NOTE Of search warrants. Of the execution of search war. rants. rested within the jurisdiction of the justice who grants the warrant, application is made to the justice of the county in which it is suspected he may be; and such justice, instead of taking new examinations and issuing a new warrant, inquires, by the oath of the officer, into the authenticity of the signature to the warrant; and this being proved, he must then adopt the proceedings taken, and give the warrant effect within his jurisdiction, by backing or indorsing it, R. v. Kynaston, 1 East, 117. Before dismissing this subject, a few words may be said on search warrants; by the issuing of which, a clue is often afforded to the detection of offenders. No such warrant ought to be granted without oath being first made, either by the actual owner of the goods, or some person entrusted with the care of them, that they have been actually lost, that he suspects they have been stolen, and that they are concealed in certain premises, with the grounds of his suspicions. A bare surmise is not enough, Dalt. J. 403; 4 Inst. 177. But he need not swear positively that a felony has been committed, Elsee v. Smith, 2 Ch. R. 304; 1 D. & R. 97. It is now agreed, that general warrants, or warrants to search all suspected places are illegal, the constable, and not the justice, being thereby made the judge of the reasonableness of the applicant's suspicions. The premises therefore, which it is intended to search, ought to be described with convenient certainty, 2 Hale, 150; 2 Hawk. c. 13. The warrant ought to be directed to a constable or other public officer, and not to any private person; though it is fit the party complaining should be present and assistant, because he knows his goods, 2 Hale, 150. If the door be shut, and upon demand, not opened, it may be broken open; and so may boxes &c., after the keys have been demanded; and though the goods be not found, the officer will be excused: but if the party obtaining the warrant act maliciously, he is liable to an action on the case, Cooper v. Booth, 3 Esp. 135. It is proper that the warrant should express that the search be made in the day time; for under pretence of searches made in the night, robberies and burglaries have been committed, 2 Hale, 150. However, in cases not of suspicion only, but of positive proof, the injunction to search in the day time may be omitted, so that the warrant may be executed by night, lest the offender and goods should be gone before morning, Barl. J. Sear. Warr. The officer must strictly observe the directions of the warrant ; as if he be directed to seize only stolen sugar, and seize tea, he will be a trespasser, Price v. Messenger, 2 B. & P. 158. And where a constable, having a warrant to search for specific articles alleged to have been stolen, took away those and certain others supposed also to have been stolen, but which were neither mentioned in the warrant, nor likely to be of use in substantiating the charge of stealing the goods specified, it was held that the constable was a trespasser, Crozier v. Cundey, 6 B. & Cr. 232. A warrant directing a search in certain premises, will not justify a search in any other premises, Burn, J. Sear. Warr. A searchwarrant for libels and other papers of a suspected party is illegal, Entick v. Barrington, 2 Wils. 275; Money v. Leach, 3 Burr. 1766, 1 Bl. Rep. 555 The warrant ought to command, that the goods found, together with the party in whose custody they are found, be brought before some justice of the peace, to the end that, upon further examination of the facts, the goods, and party in whose custody they are found, may be disposed of according to law, 2 Hale, 150: and the reason is, that the receiving of stolen goods carries with it a great presumption, that such receiving was to aid the thief; and besides, by the examination of the receiver, evidence may be gotten to discover the thief, 2 Hale, 150. NOTE. return of the Upon the return of the warrant, the magistrate ought to The duty of inquire into the truth, by the oaths of persons on both sides, the justice on except the person who may appear to be implicated, and warrant. who ought not to be examined on oath. If the goods appear not to have been stolen, they should be restored to the possessor, and the party ought to be discharged. If the person, in whose possession they were found, appear to have stolen them, examinations ought to be taken against him, in order that he should abide his trial; and the goods should be handed to the police for safe custody, that they may be produced upon the trial, and that the party robbed may proceed by prosecution to obtain restitution of them. Should the party appear to have come innocently by goods which were really stolen, he ought to be bound over as a witness against the person from whom he received them, 2 Hale, 151-2. County of S. to wit(a). Summons. You are hereby required personally to FORMS. be and appear before me, J. P. one of (1) his majesty's justices of peace for the county of S. [or, if in Dublin, say, before me, or any one or more of the divisional justices of the division, No. in said district, at the divisional office in street,] on &c., at the (a) In Dublin, say, "Police District of Dublin Metropolis, to wit." The alterations pointed out in this form, may be adopted in all the subsequent ones when necessary. FORMS. hour of &c., to answer the complaint of &c., for &c., [pro- 183 the day of J. P. (2) Warrant. (3) Form of backing warrant. County of S. To all constables, and other peace officers, in and for the said county. These are to command you, in his majesty's name, forthwith to apprehend and bring before me, or some other of his majesty's justices of the peace in and for the said county, the body of A. B. of &c., labourer, to answer to a charge of having [here state the offence; as, feloniously murdered one C. D." or, "assaulted one C. D." or, "feloniously burnt a certain hayrick of one C. D."] Herein fail not at your peril. 183 Given under my hand [and seal] the County of T. day of J. P. (Seal.) Due proof on oath having been made before me, one of his majesty's justices of peace for the said county of T. that the name J. P. within subscribed is of the proper handwriting of such justice as is therein mentioned, I hereby authorize E. F. who brings me this warrant, and all other persons to whom the same is directed, to execute it within the said county of T. of Given under my hand [and seal] this day R. S. (4) Search warrant. County of S. at to wit. To X. Y. [sub] constable of police in and for said county. Whereas it appears to me, by the information on oath of A. B. of &c., [yeoman] that he hath probable cause to suspect, and doth suspect that the following goods viz. [name the goods] have been feloniously stolen and carried away, off and from the premises of [the said A. B.] in the county [aforesaid] and that the said A. B. hath probable cause to suspect, and doth suspect that the said goods, or part thereof, are concealed on the premises of C. D. of in the said county [yeoman]. These are therefore to authorize and require you, with suitable assistants, to enter, in the day time, into and upon the said premises of the said C. D., and there diligently to search for the said goods. And if the same, or any part thereof, shall be found upon such search, that you bring the goods so found, and also the body of the said C. D. before me or some other justice of the peace of the said county of S., to be dealt with according to law. in the same county, the Given under my hand at 183 J. P. Justice of the Peace for the county of S. Sheriffs and receive all prisoners committed to them. CHAPTER II. OF THE COMMITTAL, AND BAIL. 4 Edw. 3, c. 10, Eng. (2) That the sheriffs and gaolers shall gaolers shall receive and safely keep in prison from henceforth such thieves and felons(a), by the delivery of the constables and townships, without taking any thing for the receit. And the justices assigned to deliver the gaol, shall have power to hear their complaints, that will complain upon the sheriffs and gaolers in such case, and moreover, to punish the sheriffs and gaolers if they be found guilty. Justices of the peace shall impri son only in the common gaol. Persons arrested in 5 Hen. 4, c. 10, Eny. Item. Because that divers constables of castles within the realm of England, be assigned to be justices of peace by commission of our lord the king, and, by colour of the said commissions, they take people to whom they bear evil will, and imprison them within the said castles, till they have made fine and ransom with the said constables for their deliverance; (2) it is ordained and established, that none be imprisoned by any justice of the peace, but only in the common gaol; saving to lords and others (which have gaols) their franchise in this case. 45 Geo. 3, c. 92, s. 1. Whereas by an act [13 Geo. 3, c. 31, Eng.] and also by another act [44 Geo. 3, c. 92, ante 456,] provision is made for the apprehending of offenders in England, Scotland, and Ireland respectively, so that such offenders may be apprehended in one of the said parts of the united kingdom, for offences charged to have been committed within either of the other parts of the same; and whereas there is no provision made in the said acts for admitting such persons to bail, who may be so apprehended for offences which by law are bailable. Be it therefore &c., that in case any person or persons shall be apprehended in one of the said parts of the the U. K. for united kingdom, for an offence which was committed, or charged to have been committed, in either of the other parts of the same, under any warrant indorsed in such manner as is in another, may that respect provided by virtue of either of the said recited acts, such person or persons shall and may be taken before the judge or justice who indorsed the said warrant, or before some other justice or justices of the county, stewartry, city, liberty, town or place where the same was indorsed; and in case the offence be bailable in law, and such offender or offenders shall be willing and ready to give bail for his, her, or their appearance, according to the exigence of the said warrant, such judge or justice or one part of a bailable offence committed in be there admitted to bail. (a) Viz.-Those "taken and attached by the constables and townships." |