An appeal (a) lies to the circuit court from all final decrees where the matter in dispute exceeds fifty dollars. As to the libellant, this amount is determined by the claim in the libel; as to the defendant, by the amount of the decree. In either case, it is exclusive of costs; and when there are several claimants, it is the claim of each separately, and not the aggregate. The appeal, which is in writing, must state specifically how much of the case is appealed, and only so much goes up; but as each party aggrieved may appeal, there may be several appeals from the same decree. The time within which an appeal must be taken is determined either by the general rules of the court or by a special order in the particular case. But it must be to the next term of the circuit court, and execution will be stayed to allow time for perfecting the appeal, if written notice of intention be given. On the hearing above no new cause of action can be introduced, but new allegations and proofs are admitted. (b) After the appeal, so much of the case as is appealed, is wholly in the circuit court, and does not go back to the district court at all for any purpose. The effect is to suspend the execution below of so much of the decree as is appealed, and leave the residue for execution there. The stipulation is similar to the appeal bond in chancery.

From the final decree in the circuit court, an appeal lies to the supreme court, in all cases where the matter in dispute exceeds two thousand dollars, and no allowance of the appeal is necessary. The supreme court does not execute its decree, but remands it to the circuit court for execution. The security must be approved by the circuit judge, and remains in his court. The rules furnish minute directions for perfecting appeals.

LECTURE XL.

CRIMINAL PROCEEDINGS. (c)

§ 235. Preliminary Considerations. We come now to the last division of the law of procedure, which embraces the course of proceeding in criminal prosecutions, from the commencement to the conclusion. The general nature of crimes and punishments, and the offences which are punishable by the State and federal laws, have already been considered. The constitutional limitations of

(a) The 53d of the supreme court rules, adopted December term, 1854, provides how much of the record shall be certified upon appeal.

(b) Rice v. Minnesota and Northwestern R. R. Co. 21 How. 82.

(c) See Archbold's Criminal Practice; Starkie's Criminal Practice; Davis's Precedents; and the works of Chitty and Russell. See ante, citations on p 525. Bishop on the Law of Criminal Procedure.

the power of punishment have also been discussed, as immediately connected with personal liberty. It only remains, then, to describe the mode in which criminal justice is administered; and here the distribution of criminal jurisdiction among the federal and State courts would be the first topic; but this has been sufficiently explained in the lecture upon the judicial department. We are, therefore, prepared to turn at once to the commencement of criminal proceedings: but first, I would observe, that although the outlines of these proceedings are marked out by the federal and State constitutions, and the statutes pursuant thereto, (a) yet the terms usually employed in these provisions, and the forms required by them, are chiefly taken from the common law; and their meaning and nature are to be sought in the treatises on criminal law, before referred to. It follows, that criminal proceedings must be much the same in all courts where the common law prevails; and, accordingly, I shall confine myself chiefly to a description of them in this State. Criminal proceedings are much less complicated than civil, as will be evinced by what follows. Meantime, there are some preliminary matters which require a brief notice. When an offence has been committed, the first step is to secure the offender; and to this end certain officers are designated to be conservators of the peace. By the constitution, judges of the supreme court are conservators of the peace throughout the State; president judges of the common pleas, throughout their circuits; and associate judges of the common pleas, throughout their counties. By statute, it is made the duty of sheriffs to preserve the public peace; to cause all persons guilty of breaking the same, within their knowledge or view, to enter into recognizance to keep the peace, and to appear and answer in court; and to commit to jail in case of refusal. Coroners have the same power when the office of sheriff is vacant, or the sheriff is himself the offender; with the further power of holding inquests over dead bodies, and arresting persons charged by the jury with being concerned in the death. Also, by statute, justices of the peace are declared to be conservators of the peace throughout their counties; and it is made the duty of constables to apprehend and bring to justice felons and disturbers of the peace; to suppress riots and preserve the peace within their counties; and to pursue fugitive offenders into other counties. From all which it appears that judges, justices, sheriffs, coroners, and constables are made the official guardians and protectors of public tranquillity and private security; but the chief burden, as we shall see, falls upon justices and constables, whose functions are, therefore, of the highest importance to the community. (b)

(a) A code of Criminal Procedure was enacted in Ohio, in 1869 (66 Ohio Laws, 287), the principal alterations introduced by which will be briefly stated in their proper place.

(b) Criminal procedure is concerned only with the punishment of crime, except in the case of binding over to keep the peace, in which a preventive power is exercised. This proceeding consists in bringing the accused before a magistrate, who,

§ 236. Warrant. In general, before an offender can be arrested, or his premises searched, the officer must have an official warrant for that purpose; and we have before considered the constitutional guaranty against unreasonable searches and seizures, which is expressed in these words: "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." For making arrests there are two kinds of warrants, which I will briefly describe.

1. A Capias upon Indictment. What an indictment is will be explained hereafter. If the grand jury happen to be in session, when an offence is committed, or before the offender is apprehended, any person may go before them and testify against him; and if upon such testimony an indictment be found, the prosecuting attorney will take out a capias ad respondendum for his arThis writ may issue in term time or vacation, to any county in the State, commanding the offender to be arrested for trial. If the arrest be made in term time, he is forthwith arraigned. If in vacation, he is either held to bail or committed; all which will be explained hereafter. (a)

A State Warrant. (b) If the offence be committed under such circumstances that it cannot be laid at once before the grand jury,

if after hearing testimony he is of opinion there is just cause for complaint, puts the accused under bond to keep the peace. The proceedings in Ohio are now governed by §§ 1-12 of the Code of Criminal Procedure.

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(a) §§ 57, 101, 102 of the Code of Criminal Procedure now provide that the clerk of the court in such cases shall issue a warrant for the accused. (b) Affidavit. The State of the justices of the peace for said county, personally came sworn according to law, deposeth and saith, that on or about the [here describe the crime committed and the premises to be searched, if such there be], and that one is guilty of the fact charged; and further saith not. Warrant for Arrest. The State of , county of of said county. Whereas complaint has been made before me, justices of the peace for the county aforesaid, upon the oath of late of the county aforesaid, did, on or about the aforesaid [describe the crime]; these are, therefore to command you to take the said, if he be found in your county, or if he shall have fled, to pursue him into any other county within the State, and take and safely keep him, so that you have his body before me or some other justice of the peace forthwith, to answer the said complaint, and be further dealt with according to law. §§ 21-29 of the Code of Criminal Procedure provide for the issuing of warrants before indictment. Search Warrant. Whereas it appears to me -, one of the justices of the peace for the county aforesaid, that the following goods and chattels, to wit [here describe them], have been, within ninety days past, by some person or persons, feloniously taken, stolen, and carried away from the premises of — , of said county, and that the said doth on oath declare that he verily believes that the said goods and chattels are concealed in the [describe the place of concealment of one of, in said county; these are, therefore, to command you, with the necessary and proper assistance, to enter, in the daytime, into the said [describe the place as before] of the said and there diligently search for the said goods and chattels; and if the same or any part thereof be found upon such search, that you bring the goods so found, and also the body of the said -, forthwith before me, or some other justice of the peace of said county, to be disposed of and dealt with according to law.

as is most frequently the case, the course is to procure a warrant, commonly called a State warrant, commanding the arrest of the offender, and, if need be, a search of any suspected premises. The form of these warrants is fixed by the statute. Should there be occasion, they may doubtless be issued by either of the courts in term time, or either of the judges in vacation, in which case they would be called bench warrants; but they are usually issued by justices of the peace; and in compliance with the constitutional declaration before referred to, an affidavit must first be made, as the predicate of the warrant, that an offence has been committed, and that the deponent either knows or believes that the person named did commit it. Without such a specific affidavit the warrant cannot be issued; and the warrant itself must be equally specific in describing the person and the offence; for human liberty is too dear to be jeoparded upon uncertainties; and the same remarks apply to search warrants. In both of these cases, then, an offence has been already committed, of which oath or affirmation has been made, before the issuing of the capias or warrant. But it being far better to prevent the commission of an offence, if possible, than to wait until it has been committed, and then punish it, provision is made that if any person has just cause to fear, and does fear, that another will kill, wound, beat, or abuse him, or those immediately connected with him, or will burn his buildings or destroy his property, and such person will make affidavit to this effect, a warrant shall thereupon be issued for the arrest of the person complained of; and if, upon investigation, the magistrate shall be of opinion that there was just cause for fear, he will order the accused to enter into a recognizance to appear and answer at the next term of the court, and, in the mean time, to keep the peace; and in default of such recognizance, will commit him to jail. This is what is meant by being put under bonds for good behavior.

§ 237. Arrest and Examination. (a) An arrest on a criminal charge is defined to be the apprehending or restraining of a person, in order that he may be forthcoming to answer the charge of an alleged or suspected crime. The act of privilege from arrest, before described, extends to civil arrests only, as we have seen, and not to criminal arrests; which, therefore, may be made upon all persons, and at all times and places. Crime has no asylum but in absolute concealment. Even a man's house is not his castle against criminal arrests, though it is against civil. In general, as we have just seen, the arrest is made by an officer, under the authority of a capias or warrant, predicated upon the affidavit of some credible person; but there is no question that arrests may be safely made without either. All persons, whether officers or not, must necessarily have the power to arrest offenders committing the offence in their presence: and it

(a) See 4 Black. Com. 292; Davis v. Russell, 5 Bing. 354; Cowles v. Dunbar, 12 Com. Law Rep. 265; s. c. 2 Car. & P. 565; Wright v. Court, 10 Com. Law Rep. 412; s. c. 4 B. & C. 596; Lawrence v. Hedger, 3 Taunton, 14.

is their duty so to do; for when they see the act perpetrated, they are in no danger from an act for false imprisonment or malicious prosecution, which is the only hazard they could incur; and it would be wrong to give such offenders a chance of escaping by waiting to take out a warrant. (a) The English, and probably the American doctrine, is this: "Conservators of the peace may break open doors to make such arrest; and may command other persons by word only, to assist them, who will be culpable if they refuse so to do; also, if they have good reason to believe that an offence has been committed, though not in their presence, and have strong grounds to suspect the individual, they may safely cause the arrest to be made. But a private person would not be safe in making the arrest in the latter case; because he would not have the excuse of official duty. The prudent course would be to notify an officer, or go at once to a magistrate, and make the affidavit to obtain a warrant; though if such private person were certain that an offence had been committed, and had reasonable ground for suspicion as to the offender, he might be safe in seizing him without a warrant, for the purpose of carrying him before a magistrate; because, if the suspicion should prove false, probable cause would be a complete defence, and even the good intention would be a shield against heavy damages. (b) So, in regard to arrests to prevent the commission of crime; it is clear that any person seeing another about to commit a crime, may interfere to prevent him; and, if necessary, may detain him, until it may be reasonably presumed that he has altered his mind; but where one thus intervenes to prevent fighting, prudence requires him to declare his purpose beforehand; for, otherwise, he may be confounded with the offender without the means of proving his innocence. Thus, with regard to criminal arrests, the law is wisely framed with a view to protect both parties, those who make, and those who suffer, such arrests.

The accused being thus arrested, the next thing is the examination before the magistrate. This must take place immediately, unless some material witness be wanting, or there be some other urgent reason for postponing it; in which case our statute allows the accused to be placed in jail for safe keeping; but not for a period exceeding thirty-six hours, (c) lest the power of imprisonment without examination might be abused. In general, this examination is only a preliminary step, for the purpose of ascertaining

(a) Derecourt v. Corbishley, 5 El. & Black. 188; 32 Eng. L. & Eq. 186. A municipal corporation may authorize an arrest without a warrant in certain cases, for violation of a city ordinance. White v. Kent, 11 Ohio State, 550.

(b) The Code of Criminal Procedure provides (§ 21), that it shall be the duty of officers to arrest all persons found violating the laws without warrant, and also, § 22, that any person not an officer may, without a warrant, arrest any person, if a petit larceny or felony has been committed, and there is reasonable ground to believe the person arrested guilty, and may detain him until a legal warrant can be obtained. (c) This period is now four days (Code of Criminal Procedure), and the confinement may be in some other place than the jail if the magistrate so direct. § 31. §§ 30-49 now regulate this procedure.