Howard v. State , 121 Ala. 21 ( 1898 )

TYSON, J.

— The indictment contained three counts. Two of them were framed under section 5463 of the Code and the other under section 5466. Each count was demurred to. The assignments of tbe demurrer raised the question that the warrant or writ of arrest was not sufficiently described. The contention was insisted upon that the indictment should have averred the offense mentioned in the warrant or writ of arrest, its date of issuance and the name of the person for whom issued. '

No such particularity is prescribed by the form for the indictment under section 5463, in fact it is there expressly declared that describing the process generally is sufficient. Form 73, p. 334, of Code.

No. form is found for indictments under section 5466. The count in'the indictment under consideration follows the language of this section and no more particularity in the description of the warrant or writ of arrest is required in an indictment under this section than is required under section 5463. There was no error in overruling the demurrer.

The warrant or writ of arrest introduced in evidence ■ against the objection of defendant describes the offense as “threatened a breach of peace.” There were several objections urged against its introduction in evidence. Those worthy of consideration may be stated to be, that it was void upon its face in that it charged no offense known to the law and that the justice of the peace issuing it had no jurisdiction to do so.

■ Section 5162 of the Code authorizes the institution of proceedings before magistrates to keep the peace. The purpose of the statute is to prevent the commission of an offense against the person or property of another, and to this end a warrant may issue for the arrest of the person who has threatened or is about to commit, an offense on the person or property of another and if there is just reason to fear the commission of such offense, the defendant must be required to give security to keep the peace, etc. Sections 5163 and 5168. It is a preventive measure which the magistrate is authorized to set in motion- to restrain the defendant from the commission of an offense against the person or property of another, and not a proceeding to try the person charged with the commission of a criminal offense. To threaten an offense on the person or property of another is not an offense against the law for which a person may be punished. At most, as we bave said, be may be restrained from so doing by proper proceedings, bnt not pnnisbed by fine or imprisonment. True, should tbe defendant fail to give tbe security required by the magistrate, it is tbe duty of tbe magistrate to commit him to jail until be enters into tbe undertaking with sufficient sureties for tbe time be is required to keep tbe peace, not more than twelve nor less than six months. But this commitment to jail is predicated upon bis failure or refusal to give tbe security required by the order of tbe magistrate, and not as tbe punishment for the commission of an offense.

Tbe warrant issued for tbe arrest of tbe defendant in tbe case under consideration was in these words: “Complaint on oath having been made before me that the offense of threatening breach of peace has been committed in said county and charging Jack Howard with tbe commission of said offense, you are therefore commanded to arrest said Jack Howard and bring him before me instanter.”

The gist of this warrant is that tbe defendant bad committed tbe offense of threatening a breach of tbe peace. This is emphasized by the language following, “charging Jack Howard with tbe commission of said offense.” Howard had committed no offense, as shown by the language in the warrant. Had tbe warrant read that be has threatened an offense on the person or property of another, he would have been apprised that he was required to appear for the purpose of having the. question adjudged as to whether or not he would have to give security to keep the peace, and that he was not charged with a criminal offense. When this warrant was shown him or read to him, he doubtless believed and had a right to believe, nor was there a clear inference deducible from the language to the contrary, that the attempt to arrest him was for an offense for which he ivas to be punished, which designated offense was unknown to the law and not punishable.

The warrant was void upon its face and the defendant was under no legal duty to submit to an arrest. Notes v. The State, 24 Ala. 672.

This renders it unnecessary to review the other questions-raised in the record.

Tbe judgment of conviction must be annulled and reversed and tbe cause remanded.

Reversed and remanded.