Conner v. Commonwealth

• Decision Date: 12 June 1810
• Citation: 3 Binn. 38
• Parties: CONNER v. the COMMONWEALTH.
• Court: Pennsylvania Supreme Court

3 Binn. 38

CONNER v. the COMMONWEALTH.

Supreme Court of Pennsylvania.

June 12, 1810

IN ERROR.

A warrant of arrest, issued upon common rumor and report of the party's guilt, though it recite that there was danger of his escaping before witnesses could be summoned to enable the judge to issue it upon oath, is illegal, and the constable to whom it is directed is not bound to execute it.

THE plaintiff in error was indicted at an Oyer and Terminer for Northumberland in April last, of the offence charged in the following bill:

" The grand inquest of the commonwealth of Pennsylvania, and for the body of the county of Northumberland, on their oaths and affirmations respectively do present, that on the thirteenth day of December in the year of our Lord one thousand eight hundred and nine, the honourable Thomas Cooper esquire then and yet being President Judge of the courts of Common Pleas and General Quarter Sessions of the peace in and for the eighth judiciary district of the commonwealth of Pennsylvania, and President Judge of the courts of Common Pleas, and General Quarter Sessions of the peace in and for the said county of Northumberland, having authority to hear and determine divers felonies, trespasses and other misdeeds committed in the said county, and having by virtue of his office authority to issue warrants commitments and other process, on the day and year last aforesaid at the county aforesaid did make and issue his certain warrant under his hand and seal in due form of law bearing date the said thirteenth day of December in the year eighteen hundred and nine, in the name of the commonwealth of Pennsylvania, directed to the constable of Derry township, or to any other constable of the county of Northumberland, setting forth, that it appeared to him the said Thomas Cooper FROM COMMON RUMOR AND REPORT, that there was strong reason to suspect Jacob Langs of Derry township in Northumberland county, of having knowingly uttered as true and genuine, certain false and forged notes purporting to be notes of the Farmers and Mechanics' Bank of Philadelphia, and that the said Jacob Langs was likely to depart from and quit the said county of Northumberland, and retreat to parts unknown, before the witnesses to the said uttering could be duly summoned and appear before him the said Thomas Cooper, in order to enable him to issue a warrant for the said Jacob Langs founded upon their testimony on oath, therefore authorizing and requiring them without delay to bring before him the said Thomas Cooper the body of the said Jacob Langs, in order that he might be examined touching the premises, and therein be dealt with according to law; which said warrant afterwards to wit on the sixteenth day of December in the year eighteen hundred and nine at the county aforesaid, to a certain Joseph Conner, then being constable of the township of Greenwood, in the said county, and also one of the constables of the said county of Northumberland, to be executed was delivered, in obedience to which said warrant the said Joseph Conner on the day and year last aforesaid at the county aforesaid, proceeded to the dwelling house of the said Jacob Langs in the said county of Northumberland. And the inquest aforesaid on their oaths and affirmations aforesaid do further present, that the said Joseph Conner late of the said county yeoman so being constable as aforesaid, and having in his hands the said warrant on the said sixteenth day of December in the year eighteen hundred and nine at the county aforesaid, to do his duty in that behalf totally did neglect and wilfully, obstinately, and contemptuously did make default, and did omit and refuse to take the said Jacob Langs, and bring him before the said Thomas Cooper esquire, President Judge as aforesaid, as by the said warrant he was commanded, and by virtue of his said office of constable, he should and ought to have done, to the great hindrance of justice, in contempt of the laws, to the evil example of all others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania. "

The plaintiff in error was convicted upon this bill, and the record of the indictment and sentence removed to this court by writ of error.

Hall for the plaintiff in error argued that the indictment did not set forth any offence, inasmuch as the warrant it recited was absolutely void upon its face, and the constable therefore not bound to execute it.

It was a warrant issued merely upon a common rumor of the party's guilt, without any oath whatever, and without any thing to supply the place of an oath, but a suggestion that the party might escape, before witnesses could be summoned to testify under oath.

This, he said, was in manifest violation of the constitution of the United States, and of the state of Pennsylvania, and repugnant to the first principles of civil liberty.

The sixth article of the amendments to the constitution of the United States, directs, that " the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." And the eighth section of the ninth article of the constitution of Pennsylvania, provides, in nearly the same terms, " that the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that no warrant to search any place or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. "

The intention of these provisions seems to have been to guard against the very mischief that has occurred. It was obvious that cases might arise, where there would be apparent probable cause for issuing a warrant, and yet no one be found to confirm this probability by his oath. There might also arise cases where a prosecutor would be hardy enough...