State v. . Furguson

76 N.C. 197

• Court: Supreme Court of North Carolina
• Decided: January 5, 1877
• Status: Published

Opinion

Eaircloth, J.

Any officer in the State required to take an oath of office who shall wilfully omit, neglect of refuse to> discharge any of the duties of his office, shall be guilty of a, misdemeanor. Bat. Rev. ch. 32, § 107. This statute embraces the offence with which the defendant was charged and convicted,'to-wit; neglecting and refusing as Coustable ■to execute a Peace "Warrant issued and delivered to him by a Justice of the Peace within his own county.

The defence insisted oil is that as it does not appear that the warrant ivas issued on oath nor on view of the Justice it is void and the officer was not bound to execute it.

An officer acting under void process is a trespasser and must take notice of its character at his own peril. All persons must take notice whether those under whose authority they act could grant such authority.

A Constable need not obey a warrant for a matter not within the jurisdiction of the magistrate but when there is jurisdiction and the warrant is not otherwise void, he as a ministerial officer is obliged to execute it and of course must be j ustified by it. He cannot inquire upon what evidence "the judicial officer proceeded nor into the regularity of his •decision. Welch v. Scott, 5 Ire. 72. A magistrate should uotissue a warrant except on oath or super visum, and if he dobs and innocent parties are arrested, he would be liable in damages to such parties ; but these are considerations for the Justice and not for the Constable. In.this case there is no doubt about the jurisdiction of the Justice.

There is no error. Let th'is be certified to the end that further proceedings may be had according to law.

Per Curiam. - - Judgment affirmed.