Atchinson v. Spencer

9 Wend. 62

• Court: New York Supreme Court
• Decided: May 15, 1832
• Status: Published

Opinion

By the Court,

Sutheeeahd, J.

It is to be assumed upon this motion that a regular complaint upon oath was made to the magistrate, charging the defendant with an offence prohibited by the act in question; that the warrant was issued upon that complaint, and that the omission to insert the whole complaint, or enough of it to shew the offence, was a mere mistake or inadvertence on the part of the magistrate, and that the defendant was guilty of the offence with which he was charged by the complainant. And the case seems to resolve itself into the question whether it is indispensable to the protection of a magistrate that every warrant which he issues upon a criminal complaint should state upon its face the offence with which the defendant is charged, and for which he is arrested.

Chitty, in his Criminal Law, vol. l, p. 41, says it does not seem j-0 fje absolutely necessary to set out the charge or of-. fence, or evidence in a warrant to apprehend, though it is necessary in the commitment; but that it is advisable, especjajjy jf the warrant be for the peace or good behaviour, to set forth the special cause for which it is granted, in order that the party may come prepared before the justice with sufficient sureties; but that if it be for treason or felony, or other offence of an enormous nature, it is not necessary to state it, and that it seems to be rather discretionary than necessary to set it forth in any case. Lord Hale, 2 Hale, 111, 1 id. 580, says that regularly a warrant ought to state the cause specially, though he admits it would be valid without it. In Boucher’s case, Cro. Jac. 81, it was held that a commitment under a warrant which did not specify the crime the party was charged with, was a false imprisonment, but that the offence need not be specified in a warrant to bring up the party for examination or trial; and the same doctrine seems to be held in the case of The King v. Wilkes, 2 Willes, 158. Vide Bac. Abr. tit. Trespass, p. 574.

The 9th section of the act under which this warrant was issued, 2 R. L. 196, enacts that every justice of the peace, &c. shall immediately, upon information given upon the oath of any person, cause every offender against the act to appear before him, &c. It is the information upon oath that gives the magistrate jurisdiction; and if such jurisdiction is in fact given, though it be not particularly stated in the warrant, or erroneously stated, I apprehend the magistrate is not to be treated as a trespasser. It is undoubtedly proper that every warrant" issued under this act should state the substance of the complaint upon which it was issued ; but I am not aware that it is indispensable that the circumstances which gave the justice jurisdiction in the case should appear on the face of the warrant, in order to protect him from an action for false imprisonment.

Judgment reversed, and venire de novo to Monroe common pleas.