McNunis v. Zukosky

• Citation: 89 S.E.2d 354,141 W.Va. 145
• Decision Date: 18 October 1955
• Docket Number: No. 10736,10736
• Parties: John McNUNIS, v. Carl ZUKOSKY.
• Court: Supreme Court of West Virginia

Page 354

89 S.E.2d 354

141 W.Va. 145

John McNUNIS, v. Carl ZUKOSKY.

No. 10736.

Supreme Court of Appeals of West Virginia.

Argued Sept. 13, 1955.

Decided Oct. 18, 1955.

Syllabus by the Court

1. A warrant issued pursuant to the provisions of Code, 62-10-2, usually denominated a peace warrant, is not rendered void by proof showing that the offense alleged in the warrant to have been committed was not committed in the county of the justice of the peace who issued the warrant.

2. To be available as a valid defense res judicata must be pleaded and proved.

3. In the absence of fraud or a wilful misleading of the court, parties litigant are permitted to assume successive inconsistent positions in the course of an action or suit or a series of actions or suits as to questions of law.

Alfred R. Putnam, Tusca Morris, Fairmont, for plaintiff in error.

Roleigh Lee Stubbs, Fairmont, for defendant in error.

GIVEN, Judge.

In this action, one charging false imprisonment and illegal arrest, prosecuted in the Circuit Court of Marion County by John McNunis against Carl Zukosky, the second amended declaration charges that a justice of the peace of Marion County, at the instance of Zukosky, issued a peace warrant which 'was void by reason of the fact that the alleged offense, upon complaint of which said void warrant was issued, purportedly occurred in Monongalia County, West Virginia, whereas the said void warrant was issued' by a justice of the peace of Marion County, and that the plaintiff McNunis was illegally arrested and imprisoned under the void warrant. The defendant demurred to the second amended declaration, and the court overruled the demurrer. The case was tried to a jury. A verdict for the plaintiff in the amount of five hundred dollars was returned, and judgment was entered thereon.

McNunis and Zukosky resided in Marion County. Zukosky owned two farms, one in Marion County and one in Monongalia County. Previously, McNunis had rented from Zukosky the Monongalia County farm, but had surrendered possession thereof to Zukosky prior to the time of the threat alleged in the warrant. McNunis, with Howard Corley, went to the farm in Monongalia County, allegedly for the purpose of collecting a debt from Zukosky. While there, an argument ensued, and it is alleged that McNunis threatened to shoot Zukosky 'between the eyes'. Zukosky then obtained, from a justice of the peace of Marion County, the peace warrant under which McNunis was arrested. The information upon which the warrant was founded, and the warrant, stated that the alleged threat was made in Marion County. It seems clear, however, that Zukosky made no representation as to the county in which the threat was made, but that the justice who issued the warrant merely assumed that the threat was made against Zukosky in Marion County. Upon the trial of McNunis before a justice of Marion County, to whom the case had been transferred by the justice who issued the warrant, McNunis was found not guilty.

Subsequent to his acquittal, McNunis instituted an action of malicious prosecution against Zukosky in the Circuit Court of Marion County. Upon the trial of the malicious prosecution case, a directed verdict was returned in favor of Zukosky, and the action was dismissed, apparently on the ground that the peace warrant was void for the reason that the threat was alleged in the warrant to have been made in Marion County, while the proof established that the threat, if one was made, was made in Monongalia County. Subsequent to such dismissal, the instant action for false imprisonment was instituted and, upon a verdict for McNunis for five hundred dollars, a judgment was entered against Zukosky.

The first question for decision relates to the validity of the peace warrant. The plaintiff contends that the warrant was void for the reason that it alleged the threat to have been made in Marion County, while the proof established that if any threat was made, it was made in Monongalia County, beyond the territorial jurisdiction of the justice who issued the warrant. Defendant contends that the complaint, and the warrant, fully complied with the statute and that the warrant is a valid peace warrant, and that an action for false imprisonment can not be maintained where the arrest was made by virtue of a valid warrant, except where there are charges of unlawful execution of the process.

The pertinent statute, Code, 62-10-2, reads: 'If complaint be made to any justice, that there is good cause to fear that a person intends to commit an offense against the person or property of another, he shall examine the complainant on oath, and any witnesses who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant. If it appear proper, such justice shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before him or some other justice of the county.'

It is axiomatic, of course, that the territorial jurisdiction of a justice can not extend beyond his own county. It will be noticed, however, that the statute does not require that the complainant seeking a warrant thereunder establish that the offense upon which the warrant is based had been committed in the county of the justice issuing the warrant, but merely that their is 'good cause to fear that a person intends to commit an offense'. In the instant case the alleged threat, if made, was an offense in Monongalia County, but the purpose of the peace warrant was not to punish for that offense, but to prevent the commission of any further offense. See State v. Cowger, 83 W.Va. 153, 98 S.E. 71. While the statute does not authorize the issuance of a peace warrant unless an offense has been committed, it does not specifically require that the offense upon which the warrant is based shall have been committed within the territorial jurisdiction of the justice. The question then naturally arises whether such a warrant must be issued by a justice of the county wherein the offense actually occurred, or whether such a warrant may be issued by a justice of any county wherein the complainant may reasonably fear that the threat, the commission of the further offense, may be carried out.

In State ex rel. Yost v. Scouszzio, 126 W.Va. 135, 140, 27 S.E.2d 451, 452, this Court held: '3. A recognizance given under the provisions of Code, 62-10-1 to 3, is for the exclusive benefit of the State, and there can be no recovery of the penalty thereof for or on behalf of any person injured, or the personal representative of one killed, by a breach of its conditions.' In the opinion the Court said: '* * * A recognizance to be of good behavior and to keep the peace is wholly preventive, and not remedial. Its purpose is to deter the person required to give the security from misbehavior in general. It does not purport to be for the indemnity of an individual who may be injured by his misconduct. It is to prevent crimes; not torts. It protects the public at large, not any individual especially. * * *' This being true, it seems clear that the purpose of the statute is to prevent the commission of crimes in any county, regardless of where the offense occurred upon which such a warrant is based. The State is not merely interested in the prevention of crimes in counties wherein offenses have been previously committed, but in the prevention of all crimes in all counties. We are, therefore, of the opinion that the peace warrant was valid and, since an action for false imprisonment can not be maintained on a valid warrant, except where there are charges of unlawful execution of the process, the demurrer of the defendant to the second amended declaration should have been sustained. 'A demurrer is properly sustained to a count purporting to charge false imprisonment where it appears from the count itself that the imprisonment complained of was incident to an arrest under a warrant apparently regular, issued by a public official having authority to issue the same.' Point 5, Syllabus, Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 9168 917. See Williamson v. Glen Alum Coal Co., 72 W.Va. 288, 78 S.E. 94; Ogg v. Murdock, 25 W.Va. 139; ...