State v. Dean, 48 N.C. 393, 3 Jones 393 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 393, 3 Jones 393

STATE vs. EDMUND S. DEAN.

When a person, not regularly a constable, has been deputed under the Act of Assembly to execute a State’s -warrant, the deputation ceases upon his executing the warrant, by bringing the defendant before a justice of the peace, and returning the process before him.

An authority to convey a prisoner to jail, cannot be given by a justice of the peace by parol.

This was an indictment, tried before his Honor, Judge Dick, at the last Term of Guilford Superior Court.

The charge in the indictment was, that the defendant having been deputed to serve a State’s warrant in a case of assault and battery, was further ordered by parol to take the prisoner to jail, which he failed to do, but voluntarily permitted him to escape. The jury below returned into Court the following special verdict: “That one Nathan Hiatt, an acting justice of the peace, in and for the County of Guilford, on the 20th day of July, 1854, issued a State’s warrant for an assault and battery against one James Wood, directed to any constable or other lawful officer, of said County, to execute and return; that on the 21st day of July, of the same year, Newell R. Sapp, another acting justice of the peace, in and for the said County, entered the following endorsement on the said warrant, viz: ‘Eor the want of a lawful officer, I depute E. S. Dean to execute the ■within warrant. Given under my hand and seal, this 21st day of July, 1854. Signed, N. R. Sapp, [seal].’ That the said E. S. Dean, by virtue of the said warrant and deputation, arrested the said Wood, and returned the said warrant with the defendant, Wood, before Arrington Dilworth, another acting justice of the peace, of the said County, on the same day; that on the way to the house of the magistrate, the defendant asked the said Wood what he would give him to keep him out of jail, in case the justice bound him over for his appearance at Court, when the said Wood told him he would give him four dollars, two dollars in cash, and his note for two dollars more; that evidence was taken before the said justice, of the guilt of the defendant; whereupon he was ordered to enter into recognizance in the sum of $25, for his appearance at the next Court of Pleas and Quarter Sessions, of Guilford County; that the defendant failing to enter into the above named recognizance, the said justice wrote the following mittimus on the said warrant, viz: To the jailor of Guilford County: You are hereby commanded to put into the common jail of Guilford County, James Wood, who fails to enter into recognizance as required above. Given under my hand and seal, this 21st day of July, 1854. Signed, A. Dilwortii, J. P., [seal] which said warrant, with the mittimus thereon, was delivered by the said justice to the defendant, Dean, with directions from the justice to take the said Wood and commit him to the common jail of said County, but that the said directions were not in writing, but by parol; that the defendant took the said Wood into his charge, together with the said warrant, and carried him in the direction towards Friendship, the residence of the said Dean, birt before arriving at that place, voluntarily released Mm, and permitted him to go at large out of his custody, upon his paying him two dollars in cash, and giving his note for two dollars; but whether the defendant is in law guilty, on the above state of facts, the jurors are ignorant, and submit the question to the Court,” &c.

The Court being of opinion, upon the special verdict, that the defendant is guilty, gave judgment accordingly; and the defendant appealed to this Court.

Attorney General and Bailey, for the State.

Morehead, for the defendant.

Battle, J.

The guilt of the defendant depends upon the question, whether he had a legal authority to detain the prisoner James Wood, at the time when he was permitted to make his escape. The defendant was not a regular officer, but he had been properly deputed by virtue of the tenth section of the twenty-fourth chapter of the Eevised Statutes, to execute the State’s warrant, by which Wood had been brought before a justice of the peace, to answer the criminal charge therein specified. Had the prisoner then been permitted to escape, there can be no doubt that the defendant would have been indictable therefor. But we are of opinion, that when the warrant had been returned, and the justice had acted upon the case, the deputation expired, and the defendant had no longer any authority to act under it. The mitti/nms was another, and a very different “ precept or mandate,” which ought to have been delivered to a constable, had one been present; or “ in the absence and for want of a constable,” the j nstice who made it out, ought to have deputed the defendant, or some other person, “ not being a party,” to execute it by carrying the prisoner to jail. But it is said, that the defendant was so deputed by the parol directions of the justice. This raises the question, whether the law required such deputation to be in writing. The defendant’s counsel strenuously contends that it did, and not only so, but that it ought to have been under tbe seal of the justice. In support of this position he relies upon the case of the State v. Worley, 11 Ire. 242, in which it was decided that a seal is essential to a warrant issued by a magistrate to arrest a person for a criminal offence, and that if there be no seal, the warrant is void, and the defendant is justified in resisting its execution. The argument seems to us to be unanswerable. If a regular officer, having a warrant, perfect in all respects except in the matter of a seal, cannot legally seize and detain the person of a citizen, wo cannot see how an authority to do so can be conferred, by parol merely, upon one who is not a known officer. Suppose that while on the way to jail the defendant had refused to go any further, how could he have shown that he had the right to call upon other persons to assist him ? "When arrived at the jail, how could he have satisfied the jailor that the prisoner was rightfully in' his custody, and that the jailor would be justified in receiving and detaining him ? It will not do to say that the mittwnm was written upon the warrant, which the defendant had been lawfully deputed to execute. In truth, it ought not to have been written there, for it was the duty of the justice to keep the warrant and judgment thereon, until he could return the papers to Court. But supposing it to have been properly on the warrant, the papers themselves would have shown, that whatever authority had been conferred upon the defendant, had expired with the execution end return of the warrant. The force of this argument is not weakened by the decision in the case of the State v. Maberry, 3 Strob., S. C. R. 144, The defendant in that case had been a regular officer, but had failed to renew his bond at the proper time, and it was held that he, continuing to act as an officer, could not take advantage of his own neglect. Our opinion is, that the judgment upon the special verdict was erroneous and must be reversed, and a judgment entered for the defendant.

Per Curiam.

Judgment reversed, and judgment for the defendant.