State v. McNally , 34 Me. 210 ( 1852 )

The opinion of the Court, Shepley, C. J., Wells, Hathaway and Appleton, J. J., was drawn up by

Hathaway, J.

The testimony of Adams, as to his acting as constable, &c., (objected to by defendants) was properly admitted, and also that of Jones, that he acted as justice of the peace. Potter v. Luther, 3 Johns. 431; McCoy v. Curtis, 9 Wend. 17.

The testimony of Jones that he was a justice of the peace, was immaterial, for it appears by the warrant as copied in the indictment, that the complaint was made to him as a justice of the peace, that he received it as such, and signed and issued the warrant in that capacity. The presumption therefore is, that he was legally authorized so to do. Lowell v. Flint, 20 Maine, 401.

The reasons which induced Chase and Curtis to believe that the charges in the complaint were true, and their purpose in making it, could have no effect upon the rights or liabilities of the defendants in this case, and their testimony upon that subject was rightly excluded. The first instruction requested and refused by the Judge presiding at the trial was, “ that the acts with which the defendants were charged with conspiring to do were not illegal acts,” &c. The first count in the indictment charges them with a conspiracy to commit an assault and battery upon Miles Staples, a deputy sheriff, for the purpose of preventing him from performing the duties of his office. The instruction requested was, therefore, that an assault and battery upon a deputy sheriff, to prevent his doing his duty was not an illegal act. It was properly refused.

The correctness of the instructions given, and the propriety of the refusal to give the other instructions requested, may depend upon the question whether or not the warrant, under which Staples acted, was such a precept as he was legally authorized to obey, for if it were so, he was bound to execute it and the defendants had no right to resist him.

Officers whose duty it is to execute legal processes committed to them for service, should have reasonable protection in the discharge of their duties. Where the process is void it is no justification to the officer, but where it is merely voidable for irregularity or mistake he is protected by his precept.

In delivering the opinion of the Court in Sanford v. Nichols & als., 13 Mass. 286, Parker, C. J. said, “It is a general and known principle, that executive officers, obliged by law to serve legal writs and processes, are protected in the rightful discharge of their duty; if those precepts are sufficient in point of form, and issue from a Court or magistrate having jurisdiction of the subject matter; but it is necessary, that the precept under which the officer acts should be lawful on the face of it.

It was no part of the officer’s duty to examine into and decide upon the constitutionality or construction of the statute which authorized his warrant.

It is sufficient where the magistrate has jurisdiction of the subject matter, if the process is regular on its face and does not disclose want of jurisdiction. Savacool v. Boughton, 5 Wend. 170 ; Earl v. Camp, 16 Wend. 562.

The counsel for defendants objected, that statute of 1851, chap. 211, §. 11, by virtue of which the warrant was issued, does not authorize a deputy sheriff to serve it, and contended in his argument, that the punctuation of the printed statute sustained this objection. The language of the statute is, “ said justice, &c., shall issue his warrant of search to any sheriff, city marshal or deputy.”

The printer’s punctuation of the published laws, might be an uncertain guide in their interpretation. We think the term “ deputy,” in the statute, relates to both the marshal and sheriff preceding it.

It was also contended that the proceedings for seizing said liquors were unauthorized by law, because the warrant commanded the officer to appoint such time for the hearing of said complaint as he might choose. The language of the statute is, “ the owner or keeper of said liquors, &c., shall be summoned forthwith, before the justice or Judge by whose warrant the liquors were siezed.” The command of the warrant in this case was “ to summon said Sanford forthwith to appear at a Court to be holden at my office in Frankfort at such time as you may appoint.” Although this might have been an irregularity on the part of the magistrate, it did not render the warrant void and the rights and duties of the officer were not affected thereby.

The defendants’ counsel also objected that a steamboat is not a “ place” liable to be searched within the meaning of the statute. The language of the statute is “ any store, shop, warehouse, other building or place in said city or town.” This language was evidently intended to comprehend all places (in the city or town,) in which the mischief intended to be remedied could exist.

Note. — This case, though belonging to the Middle District, was argued at Bangor, for convenience of the parties.

A steamboat or vessel moored at the wharf is a place, as much as is a shop standing upon the wharf. It may be stationed there, and used for the same purposes as the shop. The defendants say the warrant was void because it was not and did not purport to be under the seal of the magistrate.

R. S. chap. 170, § 15, provides that a warrant of search for stolen goods, &c., shall be issued by the magistrate under his hand and seal. The statute of 1851, under which the warrant in this case was issued, provides merely that the justice shall issue his warrant of. search. In Padfield v. Cabell & als. Willes, 411, it was held that a warrant need not be under seal unless required by the statute. In that case Willes, C. J., said, “a warrant does not ex vi termini, imply an instrument under seal; it signifies no more than an authority. All the books, in which it is said that a warrant must be under seal, are founded on a case in the year books, where it is said that a justice of the peace is a Judge of record and hath a seal of office.” A justice of the peace in this State has no seal of office.

But whether a seal was necessary or not becomes immaterial, for it appears there was a wafer attached to the warrant as a seal. Defendants’ counsel insisted that “ there was no evidence either in the warrant itself, or aliunde, that the bit of wafer attached to the warrant was the seal of the magistrate or adopted by him.” A wafer attached to the warrant is the usual seal in such cases and the fact that it was there, was prima facie sufficient. Exceptions overruled.