Process defective in the frame of it. Every warrant ought to specify the offence charged, the authority under which the ar rest is to be made, the person who is to execute it, and the person to be arrested. Master Radford;" but he did not produce his mace: Murray resisted, and one of his companions killed the officer. Upon a special verdict it was urged that the arrest in the night was illegal, that the serjeant should have shewn his mace, and that a custom stated in the verdict to arrest without process first against the goods was illegal: but the objections were overruled; and judgment was given for the King, and one of the prisoners was executed. (c) But if the process be defective in the frame of it, as if there be a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing of the process, and the officer endeavouring to execute it be killed, this will amount to no more than manslaughter in the person whose liberty is so invaded. (d) Every warrant ought to specify the offence charged; the authority under which the arrest is to be made; the person who is to execute it; and the person to be arrested. (e) A warrant, therefore, leaving a blank for the Christian name of the person to be apprehended, and giving no reason for the omission, but describing him only as H., the son of S. H., and stating the charge to be for assaulting A. B. in the execution of his duty, without particularizing the time, place, or any other circumstances of the assault, is too general and unspecific, and therefore a resistance to an arrest thereon, and killing the person attempting to execute it, will not be murder. Upon an indictment for maliciously wounding, it appeared that George Hood having assaulted Brown, a sheriff's officer, who was endeavouring to arrest his father, Samuel Hood, under a capias ad respondendum, Brown applied to a magistrate for a warrant to apprehend George Hood for an assault, but not being at that time acquainted with his Christian name, the warrant, so far as it related to the name and description of the person committing the assault, was in the following terms, viz., "to take the body of Hood (leaving a blank for the Christian name) of, &c., by whatsoever name he may be called or known, the son of Samuel Hood, to answer, &c., on the oath of Francis Brown, an officer of the sheriff of the county of Wilts, for assaulting him in the execution of his duty." This warrant was delivered to the tithing-man to execute, and he went to S. Hood's house, with Brown and others, to execute it; and Brown pointed out G. Hood to the tithing-man as the person on whom the warrant was to be executed, and upon attempting to apprehend him, he stabbed a person whom the tithing-man had charged to aid and assist. S. Hood had four sons who resided with him. It was objected that as the Christian name of George Hood was omitted, the warrant was illegal, and would not authorize his apprehension; and, upon a case reserved, the judges were unanimously of opinion that the warrant was bad, because it omitted the Christian name; it should have assigned some reason for the omission, and have given some particulars of George Hood, by which he might be distinguished from his brothers. (f) (c) Mackally's case, 9 Co. 65 b. (d) 1 Hale, 457. 1 Hawk. P. C. c. 31, s. 64. Fost. 312. 1 East, P. C. c. 5, s. 78, p. 310. Sir Henry Ferrers' case, Cro. Car. 371. (e) Per Coleridge, arguendo, Rex v. Hood, infra. (f) Rex v. Hood, R. & M. C. C. R. 281. See per Tindal, C. J., in Hoye v. Bush, infra, note (g). The decision seems to have proceeded on the omission of the Christian name alone, but the marginal note adverts The essence of a warrant is the officer may know whether arrest. It is of the essence of a warrant that it should be so framed that the officer should know whom he is to take, and that the party upon to describe the whom it is executed should know whether he is bound to submit to party to be the arrest. If, therefore, a constable, having a warrant directing him taken, so that to apprehend A. B., arrest C. B. under the warrant, such arrest is know whom he illegal, although C. B. were the person against whom the magistrate is to take, and intended to issue the warrant, and although the person who made the party may the charge before the magistrate pointed out C. B. as the man he is bound to against whom the warrant was issued. A magistrate for the county submit to the of Herts issued his warrant, directing a constable to take John H., charged with stealing a mare. Armed with this warrant, the constable went to Smithfield, and there arrested Richard H., who was the party against whom information had been given, and against whom the magistrate intended to issue his warrant, and who was supposed to be called John H.; his name, however, was really Richard, H., John H., being the name of his father. There was no proof that a felony had been committed. The person who made the charge before the magistrate pointed out Richard H. as the man who had stolen the mare, and a person present said that his name was John H., and there was clearly evidence to go to the jury that Richard H. was the man intended to be taken up. Coltman, J., told the jury that the law would not justify the constable's act, the warrant being against John and not against Richard, although Richard was the party intended to be taken; that a person cannot be lawfully taken under a warrant in which he is described by a name that does not belong to him, unless he has called himself by the wrong name; that a constable may, in many cases, take up a person on a charge of felony by virtue of his office of constable, and without any warrant from a magistrate; but that he can only do so within the district for which he is chosen constable. The jury having found a verdict against the constable, the Court held that the direction was right. That in civil process, the taking a person by the name mentioned in a warrant, his real name being different, cannot be justified, and that no distinction could be made between civil and criminal process. In either case the object of the warrant is to identify the party intended to be arrested. (g) It appears to have been formerly a very common practice to issue Of the illega blank warrants, notwithstanding their illegality; a practice exceed- lity of blank ingly reprehensible, and which, in the following case, afforded, to a to the insufficiency of the statement of the offence for which the warrant was granted, and it seems that the warrant was bad on that ground also, as it did not state where the assault was committed, and therefore did not show that it was within the jurisdiction of the magistrate who granted the warrant. C. S. G. (9) Hoye v. Bush, 1 M. & Gr. 775. As there was no authority to apprehend Richard H. under the warrant, and the constable was out of his district, he was in the same situation as a private individual. and therefore could only have defended himself by proving that a felony had been committed by Richard H. See ante, p. 534, and per Tindal, C. J. 1 M. & Gr. 780. "If he were the guilty person, the officer would not want the warrant, supposing a felony to have been committed." If the warrants. Stockley's case. Other cases as to the illegality of blank warrants. desperate and atrocious offender, a shelter from the capital punishment which he well merited, by extenuating his crime of killing the person who assisted in executing the warrant to manslaughter. The prisoner Stockley, about Lady-day 1753, had been arrested by Welch, the deceased, at the suit of one Bourn, but was rescued; and he afterwards declared, that if Welch offered to arrest him again, he would shoot him. A writ of rescue was made out at the suit of Bourn, and carried to the office of a Mr. Deacle (who acted for the under-sheriff of Staffordshire) to have warrants made out upon such writ. The custom of the under-sheriff was to deliver to Deacle sometimes blank warrants, semetimes blank pieces of paper, under the seal of the office, to be afterwards filled up as occasion required. Deacle made out a warrant against Stockley upon one of these blank pieces of paper, and delivered it to Welch, who inserted therein the names of Thomas Clewes and William Davil, on the 12th of July, 1753. On the 19th of September following, Welch, Davil, Clewes, and one Howard, the person to whom Stockley had declared he would shoot Welch, went to arrest Stockley on this warrant. Clewes and Davil, having the warrant, went into Stockley's house first, and called for refreshment; but, an alarm being given that Welch was coming, the door was locked: upon which Clewes arrested Stockley on this illegal warrant, who thereupon fell upon Clewes, and thrust him out of doors, but kept Davil within, and beat him very dangerously, he crying out murder. On hearing this, Welch and Howard endeavoured to get into the house: and Welch broke open the window, and had got one leg in, when Stockley shot and killed him. Stockley then absconded, and was not apprehended till December, 1771. At the Lent Assizes following he was tried for murder, when the jury expressly found that the deceased attempted to get into the house to assist in the arrest of Stockley. Howard, Clewes, and Davil, being dead, their depositions before the coroner were read, and minutes were taken of the above facts for a special verdict: but, to save expense, the case was referred to the judges of the King's Bench, who certified that the offence amounted, in point of law, only to manslaughter. (h) This practice of issuing blank warrants was reprobated in a more recent case, where the sheriff having directed a warrant to A. by name, and all his other officers, the name of another of the sheriff's officers B. was inserted after the warrant was signed and sealed by the sheriff; and, therefore, an arrest by B. was holden illegal. (1) And in another case it was considered that the arrest was illegal, where the warrant was filled up after it had been sealed. (j) But if the name of the officer be inserted before the warrant is sent out of the sheriff's office, it seems that the arrest will not be illegal, on the ground that the warrant was sealed before the name of the officer was inserted. Banks and Powell had a warrant from the sheriff of Salop upon a writ of possession against the prisoner's house; and their names were interlined after the warrant was sealed, but before it was sent out of the office. The prisoner refused them admittance; and, on their bursting open the door, shot at Banks, and wounded (h) Stockley's case, 1772, Serjeant Forster's MS. 1 East, P. C. c. 5, s. 78, p. 310, 311. The case was so decided without argument. (i) Housin v. Barrow, 6 T. R. 122. And see a case referred to by Lord Kenyon, 6 T. R. 123. (j) Stevenson's case, 19 St. Tr. 846. him severely. Upon an indictment for wilfully shooting, upon the 43 Geo. 3, c. 58, objection was taken that the warrant gave Banks and Powell no authority, because their names were inserted after it was sealed. But the prisoner having been convicted, and the point reserved for the consideration of the judges, all who were present (viz. 11) held that the conviction was right. (k) But where a magistrate who kept by him a number of blank warrants ready signed, on being applied to, filled up one of them, and delivered it to the officer, who, in endeavouring to arrest the party, was killed; it was held that this was murder in the person killing the officer, and he was accordingly executed. (1) It may be proper to remark a circumstance in the preceding case of Stockley, which has been thought to deserve consideration, (m) namely, that he had before deliberately resolved upon shooting Welch in case he offered to arrest him again, which in all probability it might be his duty to do. It certainly resembles a former case, Curtis' case. where, upon some officers breaking open a shop-door to execute an escape warrant, the prisoner, who had previously sworn that the first man that entered should be a dead man, killed one of them immediately by a blow with an axe. A few of the judges to whom this case was referred, were of opinion that this would have been murder, though the warrant had not been legal, and though the officers could not have justified the breaking open the door, upon the grounds of the brutal cruelty of the act, and of the deliberation manifested by the prisoner, who, looking out of a window with the axe in his hand, had sworn, before any attempt to enter the shop, that the first man that did enter should be a dead man. (n) But in Cook's case. another case, prior to either of these, where the cruelty and the deliberation were of a similar kind, the crime was considered as extenuated by the illegality of the officer's proceeding. A bailiff having a warrant to arrest a person upon a capias ad satisfaciendum, came to his house, and gave him notice; upon which the person menaced to shoot him if he did not depart: the bailiff did not depart, but broke open the window to make the arrest, and the person shot him, and killed him. It was holden that this was not murder, because the officer had no right to break the house; but that it was manslaughter, because the party knew the officer to be a bailiff. (0) (k) Rex v. Harris. East. T. 1801. MS. Bayley, J. (1) Per Lord Kenyon, in Rex v. The Inhabitants of Winwick, 8 T. R. 454, who there mentions it as a case determined by the Judges some years before. (m) 1 East, P. C. c. 5, s. 78, p. 311. (n) Curtis's case, 1756. Fost. 135. (0) Cook's case, 1 Hale, 458. Cro. Car. 537, W. Jones, 429. Upon these cases the following very sensible observations are made in Roscoe's Cr. Ev. 707, 708 : These decisions would appear to countenance the position that where an officer attempts to execute an illegal warrant, and is in the first instance resisted with such violence by the party that death ensues, it will amount to manslaughter only. But it should seem that in analogy to all other cases of provocation this position requires some qualification. If it be possible for Patience's case. Upon an indictment for maliciously wounding under the 9 Geo. 4, c. 31, it appeared that a constable having a warrant to apprehend the prisoner, gave it to his son, who went in pursuit of the prisoner in company with his brother; the father stayed behind; they found the prisoner lying under a hedge, and when they first saw him he had a knife in his hand running the blade of it into the ground; he got up from the ground to run away, and the son laid hold of him, and he stabbed the son with the knife; the father was in sight at about a quarter of a mile off. Parke, B., "The arrest was illegal, as the father was too far off to be assisting in it; and there is no evidence that the prisoner had prepared the knife beforehand to resist illegal violence. If a person receives illegal violence, and he resists that violence with anything he happens to have in his hand, and death ensues, that would be manslaughter. If the prisoner had taken charge of murder. So also where, as in Stockley's case, supra, note (h), and Curtis's case, supra, note (n), the party appears to have acted from motives of express malice, there seems to be no reason for withdrawing such cases from the operation of the general rule, that provocation will not justify the party killing, or prevent his offence from amounting to murder, where it is proved that he acted at the time from express malice. And of this opinion appears to be Mr. East, who says, it may be worthy of consideration whether the illegality of an arrest does not place the officer attempting it exactly on the same footing as any other wrong doer." 1 East, P. C. 328. It may be remarked that this question is fully decided in the Scotch law, the rule being as follows:-In resisting irregular or defective warrants, or warrants executed in an irregular way, or upon the wrong person, it is murder if death ensue to the officer by the assumption of lethal weapons, where no great personal violence has been sustained. Alison's Princ. Cr. Law of Scotl. 25. If, says Baron Hume, instead of submitting for the time, and looking for redress to the law, he shall take advantage of the mistake to stab or shoot the officer, when no great struggle has yet ensued, and no previous harm of body has been sustained, certainly he cannot be found guilty of any lower crime than murder. I Hume, 250. The distinction appears to be, says Mr. Alison, that the Scotch law reprobates the immediate assumption of lethal weapons in resisting an illegal war rant, and will hold it as murder if death ensue by such immediate use of them, the more especially if the informality or error was not known to the party resisting; whereas the English practice makes such allowance for the irritation consequent upon the irregular interference with liberty, that it accounts death inflicted under such cir. cumstances as manslaughter only." Alison's Princ. Cr. Law of Scotland, 28. In such cases it seems to me that it may be well deserving of consideration whether the first inquiry ought not to be whether or no the act done was caused by the illegal apprehension. If the act done arose from other causes, and had no reference to the illegal arrest, as if it arose from previous ill will, it should seem that the illegality of the arrest ought not to be taken into consideration, because it was not the cause of the act, and therefore could not be truly said to have afforded any provocation for it. Such a case would be like the cases where blows have been given by the deceased, but the fatal blow has been inflicted in consequence of previous ill will. (See Rex v. Thomas, ante, p. 522; Reg. v. Kirkham, ante, p. 523.) From the observations of Mr. B. Parke, in Rex v. Patience, infra, note (p), I infer that the very learned Baron was of opinion that if there were previous malice, the illegal arrest would not reduce the crime to manslaughter; because the previous malice was the cause of the act and not the illegality of the arrest. In such an inquiry the fact that the prisoner was ignorant at the time that the arrest was illegal would be most material, because it would almost conclusively show that the act did not arise from that cause. It should also be observed, that if "one has a legal and illegal warrant, and arrests by virtue of the illegal warrant, yet he may justify by virtue of the legal one; for it is not what he declares, but the authority which he has is his justification," per Holt, C. J. Greenville. The College of Physicians, 12 Mod. 386, and see Crowther v. Ramsbottom, 7 T. R. 654; The Governors of Bristol Poor v. Wait, 1 Ad. & E. 264; so it might be contended that if the party apprehended had committed a felony, as he might be apprehended by any individual without a warrant, the apprehension by a constable under a defective warrant would not be illegal, as he might justify the arrest as a private individual. See per Tindal, C. J., in Hoye v. Bush, 1 M. & Gr. 775, ante, p. 619, note (g). So also as a constable has authority to apprehend any person within his district, whom he has reasonable ground to suspect of having committed a felony (Beckwith v. Philby, ante, p. 595, note (i)); in such a case also it might be contended that he might justify the arrest, although in fact he did apprehend under an illegal warrant, C. S. G. |