McMahan v. Edgerton

Babrett, J. This is an action on the statute for the penalty imposed, in ease a person detaining a prisoner shall, on demand and tender of fees, refuse or neglect to deliver a true copy of the warrant or process by virtue of which he detains such prisoner. It is clearly a penal action, and, according to many decided eases, stands upon the same rules of evidence as any other form of criminal prosecution. It is obvious, therefore, that the refusal or neglect, by which the forfeiture is to be incurred, must be the personal, voluntary act of the person sought to be charged ; and that the plaintiff must show by the requisite proof all the facts essential to constitute the culpable refusal or neglect contemplated by the statute. The very idea, upon which this duty of the officer having the prisoner, to give the demanded copy rests, necessarily implies that such officer has, or, but for his own act in depriving himself, would have, the warrant or process of which he is required to give a copy. Hence, in order for the defendant to be regarded capable of refusing or neglecting to comply with the demand, it should appear that the defendant had, or, having once had, wrongfully had deprived himself of, such process or warrant. This being an essential element of the plaintiff’s right to recover, it devolves on him to make affirmative proof of the fact. The plaintiff’s counsel undoubtedly entertained this view, and accordingly gave evidence to show that the plaintiff had been arrested upon a warrant of a justice of the peace, by a deputy sheriff, who was holding him in custody to have him before the justice, agreeably to the precept of the warrantthat in the absence of the justice, and awaiting his return, the deputy sheriff kept his custody of the plaintiff, by putting him into the county jail, — not as an act of commitment required by the warrant, but only as a convenient means of maintaining,his custody. Of course, it was of the same character as if the deputy sheriff had confined the plaintiff for safe keeping in any other room or building, in charge of any other person The evidence also showed that the deputy sheriff left no copy of the warrant with the defendant, and made no return upon the warrant. As the precept of the warrant only required the officer to arrest the [80] plaintiff and have him before the justice, of course the only proper return would have been in pursuance of such precept; and to this end, it could not be requisite to set forth either the mode of the arrest, or of the means by which the custody had been kept. Whether he would give a copy of his warrant to the jailor or not was a matter entirely within the control of such officer. If he had done so, whether it would have varied the legal character of the custody he was keeping of the plaintiff need not now be determined or discussed. The plaintiff himself having thus shown that there never had been delivered to the defendant any precept or process, or any copy thereof, on which the plaintiff was detained as a prisoner, it could not properly be held that the defendant refused or neglected to give the copy upon the lawful demand thereof, in the obvious sense and intent of the statute. The lawfulness of the imprisonment is not now the subject of enquiry, nor whether there is any official liability of the defendant for the acts of his deputy in making the arrest and keeping the custody of the plaintiff under the warrant. This suit is brought exclusively on the section of the statute recited in the declaration, and for the forfeiture' therein provided. The point taken by the learned counsel for the plaintiff, that he was not bound to prove that the defendant had a warrant or process, by which he detained the prisoner, because he had not averred it in his declaration, we cannot regard as tenable. Though the defendant went to trial without demurring to the declaration for the want of that material averment, we think the objection might be taken on the trial, on the failure of the plaintiff to prove the fact. It would be far from certain that a verdict for the plaintiff would have withstood a motion in arrest, even if the fact itself had been proved — this being in the nature, and governed by the rules of criminal proceedure. It therefore does not become the plaintiff to complain that the objection was taken at a stage of the case that afforded him an opportunity to bring his proofs up to the requirements of the law, even though he had failed to make the necessary averments in that respect in his declaration. A conclusive test of this point would be presented, if the defendant, instead of taking the objeo [81] tion upon the state of the plaintiff’s evidence, had offered under the general issue, to show that the deputy did not deliver a copy when he put the plaintiff into jail, in connection with the other facts now shown by the plaintiff’s evidence as. to the occasion, and manner of his being put in and detained. Upon the view we have already expressed, as to what is essential in order to render the defendant capable, in the given case, of neglecting or refusing to give the copy, so as to incur the forfeiture, it is ■obvious that we should regard such evidence admissible, and if the fact should be proved, it would constitute a good defence. We see no error in the rulings of the county court, and the judgment is affirmed.