State v. Elrod, 28 N.C. 250, 6 Ired. 250 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 250, 6 Ired. 250

THE STATE vs. HIRAM ELROD.

No matter what an officer declares, when he seizes property, if lie has a lawful process authorising him to seize the property, he is not guilty of a trespass.

The State v. ICirby, 2 Ired. 201, cited and approved.

Appeal from the Superior Court of Law of Ashe County, at the Spring Term, 1846, his Honor Judge Caldwell presiding. ■

The defendant was indicted for forcible trespass in seizing a certain mare, and the case presented the following facts:

The indictment charged, that the' defendant with force and arms, and with a strong hand, unlawfully took and carried away a mare from the possession of one David Miller, against the will of said Miller, who was then and there present, forbidding the same. The taking of the mare by the defendant was in the month of August, in the year 1843 ; and he, then being an officer, had in his hands an execution against Miller for about four dollars, dated the first day of August,1843. The defendant, when he first took hold of the bridle, which held the mare, (which bridle was also held by Miller,) demanded her as the property of. his father, but he shewed no authority from his father to make such a demand. Miller also claimed the mare as his property: a quarrel ensued between them, and, during the dispute, the defendant for the first time told Miller that he had an execution against him. The Judge charged the jury, that if the execution was not used by the defendant in good faith for the purpose of raising the money due under it, but was used as a mere instrument to get possession of the mare for his father, it was not a justification.

The jury found a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Attorney General, for the State.

No counsel in this Court for the defendant,

Daniel, J.

We think that the lawfulness of the seizure did not depend upon what the Constable declared, but upon the sufficiency of' the authority which he had. State v. Kirby, 2 Ired. 201. Suppose an officer has in his hands a legal and an illegal warrant, and he arrests by virtue of the illegal warrant, yet he may justify by virtue of the legal one; for it is not what he declares, but the authority which he has, that is his justification. It was not material to have inquired what the defendant said when he seized the mare, but only whether he then had a legal authority to justify him. Crowther v. Ramsbottom, 7 T. R. 658 (Lawrence, J.) Dr. Grenville v. the College of Physicians, 12 Mod. 386. The declaration or intention of the defendant, at the time he seized the horse, thus appears to have been immaterial; and as Justice Lawrence said, it was improper to leave it to the jury, since, upon a.plea and demurrer, the execution was “per sc” a legal justification.

Per Curiam. Judgment reversed and a venire dc novo.