State v. . Armistead

Clark, J.: The Justice of the Peace is the sole judge of the “extraordinary cases” in which he shall exercise the power of appointing a special constable under authority of The Code, § 645. State v. Dula, 100 N. C,, 423. The present case is materially different from Slate v. Dean, 3 Jones, 393 which was relied on by the defendants. In that case the appointment was, “I depute E. S. Dean to execute the within warrant.” The deputation, therefore, expired when the warrant was served, and- the subsequent parol order to execute the mittimus was held invalid. The Court put their *642 decision upon the ground that the warrant, having been returned, “the deputation had expired,” and Dean had no longer any authority to act. They say that the Justice should have deputed the oiiicer in writing to execute the mittimus, and not have appointed Dean by parol. That if deputed by parol, Dean, in case of resistance, could not show his authority to call on others to assist him in executing the mittimus entrusted to him. In the present case the deputation is not limited to serving the warrant. The words are, “ J.W. Freeman is hereby appointed Special Constable.” This authorizes the service of all other processes in the case, as much as it does the service of the warrant, and puts the appointee, as to the case in which it is made, in the position pro hac vice that a regular constable would have held, clothed with the same powers and subject to the same liabilities. The same emergency that called for his appointment in order to serve the warrant would be likely to exist throughout the trial and until the prisoner should be lodged in jail, if convicted and sentenced. Indeed, Freeman testified that the deputation was given him to execute, the mit-timus as well as to serve the warrant. There is no express restriction on the special deputation, and none is implied, -except that it must be limited to the case in which it was given. State v. Dean also differs from this case, in that it was a direct proceeding by the State to subject the officer (Dean) to punishment for an escape, and it was held that, as he was expressly deputized to serve the warrant only, he could not be held liable for failure to perform the further duty of carrying the prisoner to jail, which could not be devolved on him by parol. That case is not authority that the validity of an acting officer’s power to execute the legal sentence of a Court can be tested in this collateral way by third parties, violently and by force, taking a prisoner from his custody. The other exception advanced is, that the mittimus itself is insufficient, under The Code, § 1238. It is defective in many *643 respects. The jailer, it may be, would have been authorized to refuse the prisoner until a fuller and more perfect mittimus was sent. The defendant certainly, if he chose, could have inquired into the legality of his detention in jail under it by a .writ of habeas corpus. The latter course, in this particular instance, would have availed little, however, as the Judge, upon production of the Justice’s judgment, must have remanded the prisoner. So far from Allen being-sent to jail by parol, the sentence and the appointment of the officer to execute it are both in writing. The instruction to the officer to execute the recorded sentence was oral, and this we see done every day in the Superior Courts. Whether the mittimus was such as authorized the jailer to receive the prisoner and relieve the special officer of further responsibility, it is not material to consider here. Freeman was a duly appointed officer, charged by order of the Court with the duty of taking to jail a prisoner legally sentenced thereto. Like any other officer, under such circumstances, if the mittimus were defective, he was responsible for the safe-keeping of Allen till relieved by the jailer, or by further order of the Court amending the mittimus, or otherwise. Had he wilfully or negligently permitted Allen to escape while in his charge he would have been criminally liable. State v. Garrett, 82 N. C., 580. And any one forcibly and violently taking him out of the custody of such special officer is liable for an escape. Even were this not so, the defendants are liable, under this indictment, for the assault. They had no right to take the prisoner from Freeman in so violent and forcible a manner. If their purpose was lawful and sincere, they should have notified Freeman firmly, but gently, of their purpose, so as to show an intention to vindicate the law and not to violate it, and to show a peaceable and not a hostile intent. They should not have proceeded at once to such violence. State v. Hedrick, 95 N. C., 624. It was not necessary that Freeman should have exhibited *644 his special authority to the prisoner himself, unless demanded. State v. Dula, 100 N. C., 423; State v. Curtis, 1 Hay., 471; State v. Garrett, 1 Winst., 144. As to third parties, we know of no right they have to stop an officer in charge of a prisoner and demand his authority. There was a legal way to test the lawfulness of his authority without resort to force. In the above cited case (State v. Dean) the mittimus was as defective as here, but the Court place their decision solely on the “expiration of the deputation” to the officer. No point was made in the argument here, nor was any exception taken below, as to the Justice’s power to amend the judgment by adding the word “ days,” inadvertently omitted. His power to do so was clear. Indeed, no objection was raised as to the validity of the sentence imposed on Allen. That could make no difference to defendants, for its legality could not be questioned in this way. State v. Garrell, 82 N. C., 580. Upon the facts, about which there is no controversy, it appears that while Allen was in the custody of a lawfully appointed special constable, and was being carried to jail under sentence from a Court of competent jurisdiction, the defendants, in a high-handed manner, took the prisoner forcibly from the custody of the law and set him at liberty, without making any show or claim of right. We think there ip No error.