Comfort v. Fulton , 39 Barb. 56 ( 1861 )

By the Court.^*— Gould, J.

—There are two palpable defects in the original proceedings before the justice of the peace (Soules, the defendant), either one of which renders his whole proceedings, in issuing the warrant, so absolutely without jurisdiction and void, that both defendants must be liable in this action. ■

1. Taking the affidavit of Fulton, as coupled with his oral examination, and the complaint really made before Soules amounts to this: That Comfort had, in one continued act, dug and carried away Fulton’s potatoes, of some indefinite value, guessed at $3. Such an act, at common law, is no criminal offence; severing and taking away a growing crop (by one act) is but a trespass. By our statutes (see and compare 3 Rev. Stat., 5 ed., 959, § 70 ; 971, § 1 ; and 973, § 15, div. 4), such an act, if the property so severed and taken was of more than $25 value, would be grand larceny; but if the property were of the value of $25, or less, the act is no criminal offence, unless charged to have been done maliciously; and if so charged, it. is a misdemeanor, as a “ malicious trespass,” but it is not stealing. In the papers before us, the charge is of stealing potatoes of the value of $3; and the warrant is for stealing,—an offence which Fulton’s oral examination actually and completely disproved.

2. The oral testimony, taken by the'justice, shows that Fulton, personally, knew nothing on the subject of the charge; and further, that his son, competent, accessible, and the only witness who could sustain the charge, did personally know all the facts, whatever they were. And while it is barely possible that so meagre a complaint as the written one in this case might sustain a warrant, if it were all the proof that could be produced before the justice, until an arrest should enable the complainant to enforce the attendance of witnesses ; still, a case where the justice had before him so little, with certain information that full knowledge was within his reach, is not one to be favored by any court which regards exemption from groundless arrest as one of the rights of the citizen.

As to the liability of both defendants : there can be no doubt of that of the justice; and the complainant was too conspicuous an actor in the whole proceeding, to be sheltered behind the legal cover of the warrant. Indeed, the jury might fairly infer, from the evidence, that the complainant’s motives in asking for the warrant were malicious; and that the justice understood the position of both parties, and was willing to gratify the complainant, both believing that they were under the cover of the law. Both should be held responsible .for- an arrest -so' utterly without legal justification. ,

The charge of the judge at the circuit was in precise accordance with the views expressed above, and was not erroneous. The judgment must be affirmed (and order refusing- new trial also,—Query ? as that is not appealed from).

Peckham, J.—The Constitution of the United States provides that “.no -warrant -shall issue but -upon probable cause, supported by oath or affirmation, and-particularly describing the place.to be searched, and the .persons or things to be seized.” (Art. 4.) I do not know why this is not the law of the land in State as .well as in United States tribunals. It is in terms reenacted-in our bill of rights. (1 Rev. Stat., 93.)

In this case, information from his son by complainant is no proof whatever. It cannot be by possibility “ probable cause supported by oath.’! It- is.no “ oath or affirmation,” within, the meaning of the law. Had any fact been stated, so as to enable the magistrate to exercise his judgment .as to the probable cause, he could not be made liable for an error in its exercise. Here was nothing more (nor so much in fact), than if the son had come into .court and stated, without oath, that he saw this plaintiff commit-the offence. That would not be claimed to be sufficient.

Hogeboom, J., concurred.

* Present, Gould, Hogeboom, and Peckham, JJ.