State v. . Dula

Davis, J., (after stating the facts). The original warrant, issued by the Justice of the Peace, does not state that the-trespass on the prosecutor’s land was after being forbidden or without license, and was very irregular, but no exception was taken on this account, and if it had been, the Magistrate-could have amended it, and, as he had jurisdiction of the subject-matter tried before him, his judgment was not void. In State v. Curtis, 1 Haywood, 471, (Battle’s Edition, 543,) it is-said: “ If a Justice of the Peace issue a warrant for a matter within his jurisdiction, although he may have acted erroneously in the previous stages, the officer should execute-it. * * * If the officer be a known officer of the district in which he is acting, he need not show his warrant when-he makes the arrest; but if he is an-officer appointed for a special purpose, he ought to show his warrant, if demanded.” In State v. Garrett, 1 Winst., 144, it is said that one who is-not a known officer ought to show his warrant, and read it, if required, but even when required, as was done in that case, he is not made a trespasser ab initio if the party to be-arrested knew he had the warrant. The Magistrate having adjudged that the defendant Lafayette Dula should pay the fine and costs, his agreement to-pay it within ten days, and the assent thereto by the Magistrate, did not operate as a discharge of the judgment, and it was competent for him to issue the warrant to- enforce the- *428 judgment, and, being within his jurisdiction, the officer was justified in executing it. The fact that Walsh was the same special officer who first executed the process, was some evidence of notice of the capacity in which he was acting. We were not favored with an argument for the defendants in this Court, and we take occasion to say, that while Justices •of the Peace must be the judges of the “ extraordinary cases ”, mentioned in section 645 of The Code, in which they are authorized to issue precepts or-mandates to persons other than a regular officer, it is always well to state that the person ¿specially appointed or deputed, is so appointed for the want ■of a regularly constituted officer, and we believe that such has been the practice. The statute does not contemplate the appointment of special constables, except in “ extraordinary •cases.” We think that neither of the exceptions to the ruling of his Honor can be sustained, and there is another view of >the case, fatal to the defendant. The assaults were with deadly weapons. Can there be any doubt, that if Walsh had been killed, under the circumstances testified to, the defendants would have been guilty, .-at least, of manslaughter ? It has been said, that “ when the facts of a case of homicide constitute the crime of man.s'aughter, if no killing ensue, the same state of facts will necessarily make the case of an assault and battery.” State v. Leary, 88 N. C., 615; Braddy v. Hodges, 99 N. C., 319. There is no error. Affirmed.