State v. Armistead
| Decision Date | 24 February 1890 |
| Citation | 10 S.E. 872,106 N.C. 639 |
| Court | North Carolina Supreme Court |
| Parties | State v. Armistead et al. |
Special Constables—Authority—Rescue—Mittimus.
1. When a justice of the peace, under Code, § 645, in writing, appoints a special constable without words restricting the authority, this confers a general power to serve all process, and perform all the duties, in regard to that particular case, which a regular constable could do if present.
2. When a prisoner, legally sentenced, is placed in charge of a special officer to convey to jail, the legality of his custody by the officer depends upon the validity of the special deputation of the officer, and not upon the sufficiency of the mittimus, which is to terminate his duties.
3. It is a criminal offense to take by force from the custody of an officer a prisoner legally committed to his charge, to convey to jail; and it is no defense that the mittimus does not comply in all respects with the requirements of Code, § 1238.
(Syllabus by the Court.)
This was an indictment for assaulting an officer, and rescuing a prisoner from his custody, tried before BYNUM, J., at fall term, 1889, Bertie superior court.
One Allen had been arrested for a criminal offense upon a warrant duly issued, and was brought for trial before a justice of the peace. Upon the warrant the justice wrote. " On the trial the justice found Allen guilty, and sentenced him to 10 days' imprisonment in the county jail, and directed the special constable to take him to jail. Freeman testified that he was specially deputized as constable to serve the warrant, and to convey prisoner to jail. The justice gave him the following mittimus: "North Carolina, Bertie county. Mittimus. To the common jailer of said county. You are hereby commanded to take the body of Abram Allen, and him safely keep in the common jail of your county until discharged according to law. This 2nd day of February, 1889.
[Signed] E. H. Walke, J. P. Miies Bag-ley." The defendants excepted to this evidence upon the ground that the mittimus did not conform to the requirements of Code, § 1238. One of the justices who tried the case testified that the judgment as originally indorsed on the warrant sentenced Allen to " be confined in the county jail for ten days, and pay costs;" that the sentence as pronounced at the trial was for "ten days;" and that after the rescue the record was amended by inserting the word " days, " which had been in advertent-ly left out. The warrant and judgment were in evidence. While said Freeman was conveying the prisoner, Allen, to jail, the three defendants pulled said prisoner out of the buggy in which Freeman was carrying him to jail, cut the rope with which he was tied, and set him at liberty. The defendants, it seems, introduced no testimony, but they asked the court to instruct the jury to acquit them upon this evidence, for the reason that it did not appear that Abram Allen was lawfully in custody of said Freeman. The court declined to give this instruction, and defendants again excepted. Verdict of guilty, judgment, and appeal.
The Attorney General, for the State. R. B. Peebles, for defendants.
Clark, J., (after stating the facts as above.) The justice of the peace is the sole judge of the "extraordinary cases" in which he shall exercise the power of appointing a special constable under authority of Code, § 645. State v. Dula, 100 N. C. 423, 6 S. E. Rep. 89. The present case is materially different from State v. Dean, 3 Jones, (N. C.) 393, which was relied on by defendants. In that case the appointment was: "I depute E. S. Dean to execute the within warrant." The deputation therefore expired when the warrant was served, and the subsequent parol order to execute the mittimus was held invalid. The court put their decision upon the ground that, the warrant having been returned, "the deputation had expired, "and Dean had no longer any authority to act. They say that the justice should have deputed the officer in writing to execute the mittimus, and not have appointed Dean by parol; that, if deputed by parol, Dean, in case of resistance, could not show his authority to call on others to execute the mittimus intrusted to him. In the present case the deputation is not limited to serving the warrant. The words are: "J. W. Freeman is hereby appointed special constable. " This authorizes the service of all other process in the case as much as it does the service of the warrant, and puts the appointee, as to the case in which it is made, in the position pro hac vice that a regular constable would have held, clothed with the same powers, and subject to the same liabilities. The same emergency...
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State v. Rollins
... ... 0. 856, 13 S. E. 877, does not apply to cases where an officer is on trial for using excessive force, nor where the transaction is not fully completed and finished if the arrest was invalid, while third parties had no right to issault the officer to take awaythe prisoner, (State v. Armistead, 106 N.O. 639, 10 S. E. 872,) the officer was alsoguilty of an affray, in attempting to hold the prisoner by force, against the efforts of himself and friends. Ex. 8. The twelfth prayer for instructionwas properly modified by inserting the words, "if the arrest was lawful."Ex. 9. The sixteenth ... ...
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Woods v. Commonwealth
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