Bell v. Clapp — 10 Johns. 263

Majority

p. 267

Bell against Clapp and others.

ALBANY,

August, 1813.

Headnote

the hand and “reciting ¡^“g^' that certain goods, them, had A.Tnd rt“"an<i conceaiof c, andcomOfficer,' to enter the said daytime, and artk“estoWn, ®bm°yi|’bor the person t“dy the^oods b'’fore the justice, is valid warrant,

0fjustification under such a warrant need not state that executed in xbeo^-bl' the^xeeunoa rant, if the may, ancr“ a it, break open other “low of '-'"

THIS was an action of trespass quare clausum fregit, Sc. The declaration contained counts for entering the plaintiff’s dwell* ing-house, and breaking open his doors, &c. and taking away 93 barrels of flour, &c, and also in trespass de bonis asportalis, Sc. in taking and carrying away 100 barrels of flour. The defendants pleaded, separately, not guilty; and two of them pleaded also, specially, in justification, that Charles Christian, before, at, and after, &c. was one of the special justices of the peace in the city of IS cm-York, See. and so being justice, on the 19 th January, 1811, at, Sec. made his certain warrant in writing under his hand and seal, directed to any constable or marshal of the said city, reciting, that whereas information on oath had been given to him, the said Charles Christian, one of the special justices, &c. by William Clapp, of the fourth ward, that one hundred barrels of flour had lately been feloniously taken and carried away by Richard and Isaac Jaques, from the wharf, &c. and that the said one hundred barrels of flour, or a part thereof, Were then coneealed in a cellar of Gideon Jaques, situate, &c. And the said Charles Christian, being such special justice, did, in and by the said warrant, in the name of the people, &c. command and authol-lze them the said constables and marshals, &c. or any of them, with proper assistance, in the daytime, to enter into the cellar of a 1 ^ the said Gideon, situate, See. and there diligently search for the said flour, and if the same, or any part thereof, should be found, then the said constables were, in and by the said warrant, likewise commanded to bring the same so found, together with the said Gideon, or the person in whose custody the same should be found, before him, the said Charles Christian, or some other justice of the peace of, &c. to be dealt with as the law directs, &c. which warrant was delivered to 31. one of the defendants, then being one of the marshals of the said city, to be executed according to law, by virtue of which, &c. he went to the cellar of the said Gideon Jaques, mentioned in the warrant, and which was part and parcel of, and belonging to, the dwelling-house mentioned in the plaintiff’s declaration, and there finding the door thereof shut and fastened, did, in a friendly and peaceable manner, demand and require that the said door should be opened, which was then and

p. 268

there refused; and that thereupon the said M. one of the defendants» in order to execute the said warrant, did break open the said door, as it was lawful- for him to do, See. doing as little damage as pos-' sible, and did search, &c. and took and carried away therefrom ninety-three barrels of flour, being part of the said one hundred barrels mentioned in the said warrant, &c. &c. The other defendant put in a similar plea of justification, being a constable, &c.- and required to assist the said other defendant in the execution of the warrant.

To the plea of justification there was a general demurrer and • joinder.

Woodward, in support of the demurrer,

contended that a search warrant was not a common law process, but a creature-of a statute in England not in force here.^[1] But admitting it to be a common law process, he said the warrant in this case was defective and void; 1. Because it was not stated that the flour alleged to be stolen was the property of any particular person, by name, or of any person unknown, nor did it appeal1 that it was so sworn before the justice.

2. That it did not appear from the plea that the warrant was executed in the, daytime; or when or how it was returnable, or that it was, in fact, returned; nor what was done with the flour seized, which the plaintiff alleged was converted by the defendants to their own use.

3. That the office of special justice being unknown to the common law, his authority should have been set forth in the plea, and the statute creating the office averred or recited.

4. That a warrant to take the person in whose possession the property might be found, without naming the person, is so far illegal and void; and a warrant bad in part is bad in toto.

G. Strong and Slosson, contra,

insisted that it was not necessary to state in a warrant to search for stolen goods in whom the property in the goods belonged. As the writ expressly commanded the officer to execute it in the daytime, the court will presume, until the contrary is shown, that it was so executed.^[2] The property which was the object of the warrant, and thé place w^ere ^ was found, were described with sufficient certainty; and the warrant is as precise and guarded as any to be found in the books which have been sanctioned by the English courts.

The matter set forth in the plea is a justification ■if the trespass. The search warrant was founded on oath, and the information stated that one hundred barrels of flour had been stolen from the wharf, in the first ward, by Richard and Isaac Jaques, and that the same, or a part thereof, was concealed in a cellar of Gideon Jaques. The plea then states that the warrant, being under the hand and seal of the magistrate, (who was one of the special justices of the city of New-York, an officer created by a public statute,) and being directed to the constables and marshals, authorized and required them to enter the said cellar, in the daytime, and search for the flour, and to bring it, together with the said Gideon, or the person in whose custody it might be found, before the justice ; that in pursuance of the warrant, the defendants, the one being a constable and the other a marshal, did go to the cellar, which was part and parcel of the dwelling-house of the plaintiff, and, after being refused entrance, did open the door by force, and seize the flour in as peaceable a manner as possible. This, then, was a valid warrant duly executed by these officers. The warrant had all the essential qualities of a legal warrant. It was founded on oath, and was specific as to place and object, and the stolen goods were taken, and taken in as peaceable a manner as the nature of the case admitted.

In Entick v. Carrington, (2 Wils. 275. 11 St. Tr. 313—316.) Lord Camden admitted a search warrant, so well guarded, to be a lawful authority. The warrant did not state in whom the property of the flour resided, nor was this essential to its validity: a person may even be indicted and convicted of stealing the goods of a person unknown. Nor did it affect the legality of the warrant that it directed the officer to bring Jaques, to whom the cellar belonged, or the person in whose custody the flour might be found. It was impossible for any warrant to be more explicit and particular; and it would, probably, have been the duty of the officer to have arrested any person in possession of the stolen goods at the place designated, without any directions in the warrant, and to have carried him be - fore the justice for examination.

Sir Mathew Hals, in one part of his treatise, (H. P. C. v. 2. 114. 116, 117.) denies to the officer the right of breaking open the door, on a warrant to search for stolen goods. But he, afterwards, (Ibid. 151.) admits this power in the officer, if the door be shut, and if upon demand it is refused to be opened. This ¡ast opinion is founded on the better reason, for search warrants are often indispensable to the- detection of crimes; and. they

p. 270

would be of little or no efficacy without this power attached to *^em- All the checks which the English law, and which even the constitution of the United States, have imposed upon the operation «f these search warrants, and with the manifestation of a strong jealousy of the abuses incident to them, would scarcely have been thought of, or have been deemed necessary, if the warrant did not communicate the power of opening the outer door of a house. In the case of Entick v. Carrington, it was asserted by the counsel for the defendant, that on a search warrant to search for stolen goods, the officer might break open doors, &c. ánd this power was not questioned by the other side, nor by Lord Camden in the able and elaborate view which he took of the legality and effect of these warrants.

The defendants are, accordingly, entitled to judgment upon the demurrers.

Judgment for the defendants.