People v. McLean

• Decision Date: 02 February 1888
• Citation: 36 N.W. 231,68 Mich. 480
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MCLEAN.

36 N.W. 231

68 Mich. 480

PEOPLE v. MCLEAN.

Supreme Court of Michigan

February 2, 1888

Error to circuit court, Mackinac county.

William McLean was convicted of resisting an officer in attempting to arrest him, and sentenced to the penitentiary for two years. He brings error.

Moses Taggart, Atty. Gen., and Henry Hoffman, for appellee.

CHAMPLIN J.

McLean was convicted in the circuit court for the county of Mackinac, for resisting an officer in attempting to serve a warrant upon him, and was sentenced to be imprisoned two years in the state prison. The statute enacts "If any person shall knowingly and willfully obstruct resist, or oppose any sheriff, *** or other officer or person duly authorized, in serving or attempting to serve or execute any process, *** issued by lawful authority, *** shall on conviction be punished," etc. The information sets out that respondent "did knowingly and willfully obstruct resist, assault, and oppose one Peter A. Paquin, an under-sheriff in and for said county of Mackinac, in his said Peter A. Paquin's serving and attempting to serve a warrant for the arrest of William McLean, he, said William McLean, being charged in said warrant with the offense of assault and battery, said warrant being issued by Robert Rutherford, a justice of the peace in and for the city of St. Ignace, against the form of the statute in such case made and provided, and against the peace and dignity of the people," etc. The information was objected to upon the trial, for the reason that it does not appear therefrom that the warrant was issued by lawful authority, and that the allegation that it was issued by Robert Rutherford, a justice of the peace, is not equivalent to the words of the statute defining the offense. There are two things which are necessary to justify an arrest upon a warrant: First, a warrant good upon its face; and, second, an authority in the person who undertakes to act under it. Drennan v. People, 10 Mich. 182. A justice of the peace has no lawful authority to issue a warrant to arrest a person unless upon the complaint on oath of some person showing that an offense has been committed, and that there is reasonable ground to believe that the accused committed the offense. The allegation in the statute, "made or issued by lawful authority," includes the jurisdictional facts and steps which authorizes the person or body who makes the order or issues the warrant to act. It is true that no officer is bound to look behind a warrant good on its face, issued by an officer who prima facie has a right to issue warrants. In statutory offenses, every essential element of the crime as defined by the statute must be averred in the information, either in the words of the statute, or in language substantially equivalent. Hall v. People, 43 Mich. 417, 5 N.W. 449; People v. Husted, 52 Mich. 624, 18 N.W. 388.

If we go back into the history of officers known as justices of the peace, we shall find that originally they were not authorized to issue warrants for the apprehension of offenders. They were first instituted in England in 1326, and their duties were described in the most general terms. By 1 Edw. III. c. 16 they were "assigned to keep the peace;" and by 34 Edw. III. c. 1, they were empowered "to take and arrest all those they may find by indictment or suspicion, and put them in prison." This was in 1360. But neither in these or in any earlier statutes is there any authority conferred upon them to take an information as to the commission of a crime, and issue a summons or warrant for the apprehension of the suspected person. 1 Steph. Crim. Law, 190. The same learned author states that the statutes above quoted gave them no other authority for the apprehension of offenders than was by the common law inherent in every constable, and indeed in every private person. The practice of issuing warrants by justices of the peace came into use by degrees. But their authority to do so was disputed for centuries, and the subject formed a bone of contention between those eminent jurists, Coke and Hale, the former maintaining against such authority and the latter in favor. The granting of warrants, although recognized by various statutes, was not finally set upon an indispensable statutory foundation in England until the enactment of 11 & 12 Vict. c. 42, in 1848. The authority of justices of the peace in this state must be found in the constitution and statutes enacted thereunder, and, as before stated, they can only issue a warrant upon a complaint on oath. To allege, therefore, in the information, that a warrant was issued by a justice of the peace, is not tantamount to avering that it was issued by lawful authority. For the authority is not and never was inherent in the officer, but is conferred under the statute by virtue of the complaint under oath.

It appears from the testimony returned in the bill of exceptions that on the night of the twenty-third of August, 1887, L. J Monteith was sheriff of Mackinac county, and Peter A. Paquin was under-sheriff; that about 10 o'clock in the evening of that day, Justice RUTHERFORD handed the sheriff a warrant for assault and battery against McLean in front of Rutherford's office; that Peter A. Paquin was then present, and the sheriff told him to get into a hack, and go up to what was known as "Red Annie's," a house of ill fame by the road, and arrest McLean if he found him there; that he would take another direction, on the railroad track, and go to another house of ill fame, and search for McLean there; the sheriff had the warrant with him and that...