State v. . Lyon , 93 N.C. 575 ( 1885 )

The counsel for the present defendants insisted on the argument before us that no appeal lay (576) in favor of the defendant in the peace warrant from the order of the justice of the peace requiring him to enter into a recognizance to the State, conditioned that he would keep the peace and be of good behavior, etc. We are of that opinion, and think that the Superior Court should have dismissed the supposed appeal.

A "peace warrant" is denominated in The Code a criminal action, but it is no part of its purpose to charge a party with a criminal offense, try him for the same, and, if found guilty, impose a punishment upon him. It is a proceeding in the administration of preventive justice, the purpose of which is to oblige a person who, there is probable ground to believe, will commit some criminal offense, or do some unlawful act, to stipulate with and give satisfactory assurance to the public that such apprehended offense will not happen; that he will keep the peace and be of good behavior generally, and in such cases, specially toward a person or persons named. The party recognized is only required to do what a good citizen ought to do without compulsion. Sir William Blackstone says: "This preventive justice consists in obliging the persons whom there is a probable ground to suspect of future misbehavior to stipulate with, and give full assurance to the public, that such offense as is apprehended shall not happen, by finding pledges or securities for keeping the peace or for their good behavior. This requisition of securities has been several times mentioned before as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanors; but these also must be understood rather as a caution against the repetition of the offense than any immediate pain or punishment." 4 Bl. Com., 252.

The nature of the purpose to be so subserved suggests and requires that the action of the officer requiring such security of a party must be conclusive and not subject to the right of the appeal ordinarily. An appeal, in the absence of any statutory regulation to the contrary, would vacate the order requiring security to keep the peace, and (577) the persons from whom danger is apprehended might, without such restraint, commit the offense pending the appeal. HenceJustice Dick said in S. v. Locust, 63 N.C. 574, "that such proceedings must be summary and conclusive to render them effectual for the protection of the complainant and to secure the public peace, and generally there is no appeal from the action of the justice of the peace in the matter."

This view is not in conflict with the provision of the Constitution (Art. XVIII, sec. 27) and the statute, The Code, sec. 900, allowing appeals from justices of the peace in criminal cases. These provisions have reference to criminal cases wherein the magistrate gives judgment against a party charged with a criminal offense, and imposes on him a punishment by fine or imprisonment. This is apparent from the nature of the matter, and as well from the language employed in The Code, secs. 900, 901, 903. They refer to the conviction and sentence of defendants.

It is asked, "Is there no remedy if the action of the justice of the peace is manifestly erroneous or if he shall prostitute his powers?" It is not to be presumed that he will be in error or prostitute his powers; but if he should, the law does not provide that such wrong shall be corrected by appeal, and for the reasons already stated.

It may be that the action of the justice of the peace in such a case as that suggested might be taken to the Superior Court by certiorari, or if the party complaining should be in close custody he might obtain relief byhabeas corpus, but we are not called upon to decide any question in this respect.

There is error. The judgment of the Superior Court reversing the order of the justice of the peace must be reversed and the appeal to that court dismissed.

To the end let this opinion be certified to that court.

Error. Reversed.

Cited: S. v. Byrd, post, 627; S. v. Walker, 94 N.C. 858; S. v.Gregory, 118 N.C. 1199; S. v. Webb, 155 N.C. 430; S. v.Andrews, 166 N.C. 353; S. v. Hooker, 183 N.C. 768;S. v. Rooks, 207 N.C. 276.

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