Appling v. State

• Decision Date: 23 May 1910
• Citation: 128 S.W. 866,95 Ark. 185
• Parties: APPLING v. STATE
• Court: Arkansas Supreme Court

128 S.W. 866

95 Ark. 185

APPLING v. STATE

Supreme Court of Arkansas

May 23, 1910

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

C. T Wetherby, for appellant.

It is no offense to resist an officer unless in the performance of an official duty. 29 Cyc. 1333-4. The warrant being void they were not officers, but trespassers. Art 2, § 15, Const. 1874; Kirby's Dig., § 5145. The search and seizure law is void, because in conflict with sec. 15 of the bill of rights. 70 Ark. 94.

Hal L Norwood, Attorney General, and IV. H. Rector, Assistant, for appellee.

Failure to overrule a demurrer to a defective affidavit is no ground for reversal. 86 Ark. 436; Kirby's Dig., § 2506. Where the warrant has been issued by a court having jurisdiction of the subject-matter and is regular on its face, it is a sufficient protection to the officer. 21 N.H. 262; 21 Am. Dec. 181; 106 Mass. 296; Fed. Cas. No. 16,484; 17 Wis. 668; 44 Tex.Crim. 468. This is a proceeding in rem, is civil. 72 Ark. 171; 72 Ark. 439. The statute is constitutional. 70 Ark. 94.

McCULLOCH C. J. WOOD and HART, JJ., dissenting.

OPINION

McCULLOCH, C. J.

Appellant was prosecuted before a justice of the peace of Sebastian County, on information filed by the deputy prosecuting attorney, for the offense of obstructing or resisting an officer in the service of process. She was convicted, and appealed to the circuit court, where she was tried and again convicted, her punishment being fixed at a fine of $ 50, which is the minimum prescribed by the statute.

The form of the writ which the officer was executing when resisted is not set forth in the bill of exceptions, but the witnesses testified, without objection, that it was a writ issued by the mayor of the incorporated town of Hartford, Arkansas, to the marshal directing him to search the house of Lem Appling appellant's husband, for intoxicating liquors and to seize the liquors. The witnesses did not testify very clearly about the form of the writ, but speak of it as a search warrant or a seizure warrant; but it is fairly inferable from the testimony that it was an order issued by the mayor directing the officer to search the house for liquor, and to seize the liquor when found. No question was raised on this point, but it is insisted that, as the evidence shows that the writ was issued without an affidavit being filed, the writ was therefore void, and no offense was committed in resisting or obstructing the officer in serving it.

This question has given us no little concern, but after careful consideration we have reached the conclusion that, in the absence of an affidavit, a writ of the kind, regular on its face, is sufficient to protect the officer to whom it is directed, and an individual can not bid defiance to the writ and obstruct its execution without subjecting himself to criminal prosecution under the statute. In reaching this conclusion we are greatly aided by a very satisfactory opinion of the Supreme Court of New Hampshire. State v. Weed, 21 N.H. 262. The authorities are fully collected in that opinion, and the subject is exhaustively treated. The court in that case said: "The general principle, however, we hold to be quite clear: that where the process or warrant is regular and legal in its frame, bearing upon its face all the legal requisites to make it perfect in form, and, so far as can be discovered from its inspection, in substance also, and it appears to have been issued by a court or magistrate having jurisdiction of the subject-matter, and of the person of the respondent, the officer is to be protected in the service, notwithstanding any error or irregularity in the previous issuing of the same, or any imposition practiced upon the court in obtaining it; and that the party resisting the officer is liable;" citing the following cases: Savacool v. Boughton, 5 Wend. 170; Rogers v. Mulliner, 6 Wend. 597; Horton v. Hendershot, 1 Hill 118; Fox v. Wood, 1 Rawle 143; Jones v. Hughes, 5 Serg. & Rawle 299; Paul v. Van Kirk, 6 Binn. 103; Sturbridge v. Winslow, 38 Mass. 83; Wright v. Gould, 1 Wright 709; Brother v. Cannon, 2 Ill. 200; Robinson v. Harlan, 2 Ill. 237, 1 Scam. 237; State v. Curtis, 1 Hayw. 471; Foster v. Gault, 27 S.C. L. 335, 2 McMul. 335.

In Sandford v. Nichols, 13 Mass. 286, Chief Justice Parker of the Supreme Judicial Court of Massachusetts, said: "We think that the defendants could have justified the acts complained of by showing a regular warrant from a magistrate having jurisdiction over the subject, without showing that it was founded upon a complaint under oath. It will not do to require of executive officers, before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal process, as officers so situated would be necessarily obliged to judge for themselves, and would often judge wrong as to the lawfulness of the authority under which they are required to act. It is a general and known principle that executive officers, obliged by law to serve legal writs and process, are protected in the rightful discharge of their duty if those precepts are sufficient in point of form and issue from a court or magistrate having jurisdiction of the subject-matter."

In People v. Warren, 5 Hill 440, it was held that "a ministerial officer is protected in the execution of process regular and legal upon its face, though he has knowledge of facts rendering it void for want of jurisdiction."

It is also insisted that the judgment should be reversed because the evidence fails to show that the officer, when resisted was serving process within the corporate limits of the town of Hartford, neither the mayor who issued the writ nor the marshal who executed it having jurisdiction beyond those limits. It is true that nowhere in the testimony is it directly stated by a witness that the house of Lem Appling was situated in the town. The witnesses all relate the circumstances of the marshal and posse going to Appling's house to search for and seize contraband liquors. They all lived at Hartford, and speak of going "around to Appling's house," or "down to Appling's house" to serve the writ. The marshal testified in the case, and told about standing on the street corner near a certain brick building talking to the mayor, when a man came along and told them that a dray-load of liquor was then being unloaded "down to Appling's house," whereupon the mayor went upstairs and issued the warrant, and he (witness) summoned two others, a deputy sheriff and a constable, to go with him, and they "went down to Appling's residence" to search for the liquor. The evidence showed that appellant's acts of obstructing the officers occurred at Appling's residence. Another witness testified as to the occurrence at Appling's house, and spoke of "coming along the street" when he heard what Mrs. Appling said to the officers. Numerous other witnesses...