Wheaton v. Beecher

• Citation: 49 Mich. 348,13 N.W. 769
• Court: Supreme Court of Michigan
• Decision Date: 31 October 1882
• Parties: WHEATON v. BEECHER and others.

13 N.W. 769

49 Mich. 348

WHEATON v. BEECHER and others.

Supreme Court of Michigan

October 31, 1882

It seems that the discretionary act of denying a writ of mandamus to compel a sheriff to execute a criminal warrant does not necessarily determine the invalidity of the warrant.

An officer to whom a criminal warrant is delivered for service is not bound to look behind it, if regular on its face and issued from a proper jurisdiction; and if he executes it he cannot be held liable in a civil action for damages, though it be invalid.

A civil action for damages for trespass to the person will not lie against one who has made a criminal complaint, or against his attorney, in a case where the warrant issued thereon is sufficiently regular on its face to protect the officer who executes it.

Error to superior court of Detroit.

Atkinson & Atkinson, and Henry M. Cheever, for plaintiffs in error.

Griffin & Dickenson, for defendant in error.

MARSTON, J.

I do not understand that the material questions raised in this case were disposed of in Beecher v. Anderson, 45 Mich. 543; [S.C. 8 N.W. 539.] In that case a discretionary writ was asked for and refused, under all the circumstances then appearing. In the present case very different considerations are presented. An officer to whom a criminal warrant is delivered by a magistrate may be indicted for refusing to serve or return the same. 1 Bish.Crim.Law, � 350. If no cause or an insufficient cause appear therein and the person accused resists and kills the officer, then according to the extent of the authority of the officer his death may be murder, manslaughter or perhaps justifiable homicide. Hoge v. Bush, 1 Man. & G. 775; cited in Drennan v. People, 10 Mich. 183. The officer is not bound to look behind a regular warrant coming from a proper jurisdiction. In many cases it must be exceedingly difficult for the officer or his advisers to determine whether a warrant is or not defective upon its face, and in view of the peculiar position in which the officer is placed, in all such cases he cannot be held liable in a civil action for damages, for making the arrest. Where a criminal warrant is issued by a magistrate in a case where he has no authority to issue process of that nature, ordinarily no question could arise, but where jurisdiction is given him over the subject-matter, his warrant "reciting the substance of the accusation" will not always show upon its face whether the magistrate did or not have the necessary jurisdictional facts before him. And the officer is not required for his protection to inquire into the facts back of his warrant. Cooley, Torts, 460 et seq. In case the officer is protected, the party making the complaint and his attorneys are also protected against an action in the present form.

Applying what has been said to the present case, will preclude a recovery. The warrant would have been a sufficient protection to the officer and parties for any arrest made thereunder even although a court of competent jurisdiction might in a direct proceeding have held it invalid. I am of opinion therefore that the judgment should be reversed with costs and a new trial ordered.

COOLEY and CAMPBELL, JJ., concurred.

GRAVES C.J.

As I am not able to assent to the judgment to be entered in this case I proceed to state my own views. The action was brought by Wheaton against Beecher and Whittemore for trespass to the person. The jury returned a verdict in Wheaton's favor and the defendants ask a reversal on writ of error and bill of exceptions. The exact injury complained of was an unlawful arrest. Proceedings were taken before a justice of the peace in Marquette county for Wheaton's apprehension to be examined on an accusation for perjury, and his case is, that the justice issued a warrant on which he was taken at Detroit by a Marquette officer; that the warrant was void on its face and that its issue for the purpose of being served on him was due to unwarrantable steps and solicitations of the defendants.

1. It is contended that no arrest was proved. There was evidence for the jury and the question was submitted in accordance with what is laid down in Brushaber v. Stigeman, 22 Mich. 266, and Josselin v. McAlister, 25 Mich. 45, and the finding cannot be revised. Moreover it is not apparent that all the evidence on the subject is returned, and it is a reasonable supposition of law that there was sufficient to justify the proceeding.

2. A further position is that conceding it to be true that an arrest was indeed consummated, yet the defendants did not cause it. There was no evidence, it is said, that Mr. Beecher had any connection whatever with it. Here again the record does not support the objection. We are not advised that the case contains all that was shown on the subject. Whittemore, testifying in another case, had stated that he procured the warrant and in so doing acted as Beecher's counsel, and this statement was offered in evidence by the plaintiff. The defendants objected that it was not admissible because--First, it was privileged; and, second, because the trespass was charged as the joint trespass of both defendants. The court overruled the objection and the testimony was admitted. The exception to the ruling must be confined to the grounds of the objection. Hollister v. Brown, 19 Mich. 163; Martin v. Gould, 69 N.Y. 220; Berks & Dauphin Turnpike Co. v. Myers, 6 Serg. & R. 12; Chicago, etc., R. Co. v. Morgan, 69 Ill. 492; Evanston v. Gunn, 99 U.S. 660.

The defendants saw fit to resist the admission of the evidence on these two grounds and to abstain from setting up any other. No other points were presented to the court and no others were decided. As to everything else there was no objection. The first ground being that of privilege, is not at this stage insisted on by defendants. Nothing is said here in regard to it. There will be occasion to refer to it further on. The second ground is not tenable. The fact that the trespass was laid as a joint trespass was no reason for excluding an admission made by Whittemore alone. What he had admitted while testifying in another case was lawful evidence against himself. The question whether the jury might use it finally to implicate Beecher was entirely distinct and was one to be disposed of by an instruction to the jury. The trial judge went into the subject in his charge and the case is very clear that he submitted the admission as evidence which might be considered for the purpose of connecting Beecher with the trespass. But the accuracy of the charge in this particular is not questioned in the record. The circumstance that this admission or declaration of Whittemore was of a past transaction was not relied on as an objection and so was not mentioned. Whether the jury should use it to fix Beecher was wholly left to the judgment of the court. The subject was not mooted by any request to charge and the instruction which was actually given upon it was not excepted to. It must hence be admitted for the purpose of this review, that the jury were entitled to use Whittemore's admission to connect Beecher with the trespass.

3. It is said that the warrant was a valid process and therefore a complete protection. The sufficiency of the warrant was agitated in Beecher v. Anderson, 45 Mich. 543; [S.C. 8 N.W. 539.] The purpose there was to compel the officer by mandamus to execute it and the mandamus was denied. It was not thought necessary to make an explicit decision on the question of validity; but after all the determination was virtually a ruling that the warrant was not good. The court thought it was not fit to be executed and intimated distinctly that it recited no crime. If its want of fitness to be enforced consisted, as I infer, in its not stating an offense, it was prima facie invalid, and I do not see how we can take a different view without going against the spirit of our former opinion. Now a warrant must contain in some shape, however informal and however abbreviated, an accusation of a criminal offense. Hall v. Rogers, 2 Blackf. 429. The preliminary complaint to the examining magistrate and which is to make it his duty to act must be of a "criminal offense," (Comp.Laws, � 7844;) and before a warrant is issued there must be an examination on the complaint and it must be made to appear that a "criminal offense has been committed," and the "substance of the accusation" must be set forth in the warrant. Section 7845. Hence the warrant must contain the "substance" of an "accusation" of a "criminal offense," and it would be very strange to say that this could be accomplished by inserting the "substance" of an "accusation" of what is not a "criminal offense." It is the warrant that is to notify the accused of the charge against him and for many purposes it is the sole foundation and exclusive guide for other proceedings, and it could not perform its function if left dumb on the subject of the offense.

In a class of cases in which the arrest is made in another county the accused is entitled to be taken at his request before a local magistrate and may be liberated on bail without being taken before the magistrate who received the complaint and heard the preliminary examination. Sections 7847, 7848, 7849 and in certain other cases where the magistrate who heard the complaint and first examination and issued the warrant is either absent or unable to attend the law requires the officer to convey the accused before some other magistrate of the same county, (section 7851,) who is required to proceed and hold the final examination. In these cases the magistrate to officiate on the final examination has nothing to go by except the warrant and his information of the charge must be gathered from that alone. He has nothing...