Beecher v. Anderson

• Citation: 8 N.W. 539,45 Mich. 543
• Court: Supreme Court of Michigan
• Decision Date: 13 April 1881
• Parties: BEECHER v. ANDERSON.

8 N.W. 539

45 Mich. 543

BEECHER v. ANDERSON.

Supreme Court of Michigan

April 13, 1881

A prosecuting attorney has no right, at his own discretion, to stop criminal proceedings instituted before a justice of the peace, or direct the sheriff not to execute a valid warrant of arrest in his hands for execution. To constitute the crime of perjury, the false oath must not only be as to material facts, but also in itself material. Where the secretary of a corporation swears falsely to an answer in chancery in behalf of the corporation, and in a case where an answer under oath is not called for, he is not liable to punishment for perjury. Complaint for perjury (set forth in opinion) held insufficient.

Mandamus.

John Atkinson and F.A. Baker, for relator.

COOLEY J.

We are asked in this case to issue the writ of mandamus directed to the respondent, who is sheriff of the county of Marquette, commanding him to serve a warrant for the arrest of one William W. Wheaton on a charge of perjury, and for his conveyance before one O'Keefe, a justice of the peace of said county, to be dealt with according to law. The facts of the case are so peculiar that it seems desirable to recite them with more fulness and particularity than is commonly deemed essential.

The warrant was issued November 25, 1879, and delivered to the sheriff on or about the tenth day of December following. The sheriff in response to the application for the writ of mandamus says that:

"Before the warrant was placed in his hands, respondent spoke to J.Q. Adams, prosecuting attorney for Marquette county about the execution of the same; and said Adams told him to arrest said Wheaton, as soon as security for costs was filed with the justice.

"A short time after receiving the warrant, which was soon after such security was filed, respondent saw said Adams told him he had the warrant, and asked him what he should do. Adams then told him that he had examined the warrant, and complaint, with said Mapes; that they were all regular and straight. But that he wanted the money put up as security, instead of a bond, and to delay the service until the money was deposited, and that $150 was the amount that he wanted.

"After a time, Luther Beecher's check, on a Detroit bank, the name of which he does not remember, was sent to respondent, payable to the order of said Adams. And said respondent thinks the same was certified, but is not positive. But there was a condition written on the check, that it was given to secure the bond filed. This was not satisfactory to said Adams. He wanted the money deposited with the county clerk, to indemnify the county againt loss, and told respondent, that as soon as he (respondent) became satisfied that the money was deposited, that he should make the arrest. Respondent returned the check to the drawer of the same, and then the money was deposited.

"When respondent became satisfied that the money was deposited, he went to Detroit, and arrested said Wheaton, on or about the sixth day of February, A.D.1880, in a store, near the city hall, at about 10 o'clock in the forenoon. That he went from there to the office of Griffin & Dickinson, attorneys, with said Wheaton, at his request, where they saw both of said attorneys. The attorneys told said respondent, and said Wheaton, that respondent could not take him through another state, to reach Marquette county, and told Wheaton to use violence in resisting any detention after leaving this state. Respondent then told Wheaton and his attorneys that if he could not take him through another state, he would have to take him through Michigan, by way of Mackinac. They then proposed to give bonds for the appearance of Wheaton, at Marquette. Respondent and his advisers were uncertain whether such bonds could be accepted; and Mr. Griffin went off, as he said, to consult one of the judges of the supreme court; returned, after a time, and said that the judge was of the opinion that the statute did not provide for such cases, but that the common law might include such a case, and protect the sheriff. This was on Friday. Wheaton then agreed to give bonds the next day for his appearance in Marquette. The next day he refused to give bonds, and respondent told him he should start with him for Marquette that evening. Then his attorneys suggested, that if respondent would stay in Detroit, until the next Tuesday, they would pay his expenses, and then they, and respondent, and his attorney, would go to Lansing, where the supreme court would be in session. A writ of habeas corpus should be sued out, served on respondent, and a hearing had in the matter at once. This was agreed to by all concerned, and all separated.

"About 11 o'clock, Saturday night, respondent received, at the Michigan exchange, a note from A.H. Mead, stating that 'Mr. John Q. Adams, of Negaunee, is at the Russell House. If you would like to see him, you can meet him there.' Respondent started at once for the Russell House, and met said Wheaton on the sidewalk, in front of the same. Wheaton had before this told respondent, that he thought Adams did not know anything about the matter. And when they met on the street, Wheaton said: 'Did not I tell you that Adams did not know anything about it, and that you were not acting under his advice.' Respondent then said: 'Either you or Adams are liars,' and asked where Adams was. Wheaton said he was up in the hotel. Wheaton and respondent went up and saw Adams. Adams then told respondent that he had agreed to release Wheaton, on condition that Wheaton would appear at Marquette, at any time that Adams would call for him. Respondent told Adams of the agreement he had made with Wheaton and his attorneys to go to Lansing on the following Tuesday, and that he was not willing to release Wheaton, unless he (Adams) took all the responsibility of the matter upon himself, and that he would see that respondent was paid back the money expended, and for time lost. Adams said he would do so--that he took all responsibility upon himself, and that he had authority, as prosecuting attorney, to do so. Respondent then released Wheaton, and went home. Respondent further says, that he acted in the matter entirely under the instructions of J.Q. Adams, as prosecuting attorney, and that if said Adams had not interfered, respondent would have taken said Wheaton to Lansing, and before the supreme court, if a writ of habeas corpus had been procured, and if he had not been released, or a bond given, would have brought him before the justice, as by said warrant he was commanded. Respondent has been ready and willing, at all times, to execute said warrant, if not interfered with, and has no other cause to show in this matter than as hereinbefore stated."

It thus appears that the respondent raises no question of the sufficiency of the warrant, and that he declines to serve it for no other reason than that the prosecuting attorney of the county instructs him not to do so. His recital of facts makes out a somewhat extraordinary case of interference on the part of the prosecuting attorney, but it is possible that if we had his explanation it would assume a somewhat different aspect. In mandamus cases, however, the party interested is permitted to be heard in resisting the application, and in this case the counsel for Mr. Wheaton have not only contended that the sheriff was justified in obeying the direction of the prosecuting attorney, if not bound to obey it, but they have insisted further that the warrant was invalid, so that the sheriff would have been a trespasser had he assumed to execute it. This last is the point mostly relied upon.

It is not claimed--nor can it be with any plausibility--that the prosecuting attorney has a right at discretion to stop all criminal prosecutions instituted before justices of the peace. The statute gives no such power. It requires him "to appear for the state or county and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal, in which the state of the county may be a party or interested." Comp.Laws, � 529. But by "the courts of the county" is evidently intended the courts of record only; for by the next section he is required to appear to prosecute complainants before a magistrate only when the magistrate should govern his official action somewhat by his advice: he certainly ought very seldom to hold a party to bail or to convict him on trial when the prosecuting attorney in good faith advises him that no crime is made out. It would be proper, also, in many cases that he should seek the advice of the prosecuting attorney in advance of the issue of any warrant, and refuse a warrant even when the complainant is able to make prima facie showing of a technical offence, if the prosecuting attorney is of opinion that the case would fail on full hearing, or that the criminal intent was so far wanting that the cause of justice would not be advanced by the prosecution.

But in this case it does not appear that the magistrate had called upon the prosecuting attorney for his assistance. A warrant had been issued and placed in the hands of the sheriff, and if it was valid in point of law, it had become the duty of the sheriff to execute it. The action of the sheriff could not in any manner be restrained or controlled by the prosecuting attorney; he might with great propriety take his advice in a case where he was in doubt what his duty required of him, but if the advice proved to be erroneous, it would not relieve him from responsibility if in following it, a duty enjoined by law failed of performance.

We must see, then, whether the sheriff in this case had in his hands a warrant which it was his clear duty to obey. The warrant...