Welch v. Scott

• Decision Date: 31 December 1844
• Citation: 5 Ired. 72,27 N.C. 72
• Court: North Carolina Supreme Court
• Parties: JOHN WELCH AND WIFE v. EMSEY SCOTT AND OTHERS.

5 Ired. 72

27 N.C. 72

JOHN WELCH AND WIFE

v.EMSEY SCOTT AND OTHERS.

Supreme Court of North Carolina.

December Term, 1844.

The following entry of the appointment of a constable on the records of a County Court, to wit: “It appearing to the satisfaction of the court, present Philip Baker, Esq. (and six others, naming them,) that Emsey Scott has been appointed constable in Capt. Phipps' company, the said Scott comes into court and enters into bond, &c. which is approved by the court,” imports that Scott had been chosen by popular election, according to law, and that it was so decided by the County Court, and therefore the appointment was a valid one.

A seal is indispensably necessary to a warrant, issued by a magistrate to arrest a defendant on a criminal charge.

It is the duty of a magistrate, before issuing a warrant on a criminal charge, except in cases super visum, to require evidence on oath, amounting to a direct charge, or creating a strong suspicion of guilt; and an innocent person, arrested on a warrant issued by a magistrate not on his own view, nor on any oath, would have an action against the magistrate. But the officer executing such warrant is justified, the subject matter being within the magistrate's jurisdiction, though it does not appear upon what evidence it was issued.

The cases of the State v. McDonald, 3 Dev. 468. State v. Curtis, 1 Hay. 471; Burke v. Elliott, 4 Ired. 355, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at Fall Term 1844, his Honor Judge BATTLE presiding.

This was an action for an assault and battery on the feme plaintiff, in which the defendant justified under a State's warrant, issued by a justice of the peace of Cherokee county, and produced on the trial. It was directed to any constable of that county, and commanded him to take Elizabeth Welch, (the plaintiff) and several other persons, and have them before some justice of the peace of the said county, to answer to a charge, on behalf of the State, for an assault on William W. Pearcy, with intent to kill and murder him. It did not purport to have been issued on the view of the justice, nor on a charge made on oath by another person; and it was not under seal, but only under the hand of the magistrate.

The magistrate was examined, and he stated that Percy was dangerously wounded by some person; that it was not in his presence, but that he was credibly informed of it, and that it was done by the sons of Mrs. Welch, and that she encouraged them to do it; that Scott, the defendant, was an acting constable of the county, and that he then commanded Scott orally to arrest those persons and bring them before him, the magistrate, for trial; and the defendant refused to do so, unless he should have a warrant in writing: And that thereupon, without any charge on oath, he issued the warrant and delivered it to the defendant, who proceeded to arrest the persons, including Mrs. Welch, and brought them before him for trial. On the part of the plaintiffs it was further proved, that the defendant came to their house and told Mrs. Welch, that he came to arrest her on the State's warrant, which he then produced. He required her to go with him, but she alleged that she was unwell, and remonstrated against going. One Powell, who was present, then told Scott, the warrant was void, because it was not issued on oath. But the defendant insisted that Mrs. Welch should go with him to the magistrate, and stated to her, that although he did not wish to do any thing he was not obliged to do, yet that he must carry her, and “if she did not go quietly with him, he would put her in strings.” Whereupon she went.

The defendant also gave in evidence a record of the County Court in the following words: “It appearing to the satisfaction of the court, present Philip Baker, Esq. (and six others who are named) that Emsey Scott has been appointed constable in Captain Phipps' company, the said Scott comes into court and enters into bond with, &c. which is approved by the court.”

The counsel for the plaintiffs contended, that it did not appear that the defendant had been duly elected, and, therefore, that he was not a lawful constable. But the court held, that he was.

The counsel further contended, that the warrant was void, because first, it was issued without a charge on oath; and secondly, because it was not under seal. The court held, that the warrant would be sufficient to justify the defendant, though not founded on an oath, if that were the only objection to it. But the court further held, that it was void for want of a seal, and instructed the jury that for that reason the plaintiffs were entitled to recover.

The counsel for the plaintiffs further argued to the jury, that the information of Powell to the defendant, that the warrant was void, was evidence to them of malice on the part of the defendant towards Mrs. Welch. But the court instructed the jury, that the damages were in their discretion, and that, though they might give exemplary damages, if they thought, from the circumstances, the defendant had acted from malice towards the plaintiff or wantonly, yet that the defendant's not regarding the opinion given by Powell, and acting in opposition to it, was not evidence of malice in him.

The jury assessed the plaintiff's damages to 6 1/4 cents; and the court having refused a venire de novo, and given judgment according to the verdict, the plaintiffs appealed to this court.

Francis for the plaintiffs .

No counsel in this court for the defendant.

RUFFIN, C. J.

We concur in the opinion, that the defendant is to be deemed to have been duly in office. The entry on the record of the County Court, is much like that in Fullenwider's case, 4 Ired. 364; and imports, we think, that Scott had been chosen by...