State v. Bryson
| Decision Date | 31 January 1881 |
| Citation | 84 N.C. 780 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. EDWARD BRYSON. |
OPINION TEXT STARTS HERE
CRIMINAL ACTION tried on appeal at November Term, 1880, of NEW HANOVER Criminal Court, before Meares, J.
This prosecution commenced in the court of a justice of the peace, where the defendant was tried for a misdemeanor in violating the second section of chapter 219 of the laws of 1879, which section is as follows: “Any person or persons who shall secrete or harbor any such seaman who has deserted from any domestic or foreign vessel in the localities above named knowing that such seaman or seamen have deserted,” &c. When the case was called for trial in the criminal court, it was discovered that both the warrant and the affidavit omitted to charge any offence, that is to say, that the word “knowing” was omitted in both of them. The solicitor moved to amend the warrant by inserting the word “knowing,” the justice of the peace being present in court, and the court granted the motion. The counsel for defendant then submitted a motion to quash upon the ground that the word “knowing” was omitted in the affidavit and that no offence was charged in the affidavit; insisting that the prosecution was of course based on the affidavit and even if the court possessed the power to order an amendment of the warrant, still in this case it could not be done because the person who made this affidavit is beyond the seas, and is not within the jurisdiction of the court. The motion to quash was allowed, the case dismissed, and from this ruling the state solicitor appealed.
Attorney General, for the State .
No counsel for defendant.
The only question presented by the record for our determination, is, whether the warrant is defective because the word knowing is omitted in the affidavit upon which it is based.
A magistrate, without information upon oath, may issue a warrant super visum. But except in that case, it is his duty before issuing the warrant to require evidence upon oath of the guilt, or at least of circumstances affording a reasonable suspicion of the accused. Before the passage of the act of 1868-'69, although it was necessary that every warrant, except for offences committed in the presence of the magistrate, should be founded upon information on oath, it was not essential to its validity that the evidence upon which it was issued should be set out in it. In England it was usual for magistrates to take written affidavits of the charge separate from any statement of the oath in the warrant, so that they might have at all times in their own power evidence in justification of issuing the warrant; and it was not necessary to recite in the warrant the information upon which it was founded. Welch v. Scott, 5 Ired., 72. But the law is now changed in this...
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State v. Sharp
...16 S. E. 540; State v. Wilson, 106 N. C. 721, 11 S. E. 254, and in other cases. The defendant contends that the prior case of State v. Bryson, 84 N. C. 780, is in conflict with these. If it were, the later repeated decisions would govern; but in fact State v. Bryson merely holds that, "the ......
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State v. Price
...however, that the ruling was made upon the ground that the warrant did not recite that it was issued upon a "sworn" complaint. In State v. Bryson, 84 N. C. 780, it is held: "An appellate court, in reviewing the judgment of a justice's court in a criminal action, can only look at the warrant......
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State v. Peters
...the perjury to have been committed in that trial. The question was ruled out on objection by the state, and defendant excepted. In State v. Bryson, 84 N.C. 780, ASHE, J., construing the act which is now Code, § 1133, says that no written affidavit or complaint is essential, and that the app......