State v. Boiselle

• Decision Date: 05 June 1928
• Parties: STATE v. BOISELLE.
• Court: New Hampshire Supreme Court

143 A. 704

STATE

v. BOISELLE.

Supreme Court of New Hampshire, Coos.

June 5, 1928.

Transferred from Superior Court, Coos County; Burque, Judge.

Arthur Boiselle was convicted of an offense, and he brings exception. Transferred from a single judge. Exception overruled.

Complaint, for misdemeanor. Trial by jury and verdict of guilty. The defendant excepted to the denial of his motion to set the verdict aside on the grounds that the complaint was void, and that the verdict was against the law and evidence. The complaint was signed by a police officer of Berlin on his arrest of the defendant and was made out by and sworn to before another police officer acting as a justice of the peace.

Harry G. Noyes, of Berlin, Sol., for the State.

Ovid J. Coulombe, of Berlin, and Murchie & Murchie and Alexander Murchie, all of Portsmouth, for defendant.

ALLEN, J. The defendant's position that the statute (P. L. c. 324, § 24) which provides that "any writ, declaration, plea, complaint and warrant or other process made by a sheriff, deputy sheriff, police officer, constable or city marshal for another person shall be void," applies to the complaint here in question may not be sustained.

As far back as 1791 an act relating to sheriffs (Laws 1792, p. 145) included a prohibition against a sheriff or his deputy appearing in any court or before a justice of the peace as attorney to any party to a suit, and declaring void any process, writ, declaration or plea made or drawn by them "for any other person," and this bar of authority and power has continued without change, except in verbal phraseology and in a widened scope, so as to apply the bar to police and other specified officers, and so as to embrace complaints and warrants as a subject of the bar. The purpose of the legislation has been declared to be "to prevent abuses likely to follow from uniting in the same person the offices of sheriff and attorney." Osgood v. Norris, 21 N. H. 435, 437; Sawyer v. Wood, 59 N. H. 347; Edgerly v. Hale, 71 N. H. 138, 144, 51 A. 679.

No abuse or disturbance of justice has been suggested, and none occurs, when one police officer makes out a complaint and warrant for another such officer and administers the jurat as a justice of the peace, and the only claim is that the statute declares such process void. But in thus acting the officer is not rendering a service to another person. The service is to the state as represented by the municipality charged with some enforcement of law and order. The arresting officer is the complainant, not in his own behalf, but in behalf of the state, and the complaint in no sense serves to further any personal interest. The complaint is official and not personal. It is not perceived how any advantage is or may be taken of the defendant in the circumstance that the justice is a fellow police officer with the officer complaining. No purpose which the statute seeks to secure is contravened.

Since the complaint was not made out for any "person," in the meaning of the word as used in the statute to denote an individual having a personal interest, the statute did not operate to make the complaint and warrant void.

The officers were members of the police force of Berlin, and it is provided in the act creating the police commission of that city (Laws 1905, c. 160, § 4) that the members of the police force "shall not engage in any other business or occupation, or hold any state, county or municipal office, except constables" and as such police officers.

A justice of the peace is a state official and the act accordingly bars members of the Berlin police force from holding that office. It does not appear which appointment here, as a justice or as a police officer, preceded the other. If the latter, the appointment as a justice by force of the act was made without authority and the appointee might not legally qualify. Attorney General v. Marston, 66 N. H. 485, 22 A. 560, 13 L. R. A. 670. If the officer was first appointed a justice, a fair construction of the act makes the acceptance of the appointment as a police officer a termination of the office of a justice. The requirement of the act that the members of the police force shall not engage in any other business or occupation and shall hold no other office except as the act specifies, amounts in its contemplation to a removal from other existing office as well as to a bar from other future office while one enters and stays in office as a...