Price v. Graham, 48 N.C. 545, 3 Jones 545 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 545, 3 Jones 545

JOHN PRICE vs. LEVI GRAHAM et al.

A warrant issued in a county bordering on the State of South Carolina, charging that the defendant “ committed murder somewhere between this place and the State of Texas,” is void, as being too vague and indefinite.

A warrant to arrest a fugitive from justice, under the 35 ch. 5 sec. of the Revised Statutes, is required to be made and issued by two magistrates, and if issued by one is void. (Altered by Rev. Code, ch. 35, see. 5.)

Por an arrest under a void warrant, trespass vi et wmis, and not case, is tlio proper remedy.

Action on tlie case for a malicious prosecution, tried before bis Honor, Judge Manly, at the Pall Term, 1855, of Henderson Superior Court.

The declaration set forth an arrest of the plaintiff under the following warrant, taken out at the instance of the defendants, viz:

“ State of North Carolina,) Henderson 'County. J

“ Personally appeared before me,-Graham, and made oath that he has reason to believe that John Price murdered John Graham, somewhere between this place and the State of Texas:

“ These are, therefore, to command any lawful officer of tlio said county, to arrest the body of the said John Price, and him safely keep, so that you have him before me, or some oilier justice of the peace of said county, to answer the above charge. Pail not. Given under my hand and seal, this,” &o. Sig’ned by the justice of the peace with a seal annexed.

The plaintiff was arrested by virtue of this warrant, and being brought before two justices of the peace, was discharged.

The defendant objected, that this warrant was a nullity, and that therefore, the present form of action could not be sustained. But his Honor being of a different opinion, so instructed the j ury. Defendants excepted.

Yerdict and judgment for plaintiff. Appeal.

J. W. Wood-fin, for plaintiff.

Baxter and Biolcson, ,for defendants.

Pearson, J.

"We think the action was misconceived, and should have been trespass vi et armis for false imprisonment; upon the ground that the warrant under which the plaintiff was arrested is void and of no force and effect.

The warrant is void for one of two reasons. It is either so vague and indefinite as to locate the commission of the offense at no place; for, somewhere between this place, (to wit, the county of Henderson whence it purports to be issued) and the State of Texas,” is so general and uncertain as to amount to “ nowhere in particular” ; or else, as the county of Henderson adjoins the State of South Carolina, the commission of the offense is located necessarily beyond the limits of this State; so that upon the face of the warrant, the justice of the peace had no jurisdiction.

If it were intended to be a warrant to apprehend a fugitive from justice, it is void; for at the date of the warrant, the statute required it to be issued by two justices of the peace.

Pee Cueiam.

Judgment reversed.