PENNSYLVANIA
BeEEPARIMENT OF FORESTRY.

Piso bE UG ThOnNs

TO

PORES !T...WARDENS,

By I. C. WILLIAMS, Esq.,
of the Department of Forestry.

Published by direction of the Commtssioner of
Forestry.

WM. STANLEY RAY,
STATE PRINTER OF PENNSYLVANIA,
1903.

DD. Of D.
JAN 16 915

(2)

“fe 7
j

~

<-C,;

Pennsylvania Department of Forestry,
Harrisburg, Pa., August 1, 1903.

Sir: I have the honor to submit herewith for
publication and distribution among those en-
titled thereto, what I have called ‘Instruc-
tions to Forest Wardens,” prepared under your
direction and at your request. It is intended
to give those persons employed as care-takers,
or wardens, upon the State lands held for For-
estry Reservation purposes, such information
as they will need with respect to the duties,
rights, and liabilities imposed and conferred
upon them by reason of the passage by the
Legislature of the Act of March 11, 1903, P.
es 23.

No attempt whatever at technical discussion
has been made. The matter has been con-
densed to the smallest compass thought ad-
visable, with an endeavor to present it in plain
narrative, easily comprehended by those not
familiar with legal language or forms. It of
necessity presents but a constricted view of
the law relating to constables.

Very respectfully,
I, C. WILLIAMS.
Bone. ROTHROCK, M.D.

Commissioner of Forestry.

(3)

2)

Instructions to Forest Wardens, who under the
the Act of March 11, 1903, P. L. 25, are
invested with Constabulary Powers.

Among the laws enacted by the General As-
sembly for the creation and protection of the
Forest Reservations, the act of March 11, 19038
is important. The text of the ac‘ in full is
as follows:

AN ACT

Conferring upon persons employed, under existing laws, by
the Commissioner of Forestry, for the protection of State
Forestry Reservations, after taking the proper oath of
office, the same powers as are by law conferred upon con-
stables and other peace officers; to arrest, without first
procuring a warrant, persons reasonably suspected by
them of offending against the laws protecting timber
lands; also, conferring upon them similar powers for the
enforcement of the laws and rules and regulations for the
protection of the State Forestry Reservations, and for
the protection of the game and fish contained therein;
and further, conferring upon them power to convey said
offenders into the proper legal custody, for punishment;
this act to apply only to offences committed upon said
reservations and lands adjacent thereto.

Section 1. Be it enacted, &c., That the per-
sons employed under existing laws, by the
Commissioner of Forestry, for the protection
of State Forestry Reservations, shall, after
taking the proper official oath before the clerk
of the court of quarter sessions of any county
of the Commonwealth, be vested with the
same powers as are by existing laws conferred

(5)

6

upon constables and other peace officers: to
arrest on view, without first procuring a war-
rant therefor, persons detected by them in the
act of trespassing upon any forest or timber
land within this Commonwealth, under such
circumstances as to warrant the reasonable
suspicion that such person or persons have
committed, are committing, or are about to
commit, some offence or offences against any
of the laws now enacted or hereafter to be
enacted for the protection of forests and tim-
ber lands. Such officers shall likewise be
vested with similar powers of arrest, in the
case of offences against the laws or the rules
and regulations enacted or to be enacted for
the protection of the State Forestry Reserva-
tions, or for the protection of the fish and
game contained therein: Provided, That the
above mentioned rules and regulations shall
have been previously conspicuously posted
upon the reservation. Said officers shall fur-
ther be empowered, and it shall be their duty,
immediately upon any such arrest, to take and
convey the offender or offenders before a jus-
tice of the peace or other magistrate having
jurisdiction, for hearing and trial, or other due
process of law: Provided further, That this
act shall extend only to the case of offences
committed upon said Forestry Reservations
and lands adjacent thereto; and the powers
herein conferred upon said officers shall not
be exercised beyond the limits thereof, except
where necessary for the purpose of pursuing

7

and arresting such offenders, or of conveying
them into the proper legal custody, for punish-
ment, as aforesaid.

Section 2. All acts or parts of acts inconsist-
ent herewith be and the same are hereby re-
pealed.

Approved—The 11th day of March, A. D.
1903.

SAML. W. PENNYPACKER.

It will be observed that this act confers
large discretionary powers as well as import-
ant duties upon persons employed by the State
Forestry Reservation Commission, in the care
of State lands held for Forest Reservation pur-
poses. These persons, while not so designated
by the act, are commonly known as Forest
Wardens.

Before proceeding to a discussion of the
duties and liabilities of Forest Wardens under
this law, it may be desirable to consider in a
brief manner the office of constable in general,
his duties, his qualifications, and his liabilities
under existing laws.

The office of constable is an ancient one. His
title is derived from the fact that originally
he was Comes stabuli, count of the stable,
chief of the horse, of the ancient military
barons and war lords of Europe. The con-

8

stable of France was a high officer of the
crown, and the Lord High Constable of Eng-
land was the commander-in-chief of the army,
the keeper of the peace of the nation. ‘He was
also invested with judicial power and regu-
larly held his court for the cognizance of such
matters as were within his jurisdiction.

The constable of to-day is still a conserva:
tor of the peace within his county. He is the
executive officer of a township, a ward, or a
borough, but may _ exercise his authority
throughout a county. He is required to exe-
cute civil process and every precept directed
to him. <A constable formerly held his office
for a year, but now for three years. He must
give a bond for not less than five hundred dol-
lars nor for more than three thousand dollars,
unless he is a free holder with unincumbered
property of the value of one thousand dollars.
The court of quarter sessions of any county
may remove a constable from office if it appear
upon petition that he is unfit and incompetent
to discharge his official duties, or where he
shall not have given the security required. He
may command others to assist him in making
arrests or executing writs, where assistance is
needed. |

In civil process, the service of a summons is

9

the most common duty of a constable. A sum-
mons is a writ signed, dated, and issued by
a justice of the peace, directed to a constable,
commanding him to give notice to a person
named therein to appear at a certain time and —
place to answer a complaint. A summons is
the method of beginning a civil suit or action
at law, and all natural persons, except those
exempt, and corporations may be made de-
fendants and served therewith. To every sum-
mons there must be a return. This is the re-
port of the constable as to the manner in which
he has executed the writ. It must show the
date and manner of service, be in writing, and
be signed by him.

Certain actions are of the nature of both civil
and criminal suits and are begun by capzas
instead of summons. In these cases the body
of the defendant is taken, that is, he is placed
under arrest. The person arrested must, with-
out unnecessary delay, be taken before a mag-
istrate for hearing, to be followed by a hold-
ing to bail, a commitment, or a discharge. The
service of a summons or of a capias on Sunday
is unlawful and void. The constable cannot
break an outer door to make service of these
writs at any time.

Certain persons are exempt from service of

10

process by reason of their position. They are
ambassadors and public ministers of foreign
countries and their employees; members of
Congress and State legislators while in atten-
dance upon their public duties; electors, that
is, voters, attending elections, going to or re-
turning therefrom; soldiers and militia men
during term of service, unless for a debt in
excess of $20.00 contracted before enlistment;
parties to a suit, counsel and. witnesses in at-
tendance at court, or going to or returning
therefrom; jurors, attorneys and agents in at-
tendance upon court; and freeholders having
unincumbered real estate to the value of two
hundred and fifty dollars, are privileged from
arrest.

A constable who has made an arrest on
capias may take a bail bond for the appear-
ance of the defendant, but he must take suffi-
cient security else he will be liable to the
plaintiff. In executing civil process a consta-
ble will have other duties to perform. They
may consist of making an ordinary levy follow-
ing a judgment obtained upon a summons, and
a sale thereunder; making an attachment exe-
cution; the attachment of fraudulent debtors;
against non-resident debtors; and domestic at-
tachment; serving distress warrants in land-

11

lord and tenant cases; executing a writ of pos-
session; making returns to court of unlicensed
places where liquors are sold; the illegal sale
of liquors by licensed persons; the sale or giv-
ing away of liquors on election day, or near
militia encampments; attendance on election
and the duties incident thereto.

A Forest Warden would probably never be
called upon to exercise any of these duties and
for that reason no further comment thereon is
necessary. .

In criminal cases, the duty of a constable is
especially to preserve the peace, and make ar-
rests for violation or breach thereof. He has
power to imprison and break outer doors when
necessary to prevent homicide, riot, or a dan-
gerous breach of the peace. Every person is
in morals bound to take notice of violations
of law and make complaints thereon; but a
constable is legally required to prevent crime
and bring the perpetrators to justice.

An arrest is “the apprehending or restrain-
ing of one’s person, in order to be forthcoming
to answer an alleged or suspected crime.” It
is a literal seizing of the body and the holding
of it in custody.

In making an arrest, more than mere words
is necessary. It is not sufficient to say, “I

eo

12

arrest you,” or “you are my prisoner,” or “I
have a warrant for your arrest.” But if the
person so addressed submits and goes with the
officer, the arrest is complete. If the defend-
ant run away and escape without being
touched by the constable, there is no arrest.
The constable must, therefore, exercise some
corporal taking or restraint. A. slight re-
straint, a mere touching, is held to be suffi-
cient. The constable should inform the person
whom he takes that he arrests him; but when
the arrest is made during the actual commis-
sion of an offense, this is not necessary. A
constable may use violence in making an arrest
but only such violence as is necessary. If
the officer in attempting to arrest is resisted
by the defendant, he may and must use all the
force necessary to subdue his prisoner. If the
offense committed or about to be committed
is a felony, and the prisoner resists and es-
capes, the officer, after informing him of his
order and intention, may shoot to compel him
to stop. If the offense involved is a misde-
meanor only, he has no right to shoot a person
evading arrest.

Prisoners should be treated fairly and kindly
after arrest, and only as much violence used as
is necessary to restrain. It is usual and pro-

13

per to make a search of the person in order
to find such evidences of guilt as may be sus-
pected. Property thus taken from a prisoner
must be turned over to the magistrate to await
the final outcome of the case.

Since the distinction between felonies and
misdemeanors affects the officer’s power and
manner of making arrests, every constable
should clearly understand the difference be-
tween them. By felonies we understand those
heinous and more serious crimes as contra-dis-
tinguished from the milder and more trivial
kinds, which are called misdemeanors. Ori-
ginally felonies were those offenses which were
punished capitally or by tmprisonment, and
were accompanied by forfeiture of lands and
goods; all others were misdemeanors. Ori-
ginally, therefore, it was the kind of punish-
ment meted out for an offense which deter-
mined whether it fell within one or the other
class. This distinction has disappeared in
America, and crimes are by express statutory
enactment declared to be either felonies or
misdemeanors, and the punishment prescribed
thereby. No one would undertake to describe
a felony or a misdemeanor by exact definition.
They are known as such only by statutory
enactment and simple enumeration.

14

The following are felonies: Murder, robbery,
larceny, rape, burglary, arson, sodomy, bug-
gery, counterfeiting, passing counterfeit money
knowingly, assault and battery with intent to
kill, or intent to kill by administering poison,
or by stabbing, or other means; shooting or at-
tempting to shoot a person; stabbing with in-
tent to maim or disfigure; explosion of gun-
powder or other explosive with intent to harm;
or sending any such explosive or other dan-
gerous thing, or throwing at a person any acid
or corrosive substance, with like intent; ad-
ministering chloroform or stupefying drugs in
an attempt to commit a felony; precuring an
abortion; breaking open by day or by night,
with intent to commit a felony, any house,
barn, stable, shop, etc.; attempting to wreck
a railroad train, or to blow up a house with in-
tent to destroy it or harm persons within.

It will be noticed that the intent is the de-
termining feature of many of the above fel-
onies.. No one can be supposed to be able to
read the mind of another, to discover his in-
tent; but it is a safe rule to follow that a per-
son intends the consequences of his act, and
when a constable has reasonable ground to sus-
pect the intent of an act and acts accordingly,
he will be protected, though mistaken. The

Ea eee ae iS Se lier i eee aaa en a

15

reasonable ground of suspicion should be clear.

The following acts are misdemeanors: The
adulteration of goods, candy, liquors, etc., as-
sault and battery with or without a weapon,
bribery, corruptly influencing voters, selling
votes, selling cigarettes to persons under six-
teen years of age, compounding crimes, carry-
ing concealed deadly weapons, conspiracy,
cruelty to animals, disorderly conduct, keep-
ing disorderly houses, disturbing public meet-
ings, drunkenness, duelling, embezzlement,
corruptly influencing jurors, escape from cus-
tody, aiding prisoners to escape, voluntarily
or negligently permitting them to escape,
carrying dangerous detonating explosives
upon public conveyances, selling firearms to
persons under sixteen years of age, the manu-
facture and sale of toy pistols, extortion, false
pretense, forgery, fortune telling, gambling,
fraudulent insolvency, lewdness, libels, con-
ducting lotteries, malicious mischief and tres-
pass, mayhem, dissemination of obscene litera-
ture, maintaining a nuisance, running an
opium joint, perjury, prize fighting, profanity,
riot, seduction, sending threatening letters, etc.

The offenses enumerated in the various acts
of Assembly for the protection of forests and
woodlands, and of which the forest wardens

16

have special cognizance by reason of the act
of March 11, 1903, hereinbefore cited, are all
misdemeanors. |

Arrests are made in two ways, either with
or without a warrant. A warrant is a writ, or
an authority in writing, issued by a justice of
the peace usually, directing and commanding
a constable to take the body of the person
named therein and bring him before the justice
to answer a charge against him. The warrant
should give the name and surname of the per-
son to be arrested, or such description as will
enable the officer to identify him; it should
state the offense committed and be signed by
the person issuing it. When executed, the
warrant should be returned to the justice show-
ing the manner of execution. When a consta-
ble receives a warrant he should proceed to
execute it aS soon as convenient and with rea-
sonable secrecy. If he refuse to execute it,
he is guilty of a misdemeanor. Where the
official character of the officer is known to the
person arrested, the warrant need not be
shown nor need he give notice of his office, but
he should state the reason of the arrest. A
safe course to follow is to show the warrant
if demanded. When arresting a stranger, the
constable should either show his warrant or

B07

give notice of his legal authority. A consta-
ble should never part with his warrant. If the
person inspecting it keep it, the officer may use
as much force as is necessary to retake it. A
constable may arrest without a warrant any
one attempting to commit a felony, or on a
reasonable suspicion that a felony has been
committed. He may likewise arrest without
warrant for breach of the peace committed in
his presence; otherwise a warrant must be
procured, unless the breach of the peace was
committed with intent to commit a felony.

A constable has no right to break open an
outer door to execute civil process. Having
a warrant for an arrest on the charge of tre-
son, felony or breach of the peace he may break
open an outer door to execute it. . He has the
same right to break open a door to arrest with-
out a warrant, where the arrest is made on his
own authority, that he has with a warrant.
He should however demand admittance before
breaking, as a matter of precaution.

Having made an arrest, a constable must
conduct his prisoner before a magistrate for
a hearing. The time within which this must
be done is not governed by any precise rule.
It has been decided that he cannot hold him
three days while he is collecting evidence. If

18

the arrest is made at night, the hearing should
be had the next day. If during the day, it
should be held that day if the justice can be
found before night. In the meantime the con-
stable must keep his prisoner safely. He may
confine him in a house, a lockup, or a jail, if
one is convenient. If the person arrested be
sick, the taking before the justice may be de-
layed until such time as he may be safely re-
moved. <A prisoner is in the custody of the ©
constable until his hearing is concluded.

A warrant of arrest may be executed any-
where within the Commonwealth and the offqn-
der carried before the justice or other officer is-
suing the warrant. When an arrest is made
without a warrant and the prisoner carried be-
fore the justice, the constable should then
make an information giving the reason of the
arrest, unless the prisoner waive a hearing and
give bail for court.

The foregoing discussion covers in part only
the duties of constables, but is believed to be
sufficient for the purposes here intended. In
case of doubt how to act, a warden will com-
municate at once with this Department.

It will be noticed that under the act of March
11, 1903, the duties of constables so conferred
upon wardens are to be exercised only upon

19

the State Forestry Reservations or upon the
adjacent or immediately adjoining lands. Such
violations of law as will most probably come
under their immediate official cognizance will
be those having to do with trespassing and the
inflicting of damage to timber. Under the
statutes, these are wilfully setting on fire any
woods, lands, or marshes belonging to the Com-
monwealth, cutting any timber therefrom,
cutting or removing boundary trees and land
marks, kindling fire on adjacent lands so as
to communicate fire to State lands, cutting
bark from, burning, or otherwise injuring
trees, carrying any lighted candle, lamp, or
torch, or other open fire into a forest, setting
off fireworks within a forest; or any other act
not herein specifically mentioned which will
cause damage to forest lands or timber be-
longing to the Commonwealth.

Before proceeding to exercise his said office,
a warden must go before the clerk of the court
of quarter sessions of the proper county and
take the official oath such as is taken by all
constables. He is then invested with full au-
thority under the act, so long as he remains in
the employ of the Department of Forestry upon
the State lands.

20

The act provides that arrests may be made
in two classes of cases:

1. For those acts prohibited by existing laws
now in force or hereafter to be enacted for the
protection of forests and timber lands.

2. For violations of the rules and regulations
made for the protection of the Reservations,
or of the fish and game contained therein.

In the first case, arrests may be made imme-
diately after taking the oath; in the second, the
rules and regulations must have been pre-
viously conspicuously posted upon the Reserva-
tions. The act expressly provides that ar-
rests shall be made for offenses committed
upon the Reservations or upon Jands adjacent;
and that the power of arrest on view without
warrant shall not be exercised beyond these
limits, except for the pursuit of offenders and
the taking of them after arrest into proper
legal custody. If an offender be caught in
the act, he may be arrested then and there.
lf the indentity of the warden is not known to
the person arrested, it should be declared and
the official badge exhibited. It is probable
that occasionally felonies and other misde-
meanors may be commited upon the Forest
Reservations. A warden will in such cases
be governed by what has been stated above

21

with respect to constables generally. <A rea-
sonable suspicion on the part of the warden
that a trespasser is about to commit or has
committed a violation of the law, without see-
ing him in the act, ,will entitle the officer to
make an arrest without warrant; but the cir-
cumstances must be such, either from present
appearance or from conduct on the part of the
person suspected as would lead a reasonable
person to suspect that an offense has been
or is about to be committed, and by the person
suspected. The offense and the person sus-
pected must in some way be connected in the
mind of the officer.

Having made an arrest, the warden should
take his prisoner before the nearest justice of
the peace, or at least the one most convenient
to reach. No unusual haste is demanded and
no unnecessary delay should intervene. The
justice will then proceed to hear the evidence.
The warden making the arrest is a competent
witness and may testify to all facts within his
own knowledge or which he learned upon in-
quiry. All witnesses having knowledge of the
case in hand should be produced and if they
refuse to come voluntarily, should be brought
under subpoena. If a matter where summary
conviction may be had, the justice will, if the

22

case is sufficiently proved, impose the penalty
provided by the acts of Assembly; otherwise
he will discharge the prisoner. If a case that
is cognizable by the county court, the defen-
dant may waive a hearing and enter bail for
court; or after hearing, may be held to bail
to answer at court, or he may appeal.

After a prisoner has been sentenced to pay
a fine, or in default of payment thereof, to an
imprisonment as a punishment for his offense,
it is the duty of the constable to take the de-
fendant to the county jail, and by any method
most convenient to the officer; and the expense
of doing this is a part of the proper expenses
of the case. For this purpose the justice will
issue a mittemus (literally, ‘““we send’’), an order
to the constable directing him so to dispose
of his prisoner. When the latter is safely de-
livered into the custody of the keeper of the
county jail, the duties of the constable are at
an end.

Should a warden need assistance in the mak-
ing of an arrest, he may require bystanders to
lend such help as may be needed. Upon their
refusal to assist, they may be proceeded against
and punished for such refusal.

When attacked, a person has the right to re-
sist in self defense. If a warden in making

23

an arrest is attacked by his prospective pris-
oner or any of the latter’s associates, he may
and must use all possible force in resisting
their attack and in his own defense. If it is
necessary to take life in defense of one’s own
life, this is excusable homicide. It is not nec-
essary that the person attacked should first
submit to a beating or even worse injury before
he acts in his own defense. He is not com-
pelled to retreat as far as he is able before he
opposes force with force; but may from the
very outset resist and follow up his resistance
until he has successfully driven off his assail-
ant, or in the case of a warden, reduced him
to subjection and arrest. This view of the
law is expressly decided and upheld by the
courts of Pennsylvania and by the Supreme
Court of the United States. It remains further
to say only that while acting in self defense,
a warden should use as much deliberation and
good judgment as the circumstances of the
affair will permit and not follow up any ad-
vantage obtained by him, in inflicting grievous
and unnecessary injury upon his prisoner.
Under the act of March 30, 1897, all consta-
bles are ex-officio fire wardens; and under the
act of March 22, 1899, all constables are ex-
officio fire, game, and fish wardens. While it

24

may or may not be a question whether the act
of March 11, 1903 confers upon State Forest
Wardens the powers contained in the two first
mentioned acts, all wardens should be familiar
with the provisions thereof and be prepared to
report any violations thereof to the proper au-
thorities and insist upon prosecutions in proper
cases. Copies of the said acts above referred
to and all the acts in force in the State on the
subject of Forestry will be furnished each
State employe upon Reservations. and the
Commissioner of Forestry recommends that by
continual study of the same, entire familiarity
with their provisions may be acquired. After
a reasonable time allowed for study, a regular
drill and examination thereon is proposed to
be held.

Wardens so invested with authority must
use good judgment and employ the dictates of
reason so far as it is in their power to do.
They must not be needlessly officious nor op-
pressive in their acts; but while enforcing the
jaws must employ such sound discretion as
will enable them to do their whole duty, pre-
serve the dignity of their official positions, and
at the same time, to the end that all citizens
may be led to recognize the aims of this De-
partment, advance the Forestry Idea so far as
they may be able.