Smith v. McDuffee

Mr. Justice Moore delivered the opinion of the court. It is contended that, in receiving in evidence, over objection and exception, the affidavit for a search-warrant, the process issued pursuant thereto, and the excerpt from the justice’s docket, copies of which, as hereinbefore displayed, were substituted in the bill of exceptions, errors were committed. These questions — 281 — will be considered only in so far as they are involved in tbe remaining inquiry, to wit: An exception having been taken to a part of the court’s charge, it is insisted that an error was committed in telling the jury: “I further instruct you that the defendant Andrew Edling, was a duly appointed officer to execute the search-warrant issued by William W. McDuffiee, justice of the peace in district No. 6 of this county and state, and that the search-warrant in this case was regular upon its face; that an officer acting under a writ which is regular upon its face,, as the search-warrant was in this case, is justified in following the command of such writ, regardless of whether the same was caused to be issued without probable cause, maliciously or otherwise.” 1. The latter exception presents for consideration the questions: Was Edling a duly appointed special constable? Did the process conform to prescribed rule? A justice of the peace is authorized to appoint some suitable person, not a party, to serve any process or order issued from his court when it appears to him that such service could not be made for want of an officer: Section 2518, L. O. L. The defendant Mc-Duffiee, as a witness, having identified the affidavit, search-warrant and the docket entry, was asked, in referring thereto on cross-examination: “You have now produced in court and offered in evidence all the record that you have or made at the time with reference to this search-warrant; is thai right?” He replied: “Yes, sir; that’s right.” It will thus be seen that Edling’s appointment was not evidenced by any writing, indorsed on the writ or otherwise, and that no finding was made, as in the case of North Pacific Cycle Co. v. Thomas, 26 Or. 381 (38 Pac. 307, 46 Am. St. Rep. 636), that it appeared to the justice that the — 282 — search-warrant could not be served for want of an officer. The defendant Edling testified that McDuffee requested him to take the search-warrant and execute it, which he promised to do, whereupon the justice administered to him an oath of office. The presumption that official duty has been regularly performed was overcome by the testimony referred to. No evidence having been offered at the trial that the search-warrant could not have been served for want of an officer, the justice, whose power in this regard is limited by the enactment adverted to, was without authority to nominate Edling, and, this being so, he was not, as said by the court “a duly appointed officer.” A clause of the Bill of Rights reads : “No 'law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized”: Article I, Section 9, of the Constitution. A search-warrant may be issued by a justice of the peace directed to a peace officer commanding him to search for personal property at any place within his county: Section 1852, L. O. L. Such process may be issued when the property has been stolen: Section 1853, L. O. L. The statute also prescribes the form of the warrant: Section 1856, L. O. L. Such form, however, was not followed in the case at bar. 2. It will be remembered that the warrant herein did not state that any of Von Behren’s cattle had been stolen. The person in whom was vested the title to the cattle that had been “missed” from the public range is even left in doubt, though possibly the com — 283 — plainant’s ownership thereof may be inferred from a subsequent clause of the process to the effect that he believed “that his animals or animal had been butchered and that the beef, hides, etc., may be found on the premises of D. G. Smith.” It will be kept in mind that the affidavit charges “that D. G. Smith has now beef in his or his family’s possession; and, 3d, that I, Wm. Von Behren, believe his animals or animal has been butchered,” etc. The statute declares that a witness in all affidavits must be made to speak in the first person: Section 829, L. O. L. Construing the affidavit herein according to the rule thus prescribed, it will be observed from the pronoun “his” following the word “Von Behren” that the complainant believed Smith had butchered his own animals, and, when so read in connection with Von Behren’s sworn declaration that he had only “missed” cattle from the public range, the affidavit does not charge the commission of any offense known to the law. It will be noticed, however, that the search-warrant is broader than the affidavit in this respect. 3. The most serious objection to the writ, however, is its failure to comply with the requirements of the Constitution hereinbefore quoted, in that it does not particularly or at all describe any tract of land ox-buildings, or specify the process was to be executed in Grant County, Oregon. In an extended note to the case of Rose v. State, 17 Ann. Cas. 228, 232, in discussing the sufficiency of a description of the premises in a search-warrant or an affidavit therefor, it is said: “The rule, however, has been laid down that a search-warrant must contain as specific a description of the place to be searched as would be required in an instrument conveying a specific piece of real estate.” — 284 — To the same effect, see People v. Holcomb, 3 Park. Cr. R. (N. Y.) 656, 666; Commonwealth v. Intoxicating Liquors, 97 Mass. 334. In construing the language of deeds or other -writings relating to real property, it has been held that the description of land therein contained was sufficient, if, with the stated instrument before him, a surveyor, either with or without the aid of extrinsic evidence, could locate the premises with reasonable certainty: Willamette Co. v. Gordon, 6 Or. 175; House v. Jackson, 24 Or. 89 (32 Pac. 1027); Hayden v. Brown, 33 Or. 221 (53 Pac. 490); Bogard v. Barhan, 52 Or. 121 (96 Pac. 673, 132 Am. St. Rep. 676); St. Dennis v. Harras, 55 Or. 379 (105 Pac. 246, 106 Pac. 789). Under the very liberal rule thus adopted the affidavit and the search-warrant based thereon were defective, in that they failed to describe any houses, buildings or real property to be examined or designate the county in which the writ was to be executed. 4. The dwelling of every person while he is in the lawful possession thereof is his castle, and it ought not to be subjected to an uninvited search, except by a duly qualified officer, and then only in pursuance of a valid writ commanding it. Such searches are usually made without the consent of the occupant of a domicile, and, the investigation being a proceeding in invitum, the statute authorizing it is to be strictly construed, and no presumptions of regularity are to be invoked in aid of the process under which a proper officer obeying its commands undertakes to justify. So far as disclosed by the record before us, there may have been no want of an officer to serve the process, and if so, Edling could not have been appointed to execute it. But however this may be, the search-warrant being faulty in the matters detailed, the pro — 285 — cess was void on its face, and errors were committed as alleged. 5. The remaining question is whether or not, by resorting to Article VII, Section 3, of the Constitution of this state, the judgment should he affirmed, notwithstanding such errors. In construing this clause of the organic act, it has been held that, in order to support a judgment under such circumstances, the findings of the jury must have been based on legal evidence, and the facts must have been submitted to them under proper instructions: State v. Rader, 62 Or. 37 (124 Pac. 195); Love v. Chambers’ Lumber Co., 64 Or. 129 (129 Pac. 492); Forrest v. Portland Ry., L. & P. Co., 64 Or. 240 (129 Pac. 1048); Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641). It is believed that the case at bar furnishes an exception to the rules thus stated. The verdict was evidently founded on a denial of the alleged acts of aggravation and an averment of the answer to the effect that the search was made pursuant to and by invitation of the plaintiff’s wife. The testimony on these issues was conflicting, and for that reason the questions were properly submitted to the jury, in charging whom on these branches of the subject the court said: “I instruct you that in executing a search-warrant that the officer should do no unnecessary damage to the property and no unnecessary injury to the feelings of those present at the time and in charge of the premises, and if you find that in serving the search-warrant the officer unnecessarily and intentionally offended the plaintiff’s wife and those present, that such search-warrant could be of no protection to him.” The jury were further instructed: “That would constitute a defense as to both of the defendants in this case, even though the search-war — 286 — rant was caused to be issued without probable cause and maliciously by the said William Yon Behren.” To which language no exception was taken. In Grim v. Robinson, 31 Neb. 540 (48 N. W. 388), a person having lost several small articles of property, which were carried away by a minor child of a neighbor, the owner of the goods went to the house of the child’s parents, and the wife and mother, in the absence of the husband and father, permitted him to search the premises, and it was held that if such consent was given, the party has a right to search the house for his lost property. In State v. Griswold, 67 Conn. 290 (34 Atl. 1046, 33 L. R. A. 227), it was ruled that searching the office of an accused person with the consent and aid of his servant and agent, who was in possession, in order to obtain evidence against the accused, was not in violation of the constitutional provision against unreasonable searches, and that the taking away of the article found there with the consent of the agent was not a “seizure.” So, too, in McClurg v. Brenton, 123 Iowa, 368 (98 N. W. 881, 101 Am. St. Rep. 323, 65 L. R. A. 519, it was determined that one who consents to having his property searched by an officer without a warrant has no right of action as for a legal search. The jury in the case at bar, having found for the defendants Edling and Yon Behren, must necessarily have concluded that the search of the buildings was made by them without aggravation and pursuant to request and by invitation of the plaintiff’s wife. She, like any other honest person, when informed that it was supposed that the property of others was unlawfully kept in her home, challenged the most thorough examination of the premises. If, therefore, it be as287 sinned that all the proceedings were void, it will be inferred that, in the absence of her husband, Mrs. Smith was authorized to permit the search that was undertaken, and, having acquiesced therein, the maxim, “Volenti non fit injuria,” governs our determination. The record herein brings the case within the requirements specified in the organic act regulating the practice on appeal, and furnishes ah exception to the rules heretofore established on this subject. The judgment is therefore affirmed. Affirmed. Mr. Justice Burnett and Mr. Justice Ramsey concur.