Moser v. Fulk
Citation | 74 S.E.2d 729,237 N.C. 302 |
Court | North Carolina Supreme Court |
Decision Date | 04 March 1953 |
Parties | MOSER, v. FULK et al. No 21 |
P. W. Glidewell, Sr., Reidsville, J. A. Webster, Jr., Leaksville, and Leonard Van Noppen, Danbury, for plaintiff-appellant.
Deal, Hutchins & Minor, Winston-Salem, for defendants-appellees.
Silas Fulk, Reid Joyce and Ralph W. Boyles, the defendants, were acting deputy sheriffs of Stokes County at the times alleged in the complaint. On December 5
'State of North Carolina
'Stokes County §§
'Yadkin Township
'State
v.
'F. S. Fulk, being duly sworn, complains and says, that at and in said county, and Yadkin Township on or about the 7 day of December, 1947, Curtis Moser did unlawfully, willfully, and feloniously charged with public drunkenness, against the form of the Statute in such cases made and provided, and contrary to law and against the peace and dignity of the State.
'F. S. Fulk.
'Subscribed and sworn to before me, the 12 day of Dec., 1947.
or 7, 1947 the plaintiff got into a taxicab at Timmons Crossroads, Stokes County, near Richard Clifton's Store. About 15 or 20 people were there. The three defendants arrested him on a charge of public drunkenness in a public place, took him out of the taxicab and carried him to jail in Danbury, and locked him up. Within 30 or 35 minutes the plaintiff was released from jail. On December 12, 1947 the defendant Silas Fulk swore out a warrant before T. A. Bennett, a justice of the peace of Stokes County, against the plaintiff charging him on or about December 7, 1947 at and in said county and Yadkin Township with public drunkenness. Fulk dictated to Bennett what charge to put in the warrant. On December 12, 1947 the warrant was served on the plaintiff by telling him where to appear that night for trial. On that night he was tried on the warrant by T. A. Bennett, Justice of the Peace, and found not guilty. The affidavit and warrant were introduced in evidence by the plaintiff, and at the trial T. A. Bennett testified he wrote on the warrant 'Dismissed'; 'Nol Pros.', and 'Not Guilty.' All three defendants testified in the trial before Bennett.
Summons was issued July 6, 1949, and served on the defendants July 9, 1949.
The affidavit and warrant are as follows:
Justice's Court
Before T. A. Bennett
Justice of the Peace.
Criminal Action
'T. A. Bennett, J. P.
'State of North Carolina
'To any Lawful Officer of Stokes--Greetings:
'You are hereby commanded to arrest Curtis Moser and him safely keep, so that you have him before me at my office in said county, immediately, to answer the above complaint, and be dealt with as the law directs.
'Given under my hand and seal this 12 day of Dec., 1947.
'T. A. Bennett (J. P. Seal)
Across the top of warrant:
'Warrant for Public Drunkenness
'Summons for the State:
'R. W. Boyles
'Reid Joyce.'
The plaintiff appellant concedes in his brief that his action for false arrest or false imprisonment is barred by the statute of limitations. G.S. § 1-54, Subsection 3.
This question is presented: Construing the affidavit and warrant together, is the warrant void?
An action for malicious prosecution 'presupposes valid process.' Allen v. Greenlee, 13 N.C. 370; Baldridge v. Allen, 24 N.C. 206; Zachary v. Holden, 47 N.C. 453; Parrish v. Hewitt, 220 N.C. 708, 18 S.E.2d 141; Caudle v. Benbow, 228 N.C. 282, 45 S.E.2d 361.
If the warrant upon which the plaintiff was arrested was void, the action for malicious prosecution will not lie. An action for malicious prosecution must be based on a warrant charging a crime. If the warrant charges no crime, it is void, and an action of malicious prosecution cannot be based thereon, for malicious prosecution must be founded upon legal process maintained maliciously and without probable cause. Allen v. Greenlee, supra; Bryan v. Stewart, 123 N.C. 92, 31 S.E. 286; Rhodes v. Collins, 198 N.C. 23, 150 S.E. 492; Parrish v. Hewitt, supra; Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793; Caudle v. Benbow, supra.
A warrant is insufficient and void, if on its face, it fails to state facts sufficient to constitute an offense. However, the strictness required in an indictment is not essential. 4 Am.Jur., Arrest, p. 9; State v. Jones, 88 N.C. 671, 672; State v. Gupton, 166 N.C. 257, 80 S.E. 989.
Where the affidavit upon which the warrant is based sets out the charge in full, and the justice appends the warrant thereto, this incorporates the charge, and makes it part of the warrant. State v. Davis, 111 N.C. 729, 16 S.E. 540; State v. Sharp, 125 N.C. 628, 34 S.E. 264; State v. Gupton, supra. The warrant and the affidavit must be construed together. Young v. Andrews Hardwood Co., 200 N.C. 310, 156 S.E. 501; Parrish v. Hewitt, supra.
Venue can be waived, and a failure to lay the venue properly is not fatal to a justice's warrant. State v. Williamson, 81 N.C. 540. However, neither consent nor waiver can give jurisdiction, and the court will not proceed when it appears from the record that it has no authority. The question of jurisdiction can be raised at any time. State v. Miller, 100 N.C. 543, 5 S.E. 925; Henderson Co. v. Smyth, 216 N.C. 421, 5 S.E.2d 136; State v. Jones, 227 N.C. 94, 40 S.E.2d 700.
'Drunkenness in itself is not a crime at common law, unless attended with such circumstances as to become a public nuisance.' 28 C.J.S., Drunkards, § 14, pp. 558-559. 19 C.J., Drunkards, p. 797.
Mr. Justice Henderson speaking for the court in State v. Waller, 7 N.C. 229, 230, says: See also State v. Freeman, 86 N.C. 683.
The affidavit and warrant in this case do not charge that the public drunkenness of the plaintiff Moser was attended with such circumstances as to become a public nuisance, and thereby a criminal offense at common law is not charged in the affidavit and warrant.
The statute law of North Carolina as to drunkenness is set forth in G.S. § 14-335 and its various sub-sections. The pertinent part as to Stokes County is set forth in sub-section 8: Pub.Laws 1933, Ch. 287 is entitled 'An Act to Amend ...
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...'The affidavit and warrant must be read together, and so construed.' State v. Gupton, 166 N.C. 257, 80 S.E. 989, 991; Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729, and cases There is no contention that the warrants failed to allege facts sufficient to constitute criminal offenses, or that sai......
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...action for malicious prosecution cannot be maintained unless the prior criminal prosecution was based on valid process. Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729 (1953), and cases cited; Byrd, Malicious Prosecution in North Carolina, 47 N.C.L.Rev. 285, 304 (1969). It is otherwise in action......
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