Commonwealth v. Irwin , 83 Mass. 587 ( 1861 )

Metcalf, J.

The court are of opinion that all the instructions given to the jury were as favorable to the defendant as the law would authorize.

As the officer had a warrant for the arrest of the person for whom he searched in the defendant’s house, it seems from the authorities cited in support of the instructions, that he would have been justified even in breaking open the door of the house, after demanding admittance and being refused, and in searching therein for the person named in the warrant, although he was not there. Foster’s Crown Law, 321. 1 East P. C. 323, 324. 1 Deacon’s Crim. Law, 52. 1 Russ, on Crimes, (7th Amer. ed.) 628. According to these books, an exception, in favor of an officer holding a warrant against an alleged offender, is made to the rule stated in 2 Hale P. C. 103, 117, that an officer, who breaks into another’s house to arrest a felon, does it at his peril, and is justifiable, if the felon be there, and not justifiable, if he be not there. But we think that this exception should be qualified, as it was in the judge’s instructions, by the proviso that the officer must have reasonable cause to believe that the person against whom he holds a warrant is in the bouse; and when thus qualified, we deem it a sound rule of law. In the case at bar, however, the officer had no occasion to enter the defendant’s house forcibly, but was admitted immediately on his knocking at the outer door. And we must infer from the verdict which was returned under the instructions given, that the jury found that the officer had reasonable cause to believe, and in fact did believe, that the person, against whom he held a warrant, was in the house, and that he did no more in the house than he lawfully might do.

The instructions as to the showing of the warrant to the defendant, by the officer, substantially conformed to the law. Law of Arrests, 176, 189. 2 Hawk. c. 13, § 28. Arnold v. Steeves, 10 Wend. 514. Bellows v. Shannon, 2 Hill’s (N. Y.) Rep. 86. Exceptions overruled.