Kent v. Miles

TAFT. J. The first objection made to the pleas is that they fail to answer the whole declaration, for that they justify the detention of the plaintiff for three days only instead ■of the six months’ detention charged in the declaration. We might well pass this question unnoticed, as no copy of the declaration has been furnished us ; but it appears from the pleas that the pleader justifies the detention of the plaintiff “for the said space of time in the said declaration mentioned.” The point is not well taken. The main question before us is, whether a justification is set forth in the pleas. It is alleged therein that the plaintiff was indicted for perjury, at the September term, 1887, of the Orleans county court sitting at Newport in said county; that on the 14th day of September, 1887, a warrant was issued by the court then in session, properly directed to any sheriff, etc., commanding him “to apprehend the body of the said plaintiff and have him forthwith to appear before the county court in and for said county at said Newport,” etc., to answer to said charge of perjury, that the warrant was 50 delivered the defendant to serve, that by virtue, of it he did arrest the plaintiff and take him to Newport, but that said county court was not then in session so that the defendant could have the plaintiff before it, and for that reason he kept and detained the plaintiff for the purpose of having him, the said plaintiff, to appear before said court as soon as the same should be in session, and lodged the plaintiff in the common jail at Newport for safe keeping, and made due return of the warrant. When the defendant reached Newport, with the plaintiff under arrest, the court having adjourned, it was his duty under the warrant to keep and detain the plaintiff until the court again convened, either by adjournment or at its next term, and he could lawfully commit the plaintiff to jail for safekeeping. The case of State v. Lamoine, 53 Vt. 568, involved no question in the case before us. That action was scire facias upon a void recognizance taken by a judge having no jurisdiction. It was'not necessary to call the sufficiency of the warrant in question. The facts set forth in the first plea are alleged in the second, and in addition thereto, the further fact that the defendant discharged the plaintiff from arrest and confinement in the jail at Newport, where he had committed him, by direction of the state’s attorney for Orleans county, the official in charge of the prosecution. It is the duty of the state’s attorney to “prosecute for offences,” V. S., s. 2955, and we think he has power to discharge one from arrest if, in his judgment, the administration of justice required it. Judgment affirmed and cause remanded.