State v. McCann

• Decision Date: 31 May 1877
• Citation: 67 Me. 372
• Parties: STATE v. JAMES MCCANN, appellant.
• Court: Maine Supreme Court

67 Me. 372

STATE v. JAMES MCCANN, appellant.

Supreme Judicial Court of Maine.

May 31, 1877

ON EXCEPTIONS.

SEARCH AND SEIZURE.

The respondent was tried upon his appeal, and the jury found a verdict of guilty.

It appeared in evidence upon the trial that the complaint and warrant were drawn by Erastus B. Thomas, who was at the time deputy sheriff for the county of Penobscot, said complaint and warrant being drawn by him for, and the complaint signed and sworn to by, Danforth L. Clark, as complainant.

The warrant was served by another deputy sheriff, to whom Thomas acted as aid in making the search under the warrant.

The respondent's attorney, upon this evidence, requested the presiding judge to rule that the complaint and warrant were void, and that the respondent could not be convicted thereon. But the judge declined so to rule, and ruled the complaint and warrant so made to be sufficient in law, and valid. The verdict was guilty; and the defendant alleged exceptions.

W. S Clark for the defendant.

The question is whether the complaint and warrant drawn by Thomas, a deputy sheriff, are void, by reason of R. S., c 80, § 52, relating to sheriffs and deputies, as well as to coroners and constables. It reads:

" No officer aforesaid shall appear before any court or justice of the peace as attorney or advising any party in a suit, or draw any writ, plaint, declaration, citation process or plea for any other person; and all such acts done by either of them shall be void."

" Plaint" is a special term and applies to the complaint in this case. " Process" applies to a complaint and warrant.

The scope of these words is not confined to civil cases. And the reason applies to criminal as well as civil proceedings. It is the business of officers in both classes to serve processes and not to inaugurate them.

L. A. Emery, attorney general, for the state.

Danforth L. Clark was not a party. The state was the party. Clark was no more a party in the eye of the law than was Thomas himself.

If Thomas had signed the complaint, there could have been no question; but no matter who signed it, it was a process in behalf of the state.

By the statute of 1872, Thomas as deputy sheriff was especially charged with the duty of initiating these prosecutions. He was to make complaints where he knew the facts, and to get others to sign the complaints where others knew the facts.

He, Thomas, prepared the complaints in the line of his duty. To prohibit him is to nullify the enforcement law.

The statute of prohibition only refers to civil processes.

APPLETON C. J.

Chapter eightieth of the revised statutes relates to sheriffs, coroners and constables and to their duties.

Section 52 refers exclusively to civil proceedings. The object was to prevent officers of either of the classes mentioned acting as attorneys or advising in any suit or drawing writs, & c., for any other person. But a complaint for a criminal offense is not a suit within the meaning of this section. Criminal proceedings are in the name of the state, not of the party complaining. The complaint is in behalf of the state, not of the complainant. It is by the complainant, not for the complainant. The process issues in the name of the state, not " of any other person." The fine or forfeiture, if there be one, enures to the state, not to the complainant. The judgment is for the state, not for the complainant or " for any other person."

The language of the section relates to civil proceedings. The word " writ" has application to civil proceedings. " Plaint (Fr. plainte, Lat. querela ) is the exhibiting any action, real or personal, in writing; and the party making it is called the plaintiff." Jac. Law Dict. The term declaration is applicable only to civil procedure. Citation is a summons to appear, applied particularly to process in the spiritual court, but adopted in civil procedure from the canon and civil law. " Process" is so called because it proceeds or goes out upon former matter, either original or judicial." Jac. Law Dic. It assumes former matter. The process may be criminal where the " former matter," whence it proceeds or goes out, is criminal. But in the section under consideration there is no reference to any criminal procedure. The words preceding and following have no relation to anything criminal. Its meaning must be determined by the context. Noscitur a sociis. The other words refer to civil procedure and so must this.

A complaint under the liquor law is not a suit " for any party," nor a plea " " for any other person." No words exclusively applicable to criminal procedure, as complaint, warrant or indictment, are to be found in this section. Nor does the reason for its passage apply to...