32
THE NEW ZEALAND GAZETTE.
[No. 3

before such Justice as shall be present at the time and place when and where the party is required to appear; and if the party does not then and there appear the Justice shall require a record of such recognizance to be drawn up and signed by such constable; and if the party not appearing shall apply by any person on his behalf to postpone the hearing of the charge, and the Justice shall consent thereto, such Justice shall be at liberty to enlarge the recognizance to such further time as he shall appoint; and, on the party appearing at the time and place fixed, either originally or by enlargement or postponement, to answer the charge brought against him, the recognizance shall be void; but if the party shall not so appear the Justice shall certify on the back of the recognizance the non-performance of the condition thereof. Every recognizance taken by a constable as hereinbefore provided shall be of equal obligation on the parties entering into the same, and liable to the same proceedings for the estreating thereof, as if the same had been taken before a Justice of the Peace. (Sections 222 to 226, “Justices of the Peace Act, 1882.”)

SUSPECTED PERSON.

19. If, after sunset and before sunrise, the constable shall see any one carrying a bundle of goods which he suspects were stolen, he should stop and examine the person, and may detain him; also (by section 38 “Pawnbrokers’ Act, 1868”) when any property is offered to be pawned, or pledged to any pawnbroker, if he suspects that an offence has been committed with respect to such property, he is authorized to apprehend and forthwith take before a Justice the party offering the same, together with such property, to be dealt with according to law.

In such cases of suspicion the constable should be careful to judge from circumstances (such as the appearance and manner of the party, his account of himself, and the like) whether he really has stolen goods in his possession before he takes him into custody.

ARREST: BREAKING DOORS.

20. The constable must make every exertion to effect the arrest, and the law gives him abundant power for the purpose. If the felon or party accused of felony flee he may be immediately followed wherever he goes; and if he takes refuge in a house the constable may break open the doors* if necessary to get in, first stating who he his and his business; but the breaking open outer doors is so dangerous a proceeding that the constable should never resort to it except in extreme cases, and when an immediate arrest is necessary. (See Judge Johnston’s “Justices of the Peace,” section 1192 (2).)

21. There are some cases in which a constable may, and ought to break into a house, although no felony has been committed, when the necessity of the case will not admit of delay, as when persons are fighting furiously in a house, or when a house has been entered by others with a felonious intent, and a felony will probably be committed unless the constable interfere, and there is no other means of entering.† Except in such cases it is better, in general, that the constable should wait till he has a warrant from a Magistrate for the purpose.

• In no case is a constable justified in breaking an outward door or window unless a previous notification has been given, and a demand of entrance made and not complied with. (Foster, 320.) Where a felony has been actually committed, or a dangerous wound given, a constable can break an entrance door to arrest the offender without any warrant; but in cases of misdemeanour and breaches of the peace a warrant is required. It likewise seems to be the better opinion that mere suspicion of a felony will not justify him in proceeding to this extremity unless he have a warrant. (Foster, 320, cited Roskoe, 763.) In civil suits an officer cannot justify the breaking open an outward door or window to execute process.

† If there be an affray in a house, and manslaughter or bloodshed is likely to ensue, a constable, having notice of it, and demanding entrance and being refused, and the affray continuing, may break open the doors to keep the peace.

PRISONER ESCAPING.

22. If a prisoner escape, he may be retaken, and in immediate pursuit the constable may follow him into any place or any house; and if the escaped prisoner take refuge in a house, the doors may be broken open after demand of admission, and after notification by the constable of his office and object in coming.

23. If a constable finds his exertions inefficient to effect the arrest, he ought to require all persons present to assist him, and they are bound to do so, on his stating that he is a constable and has lawful authority for what he is doing.

BREACHES OF PEACE.

24. In cases of actual breaches of the peace, as riots, affrays, assaults, and the like, committed within the view of the constable, he should immediately interfere (first giving public notice of his office, if he be not already known), separate the combatants, and prevent others from joining in the affray. If the riot, &c., be of a serious nature, or if the offenders do not immediately desist, he should take them into custody, securing also the principal instigators of the tumult, and doing everything in his power to restore quiet. He has no power to arrest when the affray, &c., is over, and there is no fear of its renewal.

25. A constable may take into custody, without a warrant, any person who shall be charged by any other person with committing an aggravated assault in every case in which such constable shall have good reason to believe that such assault has been committed, although not within view of such constable, and that, by reason of the recent commission of the offence, a warrant could not have been obtained for the apprehension of the offender. (See section 36, “Police Offences Act, 1884.”)

26. When the offence has not yet been committed, but when a breach of the peace is likely to take place, as when persons are openly preparing to fight, the constable should desire them to desist, and if they do not do so should take the parties concerned into custody; but if they flee into a house and are making preparations to fight within, the constable should enter to prevent them, and likewise take the parties into custody; and should the doors be closed, he may break them open if admission is refused, after giving notice of his office and his object in entering. A constable should always be guided by the character of the parties; and it is often better in cases not requiring immediate apprehension, and when the offender can easily be found, to obtain a warrant, even though he might arrest without a warrant.*

27. If a party threaten another with immediate personal violence, or offer to strike, the constable should interfere and prevent a breach of the peace; if one draw a weapon upon another, attempting to strike, the constable should take him into custody. If persons be merely quarrelling or insulting each other by words, the constable has no right to take them into custody, but should be ready to prevent a breach of the peace.†

28. A Justice of the Peace may, by word of mouth, command any constable or any other person to arrest another who shall be guilty of any felony or actual breach of the peace in his presence, and such command is a good warrant without writing, and must be obeyed accordingly.

RESISTING POLICE.

29. A constable may arrest any one assaulting or obstructing him in the execution of his duty, or any one

• Upon any information being obtained that persons are training or preparing to fight, or are accessories to an intended prize-fight, the facts should be reported without delay to a superior officer or Magistrate, in order that steps may be taken to prevent the fight.

† By “The Police Offences Act, 1884” (Section 35), a person found disturbing the public peace can be arrested,