim-
inal procedure (Sections 7129 and 7130), and declares that a
Sheriff, Deputy Sheriff, Constable, Marshal- or Deputy Mar-
shal, watchman or police officer shall arrest and detain any
person found violating any law in this State, or any local
ordinance of a city or village, until a legal warrant can be
obtained. That, you will observe, gentlemen, authorizes the
officers named in it and that includes a police officer of
the City of Cincinnati, in which capacity this defendant
was acting at the time to arrest and detain any person
found violating any law in this State or any local ordinance of
a city or village, that detention to last until a legal warrant can
be obtained. The violation of the law requires, gentlemen,
that in making arrests, as a general rule, a warrant must be
first obtained, duly issued by the officers intrusted by the law
of the State with that duty, and that warrant can only issue



JUDGE MATHEWS' CHARl 57

upon an affidavit being filed before that officer, stating and
showing to the satisfaction of that officer that an offense
against the laws of the State has been committed by the per-
son named in it. That is the general rule. Every person
charged with crime must be arrested under a warrant of that
kind, obtained upon an affidavit issued by a magistrate or
other officer authorized by law to issue warrants; and the
issuance of the warrant is not a matter of right, because it is
made the duty of the officer before whom that affidavit is filed
and to whom application is made to issue a warrant to examine
to see whether or not there is probable reason to believe that
an offense has been committed before he is required to, or, in-
deed, justified in issuing a warrant.

" There are, however, certain exceptions to that general rule,
and one of them is contained in the section to which I called
your attention: That these officers, among whom police offi-
cers of the City of Cincinnati are in which category the de-
fendant is found shall arrest and detain any person found
violating the laws of the State, or a local ordinance of a city or
village. What does it mean, gentlemen? In what cases has a
police officer the right to arrest without a warrant? Because the
right to arrest, under that section, is as broad as the law. It is
not confined to any particular class of cases, as felonies and mis-
demeanors. Our law divides all classes of criminal offenses
into two classes, felonies and misdemeanors. Felonies are those
offenses which the Legislature has provided punishment for by
confinement in the State Penitentiary, or death, as in the case
of murder in the first degree.

"Misdemeanors are all offenses for which a less punish-
ment than that is provided. Now, an officer named in Section
7129 has power to arrest in the case there supposed, even for a
misdemeanor, as well as felony, and for all violations of the or-
dinances of the city; but it is only in case that a person is



58 HOW TO PROCEED.

found violating one, and that is found by himself, which, in
the old law, was clear, actual view. In other words, if an
officer saw a person committing a crime against the laws of
the State, whether it was a felony or a misdemeanor, or against
the ordinance of the city, he had power to arrest him without
a warrant, because he was found committing it. It is not
claimed, however, in this case, that this defendant found this
Brown in the commission of any offense at the time he un-
dertook to arrest him, if he undertook to arrest him at
the time he first went to the saloon in question. The al-
legation on behalf of the defendant is that the crime with
which Brown was charged was the stealing of a coat, the
value of which has been put by the man who claims to have
owned it at $6 or $7, and that that coat was brought by Brown
into the State of Ohio, and that, therefore, there was an offense
committed by Brown in the State of Ohio. The law with re-
gard to that, gentlemen, is this: If a man steals in the State of
Kentucky an article of personal property, he is guilty of lar-
ceny there. If he brings it into Ohio, and remains in posses-
sion of it in Ohio, he is guilty of larceny in Ohio as well, that
being what we call a 'continuous larceny.' He is guilty of
possession in Ohio, which is equivalent to the original stealing.
"Larceny is divided by the law of this State into two kinds,
grand and petit. Grand larceny is where the amount stolen is
$35 or upward, and petit larceny is where the amount stolen
is below that. Grand larceny is a felony and petit larceny is
a misdemeanor under the laws of this State. Now I charge
you, with regard to the validity of the arrest on that charge by
this defendant, that information merely conveyed to him was.
not sufficient to warrant him in making an arrest, without a
warrant duly issued from the proper officer. But if he found
this man in possession of a coat that would be sufficient finding
by him of Brown in the commission of petit larceny within



JUDGE MATHEWS CHASGB. 59

this State, and would justify him in arresting him. That is a
question of fact for you to determine, gentlemen, whether he
acted simply upon information conveyed to him by those
colored men, McBee and the other, who made complaint, or
whether he had any information other than that, which would
enable him to say that he saw or found Brown in the commis-
sion of that offense of stealing the coat. If he did not, if he
acted merely upon the information of these outsiders, no mat-
ter whether that information was correct or incorrecl, he had
no right to make the arrest without a warrant.

"It is not necessary that the defendant should have actually
seen the goods, or that they should have been in the manual
possession of Brown at that time. It is sufficient if Brown
brought them into the State of Ohio, and had them in his con-
structive possession. If he had them in his room, where he
slept, or if he had them in any other place where they were
subject to his control, they were just as much in his possession,
in contemplation of law, to render him guilty of larceny, as
they would be if he had the coat in his arms or on his back.
The officer had no need to see Brown in actual possession, if
he knew from Brown's statement, or from the facts that existed
there, not from the mere statement of the prosecuting witness
in such a case as that, but if he had knowledge of his own
because the statute authorized him only to act upon his own
knowledge. If he had knowledge that Brown was in posses-
sion, it is not necessary that the goods be actually there.

"For instance, if Brown should have confessed to the offi-
cer that the goods were in the State of Ohio ; that he had stolen
them in the State of Kentucky and brought them to the State
of Ohio, and that they were still here subject to his order and
control, it would be sufficient to find him in the actual perpe-
tration of the crime, within the meaning of this statute, and to
authorize him to make the arrest.



60 HOW TO PROCEED.

"You will observe, gentlemen, that I have said to you that
if the value of the clothes as sworn to and that is a question
of fact for you to find was under $35, the crime, if it was a
crime in the State of Ohio, was that of petit larceny, which is a
misdemeanor in this State. It is alleged, and there is testi-
mony tending to show that when the officer showed himself in
pursuance of a former agreement entered into between him and
the complaining men, McBee and his friend, in this saloon, that
Brown took to his heels and attempted to escape, went out the
side door into the hall, court, or area, and back through a pas-
sageway which has been described to you and which you have
had an opportunity of seeing I have not out onto the street
in the rear of these premises, where the final scene took place.
That upon this flight the officer pursued, upon which the man
Brown took a bar which served as a fastening for that door,
and, as is claimed by counsel in the argument, committed an
assault upon the defendant by throwing that bar at him. You
have heard the evidence upon that subject, gentlemen. Whether
or not that bar was thrown by Brown at the defendant with the
view to striking him, or whether it was simply taken out of its
place as a fastening to the door and dropped upon the floor, in
order to make his exit you will determine that fact. If you find,
however, that Brown simply took it out and dropped it, that
was no assault. If he threw it at the defendant with the intent
to strike him, and was within striking distance, then it was
what in law is called an assault, even though the defendant was
not struck. But an assault on a man is, in itself, a misdemean-
or, and not a felony. That is, it is not punishable by impris-
onment in the penitentiary, but only by confinement in the
work-house. Bear this distinction in mind, gentlemen, because
it becomes important after a while.

"It is then stated in evidence, with what truth you are to
determine, that after Brown started out the door, running, the



JUDGE MATHEWS' CHARGE. 6 1

defendant followed him in a run, pursuing him; that as Brown
made his way through the yard in order to get out the rear, he-
had to ascend a small flight of steps; that on top of them, or at
the bottom of them, I don't know which, he slipped and fell,
and that when he fell the defendant caught up to him and put
his hand upon him, and then it is claimed, on behalf of the de-
fendant, that he arrested him. An arrest, gentlemen, in law is
the taking into custody a person in pursuance of a legal com-
mand or authority. Mere spoken words will not constitute an
arrest, there must be something in the way of physical con-
straint, though it is enough if the party making the arrest may
touch the other, even with the end of his finger.

" When he came to the steps it is claimed that when the
man was down the officer put his hand upon him, and that
Brown produced a razor and threw it at the defendant. There
is a question of fact that you will have to determine. In the
first place, did he throw such razor? H so, with what intent
and under what circumstances? If he threw it at him under
circumstances which justify you in believing that he intended
to kill the defendant or to inflict a wound upon him ; if, from
consideration of the nature of the instrument and the manner
in which it was thrown, you come to the conclusion that it was
thrown by Brown, and it was thrown with intent either to
wound or to kill the defendant, then it was a felony committed
by Brown. Because an assault with an intent to kill or wound
is punishable by imprisonment in the State Penitentiary, and
is, therefore, a felony. And these distinctions are important,
gentlemen, to keep in view, to determine what the right of the
defendant was in pursuing Brown and firing this shot at him.
If he pursued him simply to recapture him, take him into
custody, for the purpose of making him answer to the alleged
larceny of those goods, then he was pursuing him with intent
to arrest him for a misdemeanor, and then he had no right to
fire a shot at him, unless it was in his necessary self-defense.



62 HOW TO PROCEED.

"The other question of his right, as a police officer, to fire
at an escaping prisoner does not arise. But if you find that
there was no self-defense upon the part of this defendant, and
the question turns upon his lawful authority as a police officer,
I charge you that if he undertook to arrest Brown, who was es-
caping from him, then, if he undertook to arrest him for a mis-
demeanor as I have described to you, he had no authority in
law to fire at him with a loaded pistol, and if he did so he com-
mitted an unlawful act; and if the consequence of that unlaw-
ful act was the death of Brown the defendant is guilty of man-
slaughter. If, however, he pursued him with intent to take
him into custody for a felony, that is to say, for assault with
intent to kill or wound, then he would have, under certain cir-
cumstances, a right to pursue him to that extent, even to use
his pistol, in order to stop him and to effectually make his cap-
ture. The law discriminates between offenses of a great nature
and offenses of a slight nature. Where a felony has been com-
mitted, either if the officer has a warrant for the arrest of the
person or if the felony has been committed in his presence, in