Smith v. McDuffee
| Citation | 72 Or. 276,142 P. 558 |
| Parties | SMITH v. MCDUFFEE ET AL. [d] |
| Decision Date | 09 June 1914 |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.
Action by David C. Smith against William W. McDuffee and others. From a judgment for defendants, plaintiff appeals. Affirmed.
This is an action to recover damages for an alleged illegal entry upon certain real property and an averred unauthorized search of dwelling houses and other buildings thereon, accompanied by acts of asserted aggravation. The facts out of which this action arose are that a son and a stepdaughter of the plaintiff, David G. Smith, on May 15, 1912, attended a picnic in Grant county, Or., carrying a luncheon consisting of sandwiches containing bacon and eggs, and also taking cucumber pickles and frosted cake. At the entertainment they exchanged their light repast for food consisting in part of cooked beef, both lunches being spread out upon the tables. A woman who partook of the collation having received some of the meat which she supposed had been contributed by the plaintiff's stepdaughter, carried a part thereof home and the defendant Wm. Von Behren, a stock raiser, was informed that the flesh so obtained had been taken to the picnic by members of the plaintiff's family. Von Behren thereupon filed with the defendant Wm. W. McDuffee, a justice of the peace of that county, a charge, of which the following is a literal copy:
Based on this formal accusation a writ was issued in the following language:
Pursuant to such process the defendant Andrew Edling, in company with the other defendants, visited the plaintiff's premises in that county and searched two dwellings and other buildings, but found no such personal property as specified in the writ.
No return was indorsed on the process, but about two weeks after the writ was issued an entry was made in the justice's docket as follows:
The complaint herein alleges, in substance, that the search was made maliciously and without probable cause, particularly setting forth the facts involved and the conduct of the defendants which it is averred aggravated the trespass. The defendant McDuffee separately denied the material averments of the complaint. The defendants Edling and Von Behren jointly answering, set forth the facts with respect to the filing of the affidavit, the issuing of the warrant, and the search which was made pursuant thereto. They further allege, in effect, that at the time the plaintiff's premises were visited they found in charge thereof his wife, who was informed that they had a search warrant, whereupon she requested them to examine the buildings and premises, which invitation they accepted. The reply put in issue the allegations of new matter in the latter answer, and the cause being tried was dismissed, by stipulation, as to McDuffee, but resulted in a verdict and judgment in favor of the other defendants, and the plaintiff appeals.
A. D. Leedy, of Canyon City, and J. P. Winter, of Portland, for appellant. J. E. Marks and Errett Hicks, both of Canyon City, for respondents.
MOORE, P.J. (after stating the facts as above).
It is contended that, in receiving in evidence, over objection and exception, the affidavit for a search warrant, the process issued pursuant thereto, and the excerpt from the justice's docket, copies of which, as hereinbefore displayed, were substituted in the bill of exceptions, errors were committed. These questions will be considered only in so far as they are involved in the remaining inquiry, to wit: An exception having been taken to a part of the court's charge, it is insisted that an error was committed in telling the jury:
"I further instruct you that the defendant Andrew Edling, was a duly appointed officer to execute the search warrant issued by William W. McDuffee, justice of the peace in district No. 6 of this county and state, and that the search warrant in this case was regular upon its face; that an officer acting under a writ which is regular upon its face, as the search warrant was in this case, is justified in following the command of such writ, regardless of whether the same was caused to be issued without probable cause, maliciously or otherwise."
The latter exception presents for consideration the questions: Was Edling a duly appointed special constable? Did the process conform to prescribed rule? A justice of the peace is authorized to appoint some suitable person, not a party, to serve any process or order issued from his court when it appears to him that such service could not be made for want of an officer. L. O. L. § 2518. The defendant McDuffee, as a witness, having identified the affidavit, search warrant, and the docket entry, was asked, in referring thereto on cross-examination: "You have now produced in court and offered in evidence all the record that you have or made at the time with reference to this search warrant; is that right?" He replied: "Yes, sir; that's right." It will thus be seen that Edling's appointment was not evidenced by any writing, indorsed on the writ or otherwise, and that no finding was made, as in the case of North Pacific Cycle Co. v. Thomas, 26 Or. 381, 38 P. 307, 46 Am. St. Rep. 636, that it appeared to the justice that the search warrant could not be served for want of an officer.
The defendant Edling testified that McDuffee requested him to take the search warrant and execute it, which he promised to do, whereupon the justice administered to him an oath of office. The presumption that official duty has been regularly performed was overcome by the testimony referred to. No evidence having been offered at the trial that the search warrant could not have been served for want of an officer, the justice, whose power in this regard is limited by the enactment adverted to, was without authority to nominate Edling, and, this being so, he was not, as said by the court "a duly appointed officer."
A clause of the Bill of Rights reads:
"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." Const. Or. art. 1, § 9.
A search warrant may be issued by a justice of the peace directed to a peace officer commanding him to...
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