State v. Wimbush
| Decision Date | 12 March 1878 |
| Citation | 9 S.C. 309 |
| Parties | THE STATE v. WIMBUSH. |
| Court | South Carolina Supreme Court |
A warrant issued upon a statement of facts not sworn to is unconstitutional, null and void.
It is not unlawful to resist an officer attempting to arrest one under an illegal warrant.
BEFORE COOKE, J., AT ABBEVILLE, MAY TERM, 1877.
This was an indictment against Jesse Wimbush and Cyrus Wimbush for resisting a Constable in the discharge of his duty. They were found guilty and appealed.
The case upon which the appeal was heard is as follows:
Henry M. Young, a witness for the prosecution, testified: That he issued two search warrants to search the dwelling houses and other buildings of the above named defendants and others, and warrants to arrest the above named defendants and others that this was the first case in which he had acted as Trial Justice; that the information on which the search warrants were issued was reduced to writing by him and signed by the parties giving it, and that he knew the search warrants produced in Court to be the original warrants issued by him and the papers offered in evidence by the prosecution as the information on which the search warrants were issued to be the information which he reduced to writing and on which he issued the search warrants aforesaid, copies of which information and warrants are as follows:
DUE WEST, S. C., April 5, 1877.
Personally appeared before me J. D. Brownlee, and says that he has reason to believe that the bacon stolen from him on the night of the 23d of March was taken by Ned Wimbush, Jesse Wimbush, J. C. Wimbush and B. L. Young.
J. D. BROWNLEE.
STATE OF SOUTH CAROLINA, Abbeville County .
To the Sheriff or my Special Constable of said County:
Whereas complaint upon oath has been made unto me by J. D. Brownlee that a lot of bacon has been feloniously taken, stolen and carried away out of his house, and that he has cause to suspect, and does suspect, that the bacon, or a part thereof is concealed on the premises of Ned Wimbush, Jesse Wimbush, Cyrus Wimbush and B. L. Young: These are, therefore, to authorize and require you, with necessary and proper assistance, to enter into the said dwelling houses and other buildings of the aforesaid parties, and there to search for the said goods, and if the same or any part thereof shall be found, that you bring the goods so found, and also the bodies of the above named parties, before me, to be dealt with according to law.
Given under my hand and seal this fifth day of April, 1877.
HENRY M. YOUNG, [L. S.]
Trial Justice.
DUE WEST, S. C., April 5, 1877.
Personally appeared before me W. M. Grier, and says that he has reason to believe that three bushels of corn and grist, stolen from him on the night of 23d March, was taken by Cyrus Wimbush, Jesse Wimbush, B. L. Young and Wilson Cowan.
W. M. GRIER.
STATE OF SOUTH CAROLINA, Abbeville County .
By H. M. Young, Trial Justice in and for said State.
To the Sheriff or my Special Constable of said County:
Whereas complaint upon oath has been made to me by W. M. Grier that a lot of corn and grist has been feloniously taken, stolen and carried away out of his crib, and that he has cause to suspect, and does suspect, that the corn and grist, or a part thereof, is concealed on the premises of Cyrus Wimbush, Jesse Wimbush, B. L. Young and Wilson Cowan: These are, therefore, to authorize and require you, with necessary and proper assistance, to enter into the said dwelling houses and other buildings of the above named parties, and there to search for the said goods, and if the same or any part thereof shall be found, that you bring the goods so found, and also the bodies of the above named parties, before me, to be dealt with according to law.
H. M. YOUNG, [L. S.]
Trial Justice.
George W. Bell, a witness for the prosecution, testified that no authority was given to him in writing to execute the warrants, but that the warrants were delivered to him by Henry M. Young, who swore witness to execute the same.
M. G. Zeigler, Esq., Clerk of the Circuit Court for Abbeville County, testified that Henry M. Young had not at any time prior to the trial subscribed before and filed with him any oath of office.
It was proved that the defendants and the other parties named in the two search warrants are all heads of families occupying separate houses, and that the house of B. L. Young is a half mile from those of the other parties.
Defendants' counsel requested His Honor the presiding Judge to charge the jury as follows:
1. That Henry M. Young was not a Trial Justice, and had no authority to issue a warrant, because he did not subscribe and file with the Clerk of the Court, before entering upon the duties of his office, the oath required to be taken on page 194, Section 6, of the Revised Statutes, which is a prerequisite to his exercising the duties of such office.
2. That, assuming Young to be a legal Trial Justice, the acting Constable was not a legal officer, because he was neither a regularly-elected bonded Constable, nor specially appointed in writing for that case, as required by Section 2, page 205, of the Revised Statutes.
3. That, assuming Young to be a legal Trial Justice, and Bell to be a legal Constable, there was no certain definite information on which to issue a search warrant.
4. That the warrant is a general search warrant, and is, therefore, prohibited by the Bill of Rights. Search warrants can only issue upon information on oath that certain specific property has been stolen, and that it is concealed in a particular place named in the affidavit, and the affidavit must set forth reasons for the suspicion that the property is in that place.
5. That in order to constitute a riot three or more persons must have assembled to commit an unlawful act, and must have actually committed some unlawful act.
His Honor refused to instruct the jury as requested, overruling all the points of law made by defendants' counsel, who thereupon filed the following exception:
This His Honor said in his charge-
That the validity of the commissions and the legality of the proceeding were only collaterally involved, and that in the interest of the public justice and the public peace he would overrule all the points of law made by defendants, and that, whether the process was void or not, the defendants did not know it, and therefore could not avail themselves of it.
Please take notice that the defendants appeal to the Supreme Court from the verdict and judgment in the above stated case on the following grounds:
Because His Honor Judge J. P. Reed refused to charge the jury, as requested by defendants' counsel, in the following particulars:
1. That Henry M. Young was not a Trial Justice and had no authority to issue a warrant, because he did not subscribe and file with the Clerk of the Court, before entering upon the duties of his office and before issuing the warrant in this case, the oath required to be taken on page 194, Section 6, of the Revised Statutes, which is a prerequisite to his exercising the duties of such office.
2. That, assuming Young to be a legal Trial Justice, the acting Constable was not a legal officer, because he was neither a regularly-elected bonded Constable, nor specially appointed in writing in that case, as required by Section 2, page 205, of the Revised Statutes.
3. That, assuming Young to be a legal Trial Justice and Bell to be a legal Constable, there was no certain, definite information on which to issue a search warrant.
4. That the warrant is a general search warrant, and, is, therefore, prohibited by the Bill of Rights. Search warrants can only issue upon information on oath that certain specific property has been stolen and that it is concealed in a particular place named in the affidavit, and the affidavit must set forth reasons for the suspicion that the property is in that place. And that His Honor said, in his charge to the jury, " the validity of the commissions and the legality of the proceedings are only collaterally involved, and in the interests of the public justice and the public peace I shall overrule them all [the points of law made by defendants' counsel]; and that, whether the process was void or not, the defendants did not know it, and, therefore, could not avail themselves of it," which was duly excepted to by defendants' counsel before the case went to the jury.
Burt & Graydon , for appellants:
1. If Bell was not a Constable, the appellants were improperly convicted of resisting his endeavors to enter the house of Jesse Wimbush.
2. Bell claimed to be a Constable, not by election, but by appointment of Young, as Trial Justice, under the proviso " that nothing herein contained shall prevent a presiding Judge or a Trial Justice from appointing a Constable to act by virtue of such appointment only on a particular occasion to be specified in writing." -Rev. Stat., Ch. XXVI, § 2, p. 205.
3. If Young was not a Trial Justice, it follows that he could not appoint a Constable, and that Bell was not a public officer, and the appellants should not have been convicted.
4. In the Revised Statutes (Chapter XXV, page 194,) the Governor is authorized to appoint Trial Justices with the consent of the Senate and in the vacation of the Senate; and Section 6 prescribes that " on receiving such commissions, and before entering upon the duties of their offices, such Trial Justices shall take and subscribe before the Clerk of the Court of their respective Counties the oath required by the Constitution, and file the same in his office, unless in Counties in which the Clerk is not qualified according to law," & c.
5. The issuing of the warrant against the...
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