Wright v. Templeton

Watson, J. The defendant undertakes to justify under two warrants issued by a justice of the peace upon complaints of the state’s attorney of the county charging criminal offences. The warrants commanded the officer serving the same to apprehend the plaintiff and have him forthwith before the subscribing justice at Barre. The plaintiff was arrested on the warrants by the defendant, a legally qualified deputy sheriff, at [361] Groton about nine o’clock in the evening of October 8, 1899, and taken to Barre, arriving there between the hours of five and six the next morning. After a short stop in Barre, and without taking the plaintiff before the justice of the peace who issued the warrants, and without communicating with the state’s attorney 'then at his home in Barre, the defendant took the plaintiff to Montpelier, and when there placed him in jail for/safe keeping. Later in the forenoon warrants were’ issued against the plaintiff from the county court, then in session, on informations filed therein for the same offences. These warrants were put into the defendant’s hands by the state’s attorney at Montpelier, near ten o’clock, with directions to notify the plaintiff that the proceedings before the justice were dropped, and then to arrest him on the new warrants. Thereupon the defendant let the.plaintiff out of jail, notified him as directed by the state’s attorney, and arrested him on the warrants issued by the county, court. This was ten o’clock or a little after, the plaintiff having been in jail not far from three hours. The special question submitted to.the jury, “Was it a reasonable and proper thing in point of fact for the defendant to do in the circumstances, to take the plaintiff to Montpelier and keep him there instead of keeping him at Barre?” was answered in the affirmative. This finding, however, is immaterial, since the record shows that the plaintiff was not taken to Montpelier for safe keeping until he could be taken by the defendant before the subscribing magistrate, as commanded in the warrants, but in fact was taken there so the defendant could confer with the state’s attorney as to what further to do with the plaintiff. Whether the defendant had authority so to do is not a question of fact, but one of law. On making the arrest it was the duty of the defendant to take the plaintiff before the subscribing justice of the peace as commanded in the warrants. 2 Hale, P. C. 112. In Ellis v. Cleveland, 54 Vt. 437, it was held that an officer could not justify under a returnable process, unless he show its return; for he is commanded to return the_writ, and he shall not be protected by it without showing that he has paid due and full obedience to its commands. To the same effect is Gibson v. Holmes, 78 Vt. 110. True, in each of these cases the arrest was [362] on civil process. Yet the same doctrine applies in case of a warrant in criminal process. This was expressly held in Tubbs v. Tukey, 3 Cush. 438, 50 Am. Dec. 744. The taking of the plaintiff to Montpelier for the purpose shown was such an abuse of process as made the defendant a trespasser ab initio. Consequently the fact that the plaintiff’s subsequent discharge, there, from that arrest was by the direction of the state’s attorney, does not relieve the defendant from liability in this action. Judgment affirmed.