Abbott v. Booth

By the Court, Johnson, J. The question in this case is whether the warrant issued by the justice of the peace, against the plaintiff, afforded a justification to the defendant, for the arrest and detention of the plaintiff. The defendant was not an officer, and the warrant was not [551] directed to him, in the body thereof, but “ to the sheriff or any constable of the county,” in which the magistrate resided. The statute (2 R. S. 706, § 3,) provides for the issuing of a warrant by a magistrate when it shall appear before him in a proper manner, “that an offense has been committed.” It must be under his hand, with or without seal, “ reciting the accusation, and commanding ” the officer to whom it shall be directed forthwith to take the person accused and bring him before such magistrate. All the forms and authorities agree that a proper warrant contains a command, or a requirement, in the nature thereof, to the person to whom the warrant is directed, to make the arrest. A mere authority in the nature of a license or permission to make the arrest would not be a warrant, within the statute, or at the common law. The direction is an essential part of every warrant. Unless it is directed to the sheriff or the constables of the county, . or town, or some individual officer, or to some individual by name, who is not an officer, it is not a proper or sufficient warrant. All the authorities will, I think, be found to agree in this. (Barb. Crim. Law, 459. Addis. 376.) At common law the warrant might be directed to some indifferent person who is not an officer. (Barb. Cr. Law, 459. 1 Chit. Cr. Law, 38.) And I am of opinion this may still be done; but a magistrate should, I think, never resort to such a practice if an officer can be conveniently found to perform the service, inasmuch as a common person cannot be compelled to make service or be punished in case of refusal. In Massachusetts it was held that a warrant addressed to the proper officers and to an individual by name who was not an officer was erroneous, and conferred no authority upon the individual to make the arrest. (Commonwealth v. Foster, (1 Mass. R. 488.) Though a doubt was expressed in that case, whether it might not be lawfully done when no officer was at hand to perform the service, and that fact was expressed in the warrant. [552] But here the warrant was not in any sense directed to the defendant. The magistrate, instead of directing it to the defendant by name, and commanding Mm to execute it, undertook to confer an authority, by an indorsement on the back of the warrant in the nature of a permission or license to make the arrest. A warrant issued in that form, merely authorizing the arrest, without requiring and commanding it, would not be a valid warrant. Here the warrant was plainly directed to the sheriff or any constable of the county, in the body of it, and the indorsement, in the form in which it was made, was not a direction to the defendant. The learned judge at the circuit therefore properly held that the warrant afforded no justification to the defendant. [Monroe General Term, September 7, 1868. E. D. Smith, Johnson and J. C. Smith, Justices.] Judgment affirmed.